Workers' Compensation

Larson’s Spotlight on Recent Cases: Gratuitous Furnishing of Company Truck

Larson's Spotlight on Company Truck and Employee Travel, Wrongful Death, Minimal Income, 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.

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TX: Gratuitous Furnishing of Company Truck Insufficient to Bring Travel Within Course and Scope of Employment

If the trip to and from work is made in a truck, bus, van, car, or other vehicle under the control of the employer, an injury during that trip is ordinarily incurred in the course of employment. Some states have created an exception, however, where the provision of the vehicle was on an informal and gratuitous basis. In that regard, a Texas appellate court recently reversed a final judgment rendered in favor of the widow on her claims for workers' compensation benefits where the evidence showed that the employer provided the employee with a company truck, but failed to establish why the truck was furnished. The court indicated that the mere gratuitous furnishing of a vehicle by an employer to the employee as an accommodation was not sufficient to bring an employee within workers' compensation protection. Nor did the evidence show that the employee was on a special mission at the time of the accident. Instead, the evidence showed that he was traveling on his customary route to his regular worksite.

See American Home Assurance Co. v. De Los Santos, 2012 Tex. App. LEXIS 7891 (Sept. 19, 2012)

See generally Larson's Workers' Compensation Law, §§ 15.01, 15.03

KY: Electric Cooperative Shielded by Liability for Death of Subcontractor’s Employee During Ice Storm

The Court of Appeals of Kentucky recently affirmed an order allowing summary judgment to a rural electric cooperative in a wrongful death action filed by the personal representative of a subcontractor’s employee who died while restoring power in an ice storm. The court held that because restoring electrical power was a regular and recurrent part of the cooperative's business under Ky. Rev. Stat. Ann. § 342.610(2)(b), the cooperative was a contractor under Ky. Rev. Stat. Ann. § 342.690(1) and was entitled to workers' compensation immunity. The court acknowledged that the size and ferocity of the storm was unusual and had resulted in a federal emergency declaration and that it was necessary for the cooperative to seek outside assistance in restoring power, nevertheless, such work was part of the cooperative's regular and recurrent work.

See Reichwein v. Jackson Purchase Energy Corp, 2012 Ky. App. LEXIS 185 (Sept. 21, 2012)

See generally Larson's Workers' Compensation Law, § 111.04

LA: Minimal Income as Election Official and as Neighbor’s “Watchman” Disqualified Employee From Permanent Total Disability Benefits

Acknowledging that the amounts earned by an employee were minimal—$75 each election, for receiving and safeguarding voting machines in his voting precinct before and after each election, and $25 to $50 per month for watching over his neighbor's property—a Louisiana appellate court recently held that under the clear wording of La. Rev. Stat. Ann. § 23:1221(2)(b) and (d), the employee was not entitled to receive permanent total disability benefits.

See Aucoin v. Kansas City So. Rwy., 2012 0144 (La.App. 1 Cir. 09/21/12), 2012 La. App. LEXIS 1181

See generally Larson's Workers' Compensation Law, § 83.03

OH: Court Carves Out Limited Exception to 90-Day Notice Requirement for Retaliatory Discharge Claims

The Ohio retaliatory discharge statute, R.C. 4123.90, provides that no retaliation claim may be maintained unless the employer receives written notice of the alleged violation of the statute from the employee within the 90 days immediately following the "discharge." In the instant case, the discharged employee alleged that he did not learn he had been discharged until almost six weeks after the date the city claimed the discharge occurred. The trial court accepted the allegation as true for purposes of its analysis, but it ruled that the allegation was not relevant to, and did not delay the commencement of, the 90-day period. The appellate court held that in general, "discharge" in R.C. 4123.90 meant the date that the employer issued the notice of employment termination, not the employee's receipt of that notice or the date the employee discovered that he or she might have a claim for relief under the statute.  Nevertheless, it carved out a limited exception, the prerequisites for which are (a) that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and (b) could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice of the employee's claim that the discharge violated R.C. 4123.90 commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.

See Lawrence v. City of Youngstown, 2012 Ohio 4247, 2012 Ohio LEXIS 2258 (Sept. 20, 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.

Larson’s Workers’ Compensation Law

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