Larson's Spotlight on Exclusive Remedy, Co-Employee Exclusivity, Psychiatric Condition, and Violation of Safety 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.
IA: Exclusive Remedy Defense Stands In Spite of Less than "Adequate" Recovery Under Act
Distinguishing an earlier decision by the state's supreme court [Wilson v. IBP, Inc., 558 N.W.2d 132, 137 (Iowa 1996)], that had held that an injured worker could proceed, at least in limited circumstances, against the employer where the workers' compensation act failed to provide "an adequate" remedy, an Iowa appellate court, quoting Larson's Workers' Compensation Law, recently held that an estate of a deceased worker could not proceed against the employer on the grounds that its recovery was not adequate-under the appropriate AWW computation statute, the death benefits for the estate of a town mayor who was shot and killed during a council meeting could only be computed based upon his $4,800 annual salary as mayor and could not include some $39,000 in additional earnings he enjoyed from working full-time at an electrical firm. That the Act did not provide what the estate considered to be "adequate" benefits did not mean the exclusive remedy provisions of the Act could be avoided. For additional discussion, see http://www.workcompwriter.com/iowa-lack-of-adequate-remedy-does-not-mean-exclusive-remedy-provision-may-be-circumvented/.
See Estate of Brehm v. Dubuque Community Sch. Dist., 2012 Iowa App. LEXIS 820 (Oct. 3, 2012).
See generally Larson's Workers' Compensation Law, § 100.04.
NY: Plaintiff Fails to Dodge Baseball, But Successfully Avoids Co-Employee Exclusivity Defense
A New York appellate court recently reversed a trial court's order that had grant summary judgment to the defendant, a co-employee of the plaintiff, on exclusivity grounds. The plaintiff alleged that the defendant threw a baseball and struck plaintiff in the face. The appellate court acknowledged that N.Y. Workers' Comp. Law § 29 ) stated that workers' compensation is the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ." The court added, however, that the words "in the same employ" were not satisfied simply because both plaintiff and defendant had the same employer. In order to have the protection of the exclusivity provision, the defendant must have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort. The court concluded that plaintiff had raised a triable issue of fact as to whether the actions of defendant were within the course and scope of the employment.
See Johnson v. Del Valle, 2012 N.Y. App. Div. LEXIS 6407 (Sept. 28, 2012).
See generally Larson's Workers' Compensation Law, § 111.03.
WV: Court Reiterates Three-Step Process Required When Claimant Seeks to Add Psychiatric Condition to Claim
Citing its earlier decision in Hale v. West Virginia Office of Ins. Comm'r, 228 W.Va. 781, 724 S.E.2d 752 (2012), a West Virginia court recently stressed that a three-step process must be undertaken when a claimant seeks to add a psychiatric condition as a compensable injury to his/her claim. The claimant's treating physician refers the claimant to a psychiatrist for an initial consultation; following the initial consultation, the psychiatrist is to make a detailed report consistent with the procedure described in West Virginia Code of State Rules § 85-20-12.4; and the claims administrator, aided by the psychiatrist report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim. In the instant case, since the claimant was not afforded such an initial psychiatric consultation, the case was remanded to rule on claimant's alleged depression and anxiety.
See Biermann v. West Virginia Office of Ins. Comm'r, 2012 W. Va. LEXIS 694 (Oct. 2, 2012).
See generally Larson's Workers' Compensation Law, § 56.04.
PA: Amusement Park Worker's Violation of Safety Rule Results in Disqualification from Benefits
In an unpublished decision, a Pennsylvania appellate court recently affirmed the denial of workers' compensation benefits to an amusement park worker who sustained injuries when she was struck by a roller coaster, finding that she had abandoned her employment when she left the safety of the operator's position and ventured out on the tracks while the coaster was still in motion. The court contrasted the action of performing one's tasks in a negligent manner, which would not negate workers' compensation benefits, and abandoning one's job duties and engaging in behavior disconnected from the essential functions at work. The employee's violation of her employer's positive work order removed her from the course and scope of her.
See Keziah v. Workers' Comp. Appeal Bd. (Dutch Wonderland), 2012 Pa. Commw. Unpub. LEXIS 748 (Oct. 4, 2012).
See generally Larson's Workers' Compensation Law, § 34.03.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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