Larson's Spotlight on Offset, Retirement, Independent Contractor, and Choice of Law/Forum. 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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NE: No Offset Against Workers' Compensation Benefits Allowed for Injured Worker's Receipt of Unemployment Benefits
Extensively citing and quoting from Larson's Workers' Compensation Law, a Nebraska appellate court recently held that the relevant provision of Nebraska Employment Security Law disqualified a person from receiving unemployment benefits while receiving compensation for temporary disability under the Nebraska Workers' Compensation Act, unless the amount of workers' compensation benefits was less than the amount recoverable for unemployment. The ability to offset the amount of unemployment benefits by the amount of workers' compensation benefits paid to an injured employee did not, however, permit the converse. When read together, Neb. Rev. Stat. §§ 48-130 and 48-628 (Reissue 2010) suggested that if an individual qualified for both workers' compensation benefits and unemployment benefits, workers' compensation benefits should be paid and unemployment benefits should cease.
See Hernandez v. JBS, USA, L.L.C., 20 Neb. App. 634, 2013 Neb. App. LEXIS 50 (Mar. 26, 2013) [2013 Neb. App. LEXIS 50 (Mar. 26, 2013)].
See generally Larson's Workers' Compensation Law, § 157.02 [157.02.05].
PA: Acceptance of Pension Allows For Permissive Inference of Retirement-No Inference, However, That Such Retirement Was Voluntary
Affirming an order of the state's Commonwealth Court, the Supreme Court of Pennsylvania recently held that where an employer challenges the entitlement to continuing workers' compensation benefits on grounds that the claimant has removed himself or herself from the general workforce by retiring, the employer has the burden of proving that the claimant has voluntarily left the workforce. No presumption of retirement arises from the fact that a claimant seeks or accepts a pension, much less a disability pension, held the court. Rather, the acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired. Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired--the inference must be considered in the context of the totality of the circumstances. The burden of proof was upon the employer, as the moving party, to show that any withdrawal from the workforce was voluntary.
See City of Pittsburgh v. Workers' Comp. Appeal Bd. (Robinson), 2013 Pa. LEXIS 517 (Mar. 25, 2013) [2013 Pa. LEXIS 517 (Mar. 25, 2013)].
See generally Larson's Workers' Compensation Law, § 84.04 [84.04].
AR: Injured Home Care Worker Was Independent Contractor, Not Employee
An Arkansas appellate court recently affirmed a decision by the state's Industrial Commission that a home health care worker was not an employee, but an independent contractor. Her claim for workers' compensation benefits was, therefore, appropriately denied. Indicating that the issue of employee versus independent contractor status was fact dependent, that the principal factor in determining the issue was whether the purported employer had the right to control not only of the result, but also of the means and manner of the performance, the court indicated that substantial evidence supported the Commission's findings husband's death from complications associated with hepatitis C was work-related. The court also acknowledged that the terms of the contract between the parties, by themselves, could not convert an employee into an independent contractor if the other surrounding facts do not support that conclusion. Here, however, the Commission determined that the facts supported the purported employer's position that the injured worker was acting as an independent contractor, not as an employee.
See Long v. Superior Senior Care, Inc., 2013 Ark. App. 204, 2013 Ark. App. LEXIS 212 (Mar. 27, 2013) [2013 Ark. App. LEXIS 212 (Mar. 27, 2013)].
See generally Larson's Workers' Compensation Law, § 61.03 [61.03].
US: Former Kansas City Chiefs Pro Football Players Must Pursue Workers' Compensation Relief in Missouri, Not California
A federal district court in Missouri recently confirmed an arbitrator's award pursuant to pursuant to § 301 of the Labor Management Relations Act "), 29 U.S.C.S. § 185, et seq., holding that three Kansas City Chief professional football players were required to abide by the National Football League and player's collective bargaining agreement and cease and desist from pursuing their workers' compensation claims in the state of California. The players contended that dominant California public policy did not allow an employee to waive an employee's right to seek workers' compensation benefits before the state's WCAB and that the the choice-of-law and/or choice-of-forum provision in the CBA requiring the players to pursue workers' compensation claims in Missouri effectively operated as a waiver of the right to pursue workers' compensation benefits in California for on-the-job injuries sustained in California, and therefore impinged on California's interest in regulating workers' compensation within its borders. The federal district court indicated that the choice-of-law and/or choice-of-forum provision at issue here did not prevent the players from filing or pursuing workers' compensation claims; it only required such claims be resolved in Missouri under Missouri law. The court held that none of the players had established that enforcement of the arbitrator's award violated an explicit, well-defined, and dominant California public policy by prohibiting them from pursuing workers' compensation benefits in California.
See Kansas City Chiefs Football Club, Inc. v. Allen, 2013 U.S. Dist. LEXIS 46424 (Mar. 30, 2013) [2013 U.S. Dist. LEXIS 46424 (Mar. 30, 2013)].
See generally Larson's Workers' Compensation Law, § 143.07 [143.07].
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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