Five Recent Workers’ Comp Cases You Should Know About (11/18/2011) – Paving Worker Strikes Bowling Ball With Sledgehammer, Loses Eye and Workers' Comp Claim

Five Recent Workers’ Comp Cases You Should Know About (11/18/2011) – Paving Worker Strikes Bowling Ball With Sledgehammer, Loses Eye and Workers' Comp Claim

Larson's Spotlight on Death Benefits to Nonresident Aliens, Accidental Injury, Third Party Settlement Proceeds, Work Order Violation, and Prisoners. 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.

PA: Paving Worker Strikes Bowling Ball With Sledgehammer, Loses Eye and Workers' Comp Claim

A Pennsylvania appellate court has affirmed denial of workers' compensation benefits to a paving laborer who sustained a laceration to his right eye that resulted in a total loss of that eye.  Noting that on the day of the injury, the laborer and others on his crew found an old bowling ball near the parking lot where they were working, that a number of workers within the crew took turns using the bowling ball as a shot-put, that a challenge arose as to whether any of them could break the ball with a sledgehammer, and that the claimant suffered his injury when, on his second hit, the ball shattered and a piece of it flew into his eye.  The Workers' Compensation Judge ruled that the actions of the claimant, while careless, did not take him outside the course and scope of the employment.  The Board disagreed, however, finding that claimant had acted in violation of a positive work order-after he struck the ball the first time, it cracked, and his supervisor told him to "knock it off" and then indicated he would not take claimant to the hospital if he were injured hitting the ball.  The appellate court observed that there were three criteria for establishing a positive work order violation: (a) that the injury must be caused by the violation of the work order; (b) that the employee must know about the order; and (c) that the order must implicate an activity not connected with the employee's work duties.  All three criteria existed here and the Board's decision was affirmed.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Pa. Commw. LEXIS 533. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 33.01.

AR: Award of Death Benefits to Nonresident Aliens Affirmed

A judgment awarding dependent benefits to a deceased employee's nonresident parents under Ark. Code Ann. § 11-9-527 (2002) has been affirmed by the Court of Appeals of Arkansas. The court indicated that sufficient evidence was presented that the decedent sent the parents money regularly from the United States while he was working here, that he had supported them since 1990 when he was working in Mexico, and that the money was critical to their support.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Ark. App. LEXIS 738. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 97.07.

NC: Nurse's Assistant Prevails on Injury Claim in Spite of State's Restrictive Definitional of "Accidental" Injury

The Court of Appeals of North Carolina recently affirmed a portion of a decision by the state's Industrial Commission that found that a certified nurse's assistant had sustained an accidental injury arising out of and in the course of her employment to her shoulder when, as she was attempting to change the clothing of a partially-paralyzed resident at her employer's facility, the resident suddenly moved back against her.  It should be noted that North Carolina has one of the most restrictive rules on "accidental" injuries, that generally an employee is injured while carrying on the employee's usual tasks in the usual way, the injury does not arise by accident.  There must generally be some sort of interruption of the employee's normal work routine to make the injury accidental.  The nurse here contended that the normal protocol required two staff members to move patients such as the semi-paralyzed resident, that short staffing on weekends made the effort unusual.  The employer contended that short staffing had become so routine that it was the normal practice.  The appellate court stressed that even if the movement-without help-of the resident was "usual," the unexpected movement of the resident was not.  Substantial evidence supported the finding of an accidental injury.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 N.C. App. LEXIS 2339. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 42.02, 43.01.

NE: In Making "Fair and Equitable" Division of Third Party Settlement Proceeds, Trial Court Could Not Condition Carrier's Reimbursement on Whether Injured Worker Had Been "Made Whole"

The Nebraska Court of Appeals recently reversed a decision by a state district court that found that a workers' compensation insurance carrier was entitled to an "equitable subrogation in the amount of $0.00," where the carrier paid out more than $35,000 in workers' compensation benefits and the injured worker settled his tort claim against a third party whose negligence allegedly caused the worker's injuries for $80,000, but where the worker and the carrier could not agree to a division of the funds.  The carrier argued that it had a subrogation interest in the settlement proceeds to the full extent of its outlay.  The district court disagreed and indicated that after equitable deductions, the carrier should recover nothing.  The appellate court reversed, finding that the district court apparently used a "made whole" or "priority" concept as its starting point for making a division of the settlement proceeds.  It erroneously had indicated the injured worker must be made whole before the carrier was due any reimbursement of its outlay.  The court also indicated the trial court erred in several respects in making its determination of the amount that was available for division under § 48-118.04(2). Because the district court's finding of the amount available for a "fair and equitable" division of the settlement was substantially wrong, and the lesser amount clearly was a material finding and predicate in the trial court's ultimate decision that the carrier would receive nothing from the settlement, the court concluded that there had been no "fair and equitable" division of the settlement.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Neb. App. LEXIS 173. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 117.01.

WY: Prisoner's Injuries from "Head-Butt" by Fellow Prisoner During Argument Over Kitchen Duties Was Not Compensable

The Wyoming Supreme Court recently affirmed a denial of workers' compensation benefits to an inmate who was "head-butted" by another inmate as the two argued over their respective work duties in the prison kitchen.  Applying a special Wyoming statute [Wyo. Stat. Ann. § 27-14-102(a)(xi)(E)] that operates to deny compensability for injuries "sustained by the prisoner during or any harm resulting from any illegal activity engaged in by prisoners held under custody," the high court agreed that the "head-butt" was a battery under the criminal statute, and therefore an illegal activity and claimant was not eligible for workers' compensation benefits.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Wyo. LEXIS 159. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 37.04.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law

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