Larson’s Spotlight on Recent Cases: The Great Recession Catch 22 for Laid Off Worker With No Average Weekly Wage

Larson’s Spotlight on Recent Cases: The Great Recession Catch 22 for Laid Off Worker With No Average Weekly Wage

Larson's Spotlight on Average Weekly Wage, Marijuana Presumption, Slip and Fall, and Paid Break. 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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KY: Great Recession "Catch-22": Injured Volunteer Firefighter Disqualified From PD Benefits-As "Laid-Off" Mechanic, He Had No AWW From Which Benefits Could Be Computed

As if being laid off from his job as a mechanic weren't enough, a Kentucky volunteer firefighter recently learned that the state's Court of Appeals agreed with the Kentucky Workers' Compensation Board and affirmed a decision that he could not recover permanent disability benefits because he had no "regular employment" at the time of the injury and, therefore, no average weekly wages from which to compute his award.  While the firefighter was driving to the scene of an emergency, he was struck by another vehicle and sustained injuries to his back, neck, and shoulder.  Two months prior to the accident, the firefighter had been laid off from his job as a mechanic. Acknowledging that the case turned on statutory construction, the court held that under Ky. Rev. Stat. Ann. § 342.140, in the absence of being engaged in regular employment, the firefighter had no AWW from which benefits could be based.

See Justice v. Kimper Volunteer Fire Dep't, 2012 Ky. App. LEXIS 171 (Sept. 14, 2012).

See generally Larson's Workers' Compensation Law, § 93.01.

AR: Injured Worker Fails to Rebut "Marijuana Presumption"-Injuries Were Not Compensable

An Arkansas appellate court recently agreed that a workers' compensation benefits claimant failed to rebut the presumption under Ark. Code Ann. § 11-9-102(4)(B)(iv) that an accident involving the severance of his fingers was substantially occasioned by the use of marijuana. The court noted that evidence suggested that the claimant had failed to use a "two-handed" method of operating the cutting machine and that the approved "two-handed" method had been instituted for safety reasons.  The court also observed that the worker tested positive for marijuana metabolites and he admitted that marijuana made him less attentive and, further, made it more difficult for him to concentrate.  Substantial evidence supported the Commission's findings.

See Hudgens v. Aid Temporary Servs., Inc., 2012 Ark. App. 471, 2012 Ark. App. LEXIS 592 (Sept. 12, 2012).

See generally Larson's Workers' Compensation Law, § 36.03.

AL: Slip and Fall On Employer's Stairs After Clocking Out Did Not Arise Out of the Employment

An Alabama appellate court recently found that a trial court properly granted summary judgment to an employer in an employee's suit seeking workers' compensation benefits for injuries sustained when the employee, a patient care attendant, slipped and fell on stairs in her employer's medical facility after clocking out from her shift.  At the time of her injuries, the employee was walking to the parking lot to retrieve a folder from her car needed for her college clinicals also located at her place of employment.  She was studying to become a registered nurse, but the employer did not provide financial support for her effort and did not require that she pursue the college degree.  The appellate court agreed that the injury did not arise out of the course of her employment under Ala. Code § 25-5-31 but, instead, occurred while the employee was pursuing her education.

See McDuffie v. Medical Center Enterprise, 2012 Ala. Civ. App. LEXIS 249 (Sept. 14, 2012).

See generally Larson's Workers' Compensation Law, § 13.04, 21.06.

KY: Injuries Sustained While Crossing Street During Paid Break to Obtain Refreshment Arose Out of the Employment

Contrast the McDuffie case, noted immediately above, with a recent decision by an appellate court from Kentucky in which the employee was injured as she walked across the street for refreshment during a paid break from her job duties.  Citing Larson's Workers' Compensation Law and observing that not only was the employee on a paid break, but that the practice by employees of walking across the street from the employer's premises during such breaks was known and condoned by the employer, the Kentucky court affirmed an award of benefits.  The court observed that the outcome would likely have been different if the employee had not been on a paid break.

See US Bank Home Mortgage v. Schrecker, 2012 Ky. App. LEXIS 172 (Sept. 14, 2012).

See generally Larson's Workers' Compensation Law, § 13.05.

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

Larson’s Workers’ Compensation Law

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