Larson's Spotlight on Sick Building Syndrome, Wrongful Death and Exclusive Remedy, Retaliatory Discharge, and Unexplained Fall. 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.
MD: Appellate Court Bars Medical Expert Testimony Regarding "Sick Building" Syndrome
It is axiomatic that reliance on lay testimony and administrative expertise is not justified when the medical question is no longer an uncomplicated one and "carries the factfinders into realms that are properly within the province of medical experts" [see Larson's Workers' Compensation Law, § 128.02]. On the other hand, just because a party has a purported export willing to testify as to the medical question at stake, that does not mean the expert is free to express his or her opinion; the opinion must be based generally upon generally accepted scientific and medical standards. Illustrating this important point, a Maryland appellate court recently reversed a trial court's decision that would have allowed testimony by a physician related to claims by various employees that they had suffered an accidental injury or occupational disease, known as sick building syndrome, as a result of alleged work-related exposure to water damaged buildings. Applying a Frye-Reed analysis [see Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) and Reed v. State, 283 Md. 374, 389, 391 A.2d 364 (1978)], under which Maryland courts require that before a scientific opinion can be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field," the court ruled the testimony inadmissible.
According to the court, the employees' expert used differential diagnosis to come to his opinion regarding medical causation. The court added that differential diagnosis was "a scientific method that laymen would refer to as the process of elimination." Their expert testified that there were scientific publications that supported the theory that exposure to water damaged buildings caused the human health effects at issue in the case. The court noted, however, that another expert testified that there was scientific research that provided there was no association between exposure to mold and certain human health effects, or in the alternative, that more research was necessary to establish any such relationship. The appellate court said that while unanimity was not required to establish general acceptance, nevertheless, it believed that the articles demonstrated that there was a genuine controversy within the scientific community with regard to whether exposure to water damaged buildings caused the human health effects testified to by the employees' expert.
See Montgomery Mut. Ins. Co. v. Chesson, 2012 Md. App. LEXIS 94 (Aug. 29, 2012).
See generally Larson's Workers' Compensation Law, § 51.05, 128.02, 130.06.
MO: Boyfriend's Fatal Shooting of Employee Did Not Arise Out of the Employment
A Missouri appellate court recently reversed a decision by a state trial court that had sustained a defendant-employer's motion for summary judgment in a wrongful death action filed against it and others by parents of an 18-year-old employee who was shot and killed by her boyfriend at her work premises as her shift ended one evening. At the trial court level, the employer successfully contended that the parents' wrongful death action was barred by the exclusive remedy provisions of the Missouri Workers' Compensation Act. The appellate court disagreed, indicating the exclusivity defense was available to the employer only if the employee's death occurred in the course and scope of her employment. That was not the case here. They boyfriend had physically assaulted the employee the night before, came to the work premises during the day and forced open a locked door. He came back later with a gun, fatally shooting her and then turning the gun on himself. The workplace was merely the scene of the assault; it was not causally connected to the shooting.
See Flowers v. City of Campbell, 2012 Mo. App. LEXIS 1062 (Aug. 31, 2012).
See generally Larson's Workers' Compensation Law, § 8.02.
TX: Employee May Not Maintain Retaliatory Discharge Action Against Non-Subscribing Employer
A Texas appellate court recently affirmed a decision by a state district court that had granted summary judgment in favor of a nursing center in a retaliatory discharge lawsuit filed against it by a former employee, a cook, who sustained a strained back while lifting some 50 pounds of food items and who was terminated by a supervisor when the cook complained about the injury. The defendant nursing home contended that since it was not a subscriber to the Texas Workers' Compensation Act, it could not be liable for retaliatory discharge. The appellate court agreed. The appellate court added that even if the nursing home had held itself out as a subscriber, it would have made no difference; only subscribing employers can be subject to § 451.001 retaliatory discharge claims.
See Addison v. Diversified Healthcare, 2012 Tex. App. LEXIS 7269 (Aug. 28, 2012).
See generally Larson's Workers' Compensation Law, § 104.07.
TX: Court Affirms Death Benefits in Unexplained Fall Case
A Texas appellate court recently affirmed the judgment of a state trial court, entered on a jury verdict, that found a worker sustained fatal injuries in a fall on a level, apparently unobstructed floor. The worker, who suffered from Type 2 diabetes, was overweight and suffered from high cholesterol levels that put him at a heightened risk of stroke. Testimony indicated that there were no chemicals, noxious fumes, or anything else that would have caused the worker to fall. The area where the fall occurred was even monitored by videotape and nothing particularly untoward appeared on the recordings. In any event, the worker sustained skull fractures from the fall to the concrete floor, was hospitalized, and died some seven days later. Calling it "unquestionably a close case," the court held that there was sufficient evidence favorable to the finding of a reasonable factfinder. The worker was performing his job duties when he fell, the floor on which he hit his head was at the employer's premises, and death ensued.
See Ace Fire Underwriters Ins. Co. v. Simpkins, 2012 Tex. App. LEXIS 7330 (Aug. 30, 2012).
See generally Larson's Workers' Compensation Law, § 7.04.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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