Larson’s Spotlight on Recent Cases: On-Call Surgical Technician’s Claim Not Barred by Going and Coming Rule

Larson’s Spotlight on Recent Cases: On-Call Surgical Technician’s Claim Not Barred by Going and Coming Rule

Larson's Spotlight on Going and Coming, Retaliation, Lyme Disease, and Exclusive Remedy. 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.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

TN: "On Call" Surgical Technician's Claim Not Barred by Going and Coming Rule

Quoting Larson's Workers' Compensation Law, § 13.01, a Special Workers' Compensation Panel of the state Supreme Court recently held that a surgical technician, who worked full-time at a hospital and in addition to her regular hours was periodically required to return to the hospital during the early morning hours for emergency surgery, was not barred by the "going and coming" rule from recovering benefits related to injuries sustained in an automobile accident that occurred as she drove home while still subject to call.  While the court observed that in the instant case, the employer benefited significantly from the "on call" system that had been established, it did not base its decision on that factor alone, but "upon consideration of the "totality of the circumstances:" (1) the technician was compensated for the time she spent on call; (2) the employer imposed significant restrictions that the technician had to follow while on call; (3) the on-call system provided significant benefits to the employer; and (4) the on-call system required additional travel that subjected the technician to increased risk.

See Shannon v. Roane Med. Ctr., 2013 Tenn. LEXIS 302 (Mar. 13, 2013) [2013 Tenn. LEXIS 302 (Mar. 13, 2013)].

See generally Larson's Workers' Compensation Law, § 13.01 [13.01].

AR: State High Court Reiterates: No Individual Cause of Action for Workers' Compensation Retaliation

Answering a question of Arkansas law certified to it by the U.S. District Court for the Eastern District of Arkansas, the state Supreme Court recently indicated that by enacting Ark. Code Ann. § 16-118-107, the Arkansas General Assembly did not intend to revive the individual cause of action for common-law remedies for retaliation under Arkansas workers' compensation law which it expressly annulled at Ark. Code Ann. § 11-9-107.  In 1993, the General Assembly passed Act 796 that included a new provision: § 11-9-107 which, in relevant part, provides for a fine of up to $10,000 against an employer who obstructs or impedes the filing of workers' compensation claims.  The statute also provides that the employer may also be guilty of a Class D felony.  Here the plaintiff filed a civil action under Ark. Code Ann. § 16-118-107-not found in the workers' compensation law-that provides that a "person injured or damaged by reason of conduct of another person that would constitute a felony under Arkansas law may file a civil action to recover damages based on the conduct."  The plaintiff contended the employer's conduct was felonious and that he could, therefore, maintain a civil action.  The high court said to allow the suit would undermine the 1993 amendment to the workers' compensation law.

See Lambert v. LQ Management, L.L.C., 2013 Ark. 114, 2013 Ark. LEXIS 133 (Mar. 14, 2013) [2013 Ark. LEXIS 133 (Mar. 14, 2013)].

See generally Larson's Workers' Compensation Law, § 104.07 [104.07].

NY: Court Affirms Finding That Motor Neuron Disease Was Consequential to Established Claim for Lyme Disease

A New York appellate court recently affirmed a finding by the state's Workers' Compensation Board that had in turn held that a construction worker's claim of total and continuing disability due to motor neuron disease was a compensable consequence of his earlier established claim for Lyme disease.  Following the 2008 Lyme disease diagnosis-the worker was bitten by a tick while working in the woods-the worker's condition continued to deteriorate.  In spite of treatment, the worker experienced progressive muscle weakness until he could no longer work at all.  The appellate court observed that there was disagreement among the medical experts; several neurologists for the employer could not state with certainty that the Lyme disease was the cause of the motor neuron disease.  The court indicated, however, that it was the Board's duty to weigh such evidence and make its determination.  Substantial evidence supported that decision.

See Bailey v. Ciccone, Inc., 2013 N.Y. App. Div. LEXIS 1547 (Mar. 14, 2013) [2013 N.Y. App. Div. LEXIS 1547 (Mar. 14, 2013)].

See generally Larson's Workers' Compensation Law, § 51.02 [51.02].

LA: Exclusivity Defense is Not Available to Volunteer Firefighter Sued in Tort by Fellow Volunteer

The Supreme Court of Louisiana recently held that while La. R.S. 23:1036 provides workers' compensation as the exclusive remedy for a volunteer member of a fire company in claims for personal injury against the "fire company," it does not bar claims for personal injury against fellow volunteer members.  The court observed that since an amendment in 2009, a volunteer firefighter is entitled only to medical benefits and burial expenses, but no other indemnity benefits under the Workers' Compensation Law.  The court was disinclined to hold that in exchange for these minimal benefits, the Legislature also intended for the injured volunteer to give up his or her tort claim against a fellow volunteer.

See Champagne v. American Alternative Ins. Corp., 2013 La. LEXIS 561 (Mar. 19, 2013) [2013 La. LEXIS 561 (Mar. 19, 2013)]

See generally Larson's Workers' Compensation Law, § 111.03 [111.03]

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


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