Larson's Spotlight on Traveling Employee, Special Employer, Intentional Tort, and Retaliatory Discharge. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.
NC: Serious Injuries Caused by Employee's Attempt "to Ride" Escalator Rail at Annual Sales Meeting Found Compensable
A North Carolina appellate court recently affirmed a decision by the state's Industrial Commission that awarded extensive workers' compensation benefits to an office manager who fell some 25 to 30 feet to a hard surface while trying "to ride" the railing of an escalator following a "festive" gathering for dinner and drinks associated with the employer's annual sales meeting. The manager worked in Texas and had traveled to Charlotte, NC to attend the four-day meeting, during which various workshops and business meetings were scheduled. The employer had provided alcoholic drinks before dinner, had served wine during the dinner, and paid for drinks in the bar following dinner. At the time of the accident, a group of employees, including the office manager, had begun the return walk to the hotel in which they were staying. The manager climbed onto the escalator railing and attempted to ride it down to the next floor, but fell and sustained serious injuries. A blood alcohol test at the hospital revealed that her blood alcohol level was "sufficient to cause a lack of inhibitory control that contributed to the accident." The employer contended the injury was the result of a deviation from the employment and/or that the injury did not arise out of and in the course of the employment, but the appellate court, following earlier precedent, held that the claim fell within the "well-established" rule set "that a traveling employee will be compensated under the Workers' Compensation Act for injuries received while returning to his [or her] hotel...."
See Evans v. Hendrick Automotive Group, 2012 N.C. App. LEXIS 1469 (Dec. 31, 2012).
See generally Larson's Workers' Compensation Law, § 25.02.
NC: Estate May Proceed in Tort Against "Borrowing" Entity Where Staffing Agreement Between Employment Agency and Borrowing Entity Stated that Worker Was Not Employee of Borrowing Entity
The Court of Appeals of North Carolina recently reversed an order entered by a state trial court that had dismissed, on workers' compensation exclusivity grounds, a civil action filed against a county by the estate of a deceased worker who was killed in a workplace accident at a county landfill. The worker had been supplied to the county by an employment-staffing firm under the terms of a written agreement that clearly stated the worker was not to be considered an employee of the county. The court acknowledged the general rule that when a general employer (the staffing firm) supplies a worker to a special employer (here, the county), the latter becomes liable for workers' compensation only when (a) the employee has made a contract of hire with the special employer; (b) the work being performed is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. Here the appellate court agreed that the first condition was missing: there was no contract of hire between the county and the deceased employee. There was, therefore, no immunity afforded the county under the exclusive remedy doctrine.
See Gregory v. Cleveland County, 2012 N.C. App. LEXIS 1477 (Dec. 31, 2012).
See generally Larson's Workers' Compensation Law, §§ 67.02, 111.02.
OH: Worker's Intentional Tort Claim Under State's "Substantially Certain" Rule Fails-No Evidence That Employer Intended Injury in Spite of Lack of Safety Training
An Ohio appellate court has affirmed a decision of a state trial court that granted summary judgment, on exclusivity grounds, to an employer sued by an employee who suffered a partial amputation of his left thumb as the employee handled a meat-cutting band saw. Construing the statutory provision [Ohio Rev. Code § 2745.01] that allows tort actions to proceed against the employer where that employer committed the tortious act with the intent to injure another or with the belief that the injury was "substantially certain" to occur, the court held that the lack of safety training could not be stretched to bring the claim within the "substantially certain" rule.
See Simonelli v. Fligner, 2012 Ohio 6112; 2012 Ohio App. LEXIS 5276 (Dec. 26, 2012).
See generally Larson's Workers' Compensation Law, § 103.04.
MO: Under Retaliatory Discharge Statute, Aggrieved Former Employee Must Prove That the Filing of Workers' Comp Claim Was Exclusive Factor in Employer's Decision to Fire
Many states provide a remedy to a worker who can show that he or she was discharged for exercising available rights under the state's workers' compensation law [see Larson's Workers' Compensation Law, § 104.07]. Must the discharged employee show that the filing of the workers' compensation claim was the sole reason for the firing? Is it sufficient if the filing of the comp claim was a contributing cause? A Missouri appellate court recently held that the state's statute, Rev. Stat. Mo. § 287.780, requires a showing that the decision to fire was the exclusive cause of the termination.
See Templemire v. W&M Welding, Inc., 2012 Mo. App. LEXIS 1639 (Dec. 26, 2012).
See generally Larson's Workers' Compensation Law, § 104.07.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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