Larson's Spotlight on Idiopathic Fall, Late Filing, Filing of Claim, and Job Search. 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 lexis.com.
OR: Idiopathic Fall From Standing Position to Brick Floor Was Not Compensable
Citing Larson's Workers' Compensation Law, an Oregon appellate court recently held that a cook/cashier's fall from a standing position onto the brick floor of her workplace did not arise out of her employment where the cause of the fall was idiopathic in nature. Testimony by a medical expert that had the employee fallen to a carpeted floor her injuries would have been less severe was not relevant to the issue of compensability, indicated the court. The court reiterated the important distinction between falls that are "idiopathic" in nature and those that arise "from an unknown cause." In the case of the former, the associated injuries could be said to arise out of the employment only where the consequences of blacking out were made markedly more dangerous by the employment (falling from a ladder or other raised position). Here the claimant pointed to two employment-related factors: the hardness of the floor and the height of her fall due to the employer's requirement that she stand while working. The court held that, as a matter of law, those two employment-related factors did not greatly increase the danger or seriousness of injury.
See Hamilton v. SAIF Corp., 2013 Ore. App. LEXIS 447 (Apr. 17, 2013) [2013 Ore. App. LEXIS 447 (Apr. 17, 2013)].
See generally Larson's Workers' Compensation Law, § 7.04 [7.04].
NM: No Problem for Late Filing Where Employer Told Widow It Would Handle "the Paperwork" Regarding Claim and Failed to Do So
The Supreme Court of New Mexico recently held that a death benefits claim filed by the widow of an off-duty police officer, who drowned while rescuing a twelve-year-old boy from the Rio Grande, could proceed in spite of the fact that the claim was filed after the one-year period prescribed in NMSA 1978, § 52-1-31(B), where it also appeared that the widow's failure to file was based, at least in part, on representations by the employer's officials that the necessary "paperwork" would be handled by the employer. For additional discussion, see http://www.workcompwriter.com/new-mexico-late-filing-of-death-benefits-claim-may-be-excused-where-delay-was-due-in-part-to-actions-of-employer/.
See Schultz v. Pojoaque Tribal Police Dep't, 2013 N.M. LEXIS 113 (Apr. 11, 2013) [2013 N.M. LEXIS 113 (Apr. 11, 2013)].
See generally Larson's Workers' Compensation Law, § 126.09 [126.09].
TN: Notice to Employer Delivered One Day Late Proves Not to Be Fatal to Claim
A Special Workers' Compensation Panel of the Supreme Court of Tennessee recently affirmed a trial court's finding that an employee's workers' compensation recovery was not barred her failure to file her claim within the thirty-day period prescribed by Tenn. Code Ann. § 50-6-201-she filed it one day late-since she presented a reasonable excuse: the employee tried to comply with the notice requirement well before the 30-day prescription period ended, and the employer demonstrated no prejudice. The employee had worked for many years as a hair stylist. She sought medical treatment for neck and shoulder issues and was eventually told by a physician that her condition might be work-related. She immediately sought legal counsel, but one week later, the attorney declined to represent her. She then sought and hired other counsel, who prepared a letter and had the employee hand-deliver notice of her work-related injury that same day-the 31st day after the physician told her the nature of her condition. The court concluded that these circumstances showed that she had sought to comply with the notice requirement well before it had expired. No prejudice was shown by the employer; her claim was appropriately allowed to move forward.
See Ingram v. Heads Up Hair Cutting Ctr., 2013 Tenn. LEXIS 338 (Apr. 10, 2013) [2013 Tenn. LEXIS 338 (Apr. 10, 2013)].
See generally Larson's Workers' Compensation Law, § 126.01 [126.01].
DE: Board's Denial of Lost Wage Benefits Appropriate Where Claimant's Response to Discovery Request Regarding Job Search Was Limited to Handwritten List of Businesses Delivered 48 Hours Before Hearing
A Superior Court of Delaware recently affirmed a finding by the state's Industrial Accident Board that excluded an employee's testimony regarding retraining and job search efforts where her only response to repeated discovery requests regarding her job search efforts consisted of delivery of a handwritten list of businesses, without dates, names or contact information of any kind. The employer contended the claimant should not be allowed to testify as to her efforts when she had not allowed it any opportunity to determine the validity of her alleged job searching activity. The Board agreed, finding that the employee had voluntarily removed herself from the workforce, and therefore had no lost wages to replace. The Superior Court found that it was within the discretion of the Board to exclude the employee's testimony and that there was no evidence that the Board had abused its discretion.
See Martin v. Delaware Home & Hosp., [2013 Del. Super. LEXIS 124 (Apr. 8, 2013) [2013 Del. Super. LEXIS 124 (Apr. 8, 2013)].
See generally Larson's Workers' Compensation Law, § 84.04 [84.04].
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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