Larson's Spotlight on Dual Persona, Wages in Lieu of Compensation Benefits, Violation of OSHA Standards, and Personal Deviation. 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.
SC: High Court Adopts Larson's "Dual Persona" Doctrine, At Least in Limited Circumstances
Responding to a certified question by the U.S. District Court for the District of South Carolina, the Supreme Court of South Carolina recently held that the state recognizes the "dual persona" doctrine" as that doctrine is described in Larson's Workers' Compensation Law. Under that doctrine, an "employer may become a third person, vulnerable to tort suit by an employee, if-and only if-it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person." In the instant case, a soaking vat had been designed and constructed by company A, which later merged with another firm under circumstances that company B became the surviving corporation. As part of the merger, B assumed A's liabilities. After the merger, the employee came to work for company B and sustained fatal injuries when he fell into the open vat. His estate sued the employer, company B, contending that it had a separate persona, since company B had assumed the obligations of company A and could be liable in spite of the exclusive remedy provisions of the South Carolina Comp Act. The Supreme Court indicated specifically that it was not deciding whether the dual persona doctrine was applicable to the underlying case; that determination was for the U.S. District Court.
See Mendenall v. Anderson Hardwood Floors, Inc., 2013 S.C. LEXIS 21 (Feb. 13, 2013).
See generally Larson's Workers' Compensation Law, § 113.01.
LA: Allowing Injured Employee to Seek Medical Care for Injury "On Company Time" Does Not Operate to Stop the Running of the Statute of Limitations
The prescription period-the time after which the claim is barred by the appropriate statute of limitations-is ordinarily interrupted if the employer voluntarily pays the injured employee wages in lieu of compensation benefits. Wages in lieu of compensation are ordinarily deemed applicable when the services rendered by a disabled employee after an accident are not commensurate with the wages paid and the employee does not actually earn all of his pay. In most jurisdictions, the underlying test is whether the injured employee actually earned the wages paid to him or her after the accident. A Louisiana appellate court recently held that the mere fact that the employer allowed the employee to receive treatment for her injury while she was on company time-and, therefore, not technically "earning her pay"-was insufficient evidence to support a finding that the wages paid during those short periods of time were "in lieu of compensation benefits." Accordingly, the employer's objection to the filing of a disputed claim of compensation after the prescription period had expired was appropriate and the denial of the claim affirmed.
See Dupre v. Surbo Tubular Servs., Inc., 2013 La. App. LEXIS 245 (Feb. 15, 2013).
See generally Larson's Workers' Compensation Law, §§ 82.01, 126.07.
IA: Violation of OSHA Regulations and Employer Safety Standards Did Not Alone Constitute Gross Negligence That Would Support Co-Employee's Liability for Worker's Injuries
\The action, on the part of several co-workers, in placing unmarked pieces of plywood over an open stairwell hole was not the sort of action that amounted to gross negligence, held an Iowa appellate court recently. Accordingly, the co-employees were entitled to summary judgment in the civil action filed against them by a worker who fell through one of the holes and was injured when he struck the concrete floor some eleven feet below. The co-employees could not have known that injuries would be probable, as opposed to merely possible, where the practice was relatively common and no one had earlier been injured. That the practice violated Occupational Safety and Health Administration regulations and company safety standards did not establish wanton conduct because a high probability of injury was not obvious.
See Anderson v. Bushong, 2013 Iowa App. LEXIS 221 (Feb. 13, 2013).
See generally Larson's Workers' Compensation Law, § 111.03.
OH: Injuries Sustained During Travel From One of Employer's Premises to Another Not Covered When Employee Engaged in Personal Deviation Lasting Several Hours
Under the "ordinary" reading of the "going and coming rule," for an employee having fixed hours and place of work, going to and from work is covered only on the employer's premises. Where the employee has no fixed place of work, but travel between two parts of the employer's premises, injuries sustained during that travel are generally compensable. That an Ohio employee was returning to work at a different employment location than the one where he briefly began the day did not, however, mean the ordinary "going and coming rule" was inoperative, held a state appellate court recently. Where the employee left the employment at one of the employer's premises for several hours, during which he attended to a number of personal errands, including lunch with his father, the fact that he had concluded that personal business and had begun to return to work did not mean the motor vehicle accident in which he was involved arose out of and in the course of the employment. The normal going and coming rule applied to bar compensation.
See Luciano v. NCC Solutions, Inc., 2013 Ohio 497, 2013 Ohio App. LEXIS 425 (Feb. 14, 2013).
See generally Larson's Workers' Compensation Law, § 13.01.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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