Larson's Spotlight on Temporary Total Disability Benefits, Going and Coming Rule, LHWCA Benefits, and Exclusive Remedy Rule. 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.
AR: Injured Worker Performing Light Duty Entitled to Additional TTD Benefits and Attorney's Fees In Spite of Being Discharged for "Insulting" and "Derogatory" Conduct
Some of the most complex disability questions arise when an injured employee first gets some kind of employment after the injury and later becomes unemployed. The employee's subsequent unemployment may be a combination of the physical disadvantage, general economic conditions, the operation of union seniority rules, or other factors. Other things being equal, workers with partial disabilities will ordinarily be the last hired and the first fired. In boom or war periods they may get steady employment. In severe depressions they almost certainly will not. The general rule is that loss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions. Whether this formula can be applied with any precision is often an open question.
Sometimes the causal problem of disability is further complicated by adding to medical and economic factors the further element of voluntary conduct on the part of the employee contributing to the unemployment. This conduct usually takes the form of misbehavior leading to discharge or demotion, or of voluntary quitting. The issues are illustrated by a recent case from the Supreme Court of Arkansas. There a worker sustained a work-related injury, was placed on light duty for a period of time, and then fired for calling his supervisor an "insulting, derogatory, and vulgar name." The employer argued that any subsequent incapacity from earning wages stemmed from the worker's misconduct and not from his injury. Construing Ark. Code Ann. § 11-9-526, the high court reversed the Court of Appeals and affirmed a decision by the state's Workers' Compensation Commission that held that when an employer terminates a claimant's employment due to his misconduct, the employee has not refused employment; rather, his employment has been terminated at his employer's option. Accordingly, the worker had proved that he was entitled to additional temporary-total-disability benefits for the remainder of his disability period, that he was entitled to wage-loss benefits at the rate of five percent, and that he was also entitled to attorney's fees.
See Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 2012 Ark. LEXIS 142 (Mar. 15, 2012).
See generally Larson's Workers' Compensation Law, § 84.04.
KS: Going and Coming Rule No Bar to Recovery Where Employee Received Per Diem for Transportation Expenses and Was Responsible for Transporting His Crew to the Job Site
The Court of Appeals of Kansas recently held that the state's Workers Compensation Board correctly determined that an employee's injury suffered while he was on his way home from a temporary work location arose out of his employment and was not barred by the going and coming rule since the employee was reimbursed for mileage, he was responsible for transporting his crew to and from the job site, he would not have been hired if he did not have the capability to drive and transport his crew, and he received a per diem reimbursement.
See Craig v. Val Energy, Inc., 2012 Kan. App. LEXIS 20 (Mar. 16, 2012).
See generally Larson's Workers' Compensation Law, § 14.07, 15.05.
US: SCOTUS Says Longshore Worker's Benefits Are To Be Computed When Worker First Becomes Disabled
Affirming a decision of the 9th Circuit Court of Appeals, the Supreme Court of the United States recently held that for purposes of the LHWCA, an employee is "newly awarded compensation" when he or she first becomes disabled and entitled to the disability benefits, regardless of when the compensation order was issued. The employee was disabled for a period between 2002 and 2005, but his claim was not adjudicated until 2007. He contended that the national average wage when his claim was first adjudicated in 2007 should be used, rather than the national average wage from 2002 when he was injured, since he was not "awarded compensation in a formal order" until 2007. The Supreme Court disagreed.
See Roberts v. Sea-Land Servs., Inc., 2012 U.S. LEXIS 2318 (Mar. 2, 2012).
See generally Larson's Workers' Compensation Law, § 93.01.
IN: Restaurant Worker's Tort Action Against Employer For Off-the-Clock Fall In Employer's Eating Area Prior to Employee Meeting Is Barred By Exclusive Remedy Defense
An Indiana appellate court recently affirmed the dismissal of a civil action filed by a restaurant employee against her employer for injuries she sustained when she tripped and fell in the employer's outdoor eating area after she had eaten a meal while waiting to attend an employee meeting. The employee had arrived at 3:45 p.m. for the 5:00 p.m. meeting, purchased her food and ate it in the outdoor eating area. She was injured as she attempted to throw her garbage in a designated container. The appellate court agreed that the civil action was barred by the exclusive remedy provisions of the state Workers' Compensation Act, that there was a clear connection between the employer's interest in improving the business by holding employee meetings and the employee's presence on the premises as an employee waiting for the meeting to begin, placed jurisdiction of her claim for compensation for injuries sustained while on those premises squarely within the Act.
See Curry v. D.A.L.L. Anointed, Inc., 2012 Ind. App. LEXIS 88 (Mar. 8, 2012).
See generally Larson's Workers' Compensation Law, §§ 21.06, 100.01.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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