Larson's Spotlight on Retirement, Tort Action Against Carrier, Toxic Tort and Exclusive Remedy, and Snake Bite. 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.
OH: Workers' Retirement Was Not Voluntary; Award of Additional TTD Benefits Was Supported By Evidence
When a claimant is unable to obtain employment because of his or her physical condition, medical evidence that the claimant could perform such work if it were available generally will not defeat the status of total disability. Sometimes, however, there is an issue as to whether the claimant has withdrawn from the labor force altogether, as by devoting full time to obtaining an education, or by electing to retire. If the decision to retire is connected to the industrial injury, however, the claim will usually not be defeated. For example, an Ohio appellate court recently held that the state's Industrial Commission did not abuse its discretion by finding that the employee did not voluntarily abandon her employment as some evidence supported its conclusion that her retirement was injury-induced. The employee testified that she would not have retired but for her shoulder injury. This was bolstered by the fact that several months prior to her injury, she refused a retirement buyout. The court agreed that the financial implications of her retirement were relevant to the determination of her motivation for retiring, but not determinative. The critical fact for purposes of determining whether the employee had voluntarily abandoned the workplace was whether her shoulder injury was causally related to her retirement--not whether she could have continued to work in a light-duty capacity.
See State ex rel. AT&T Teleholdings, Inc. v. Industrial Comm'n (Warner), 2012 Ohio 3380, 2012 Ohio App. LEXIS 2973 (July 26, 2012).
See generally Larson's Workers' Compensation Law, § 84.04.
NJ: Injured Employees May Not Proceed in Tort Against Carrier for Delays in Paying Compensation or Authorizing Treatment
The Supreme Court of New Jersey, in a divided decision, recently held that an injured employee does not have a common law right of action against a workers' compensation carrier for pain and suffering caused by the carrier's delay in paying for or authorizing treatment in as much as the workers' compensation system was designed to provide injured workers with a remedy outside of the ordinary tort or contract remedies cognizable in the state court system. The court indicated that in amending the Workers' Compensation Act in 2008, the Legislature rejected a provision that would have given the compensation courts broader permission to authorize a resort to the Superior Court and adopted a remedy that permits compensation courts to act through a contempt power. The court concluded that to allow a direct common-law cause of action against a carrier would undermine the workers' compensation system by substituting a cause of action that would become the preferred manner of securing relief.
See Stancil v. ACE USA, 2012 N.J. LEXIS 823 (Aug. 1, 2012).
See generally Larson's Workers' Compensation Law, §§ 104.05, 114.04.
PA: Worker and Spouse's Toxic Tort Action Against Dental Lab Employer For Failure to Warn of Dangers of Beryllium Held Barred by Exclusive Remedy Provisions of Workers' Comp Act
The Superior Court of Pennsylvania recently affirmed summary judgment in favor of a dental laboratory, the former employer of the husband in a tort action alleging that the employer had failed to warn its employees of the general dangers of beryllium and did not employ the most stringent safety measures available. The husband was diagnosed with chronic beryllium disease, after working in different dental labs for almost 30 years. The Superior Court agreed that the plaintiffs had not sufficiently stated a prima facie claim for fraudulent misrepresentation, as there was no evidence that the lab intended to mislead the employee nor was there evidence that the lab had deliberately misrepresented the dangers of beryllium in order to induce him to continue employment. The cause of action was barred by exclusivity.
See Kostryckyj v. Pentron Laboratory Tech., LLC, 2012 PA Super 152, 2012 Pa. Super. LEXIS 1594 (July 27, 2012).
See generally Larson's Workers' Compensation Law, §§ 100.03, 104.03.
AL: Appellate Court Reverses Award of Benefits for Rattlesnake Bite
An Alabama appellate court has reversed an award of workers' compensation benefits to a logging truck driver who sustained severe injuries-he was comatose for several weeks, stayed in an ICU unit for more than 30 days, and did not return to work following the incident-when he attempted to "capture" a rattlesnake that he and other workers spied on a public road after they had finished their work day and as they were being transported to their personal vehicles in a company-provided vehicle. Finding that the snakebite occurred during the course of the employment, but did not arise from it, the court discounted the truck driver's argument that the attempt to capture the snake was sufficiently connected to the employment, since poisonous snakes were a hazard within the logging industry and the employer benefitted, at least indirectly, from the effort. The court indicated that the risk of being bitten was personal, that the connection with the workplace was too remote to support an award.
See Mercy Logging v. Odom, 2012 Ala. Civ. App. LEXIS 198 (July 27, 2012).
See generally Larson's Workers' Compensation Law, §§ 4.02, 29.01.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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