Larson's Spotlight on AOE/COE, Idiopathic Fall, Unwitnessed Death, and Intentional Tort. 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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NC: Court Affirms Commission's Findings, Saying Claimant Cannot "Swap Horses Between Courts"
Using a colorful metaphor penned in an earlier Appeals' Court opinion, that "law does not permit parties to swap horses between courts in order to get a better mount on appeal" [quoting Floyd v. Exec. Pers. Grp., 194 N.C. App. 322, 329, 669 S.E.2d 822, 828 (2008)], a North Carolina appellate court recently affirmed a finding by the state's Industrial Commission that found an employee's injuries did not arise out of and in the course of the employment. The employee, who worked in the employer's kitchen area, contended originally that she sustained a shoulder injury as she attempted to climb onto a loading dock on her employer's premises. A supervisor countered that on the day of the injury, the employee said she hurt her shoulder when she fell in a parking lot more than 100 yards from the work premises. The Commission found the employee's testimony not to be credible but indicated it believed the account of the supervisor. Accordingly, benefits were denied. On appeal, the employee contended that if the fall had occurred in the parking lot, it would still have been compensable. The appellate court said the employee could not change her position.
See Anderson v. Sodexo, 2013 N.C. App. LEXIS 512 (May 21, 2013) [2013 N.C. App. LEXIS 512 (May 21, 2013)].
See generally Larson's Workers' Compensation Law, § 124.08 [124.08].
IA: Injuries Sustained in Idiopathic Fall Found Compensable
Reversing a decision by a state trial court that had, in turn, reversed an award of workers' compensation benefits in favor of a seventy-nine-year-old part-time janitor who had suffered an idiopathic fall at his place of employment, an Iowa appellate court, quoting Larson's Workers' Compensation Law, recently held that the janitor's fall, while on a coffee break with his supervisor, arose out of and in the course of the employment since there was "some employment contribution to the risk" under the particular facts of the case. The court indicated that the evidence showed the office was cramped and the corner of the supervisor's desk was pointed, adding to the injuries sustained in the fall.
See AARP v. Whitacre, 2013 Iowa App. LEXIS 518 (May 15, 2013) [2013 Iowa App. LEXIS 518 (May 15, 2013)].
See generally Larson's Workers' Compensation Law, §§ 7.04, 9.01 [7.04, 9.01].
NY: Employer Successfully Rebuts Presumption of Compensability for Unwitnessed Death
Repeating the basic rule in New York (and a number of other states), that a presumption of compensability exists when an unwitnessed or unexplained death occurs during the course of the decedent's employment, but that presumption may be rebutted by substantial evidence to the contrary, a New York appellate court recently affirmed a decision by the state's Workers' Compensation Board that an employee's death was not causally related to his employment. Observing that the decedent went alone to a locker room where, approximately 20 minutes later, he was found unconscious and that he later died, the court also observed that the death certificate, which was issued after an external examination of decedent's body and an interview with his supervisor, determined the cause of death to be arteriosclerotic cardiovascular disease. According to a medical expert retained by the employer, that condition was typically caused by factors such as hypertension, elevated cholesterol levels and tobacco use, and it was not related to decedent's work activity. The expert further testified that he had personally examined decedent in connection with an earlier workers' compensation claim and found him to be hypertensive, and the record reflected that decedent failed to obtain treatment for that condition.
See Fatima v. MTA Bridges and Tunnels, 2013 N.Y. App. Div. LEXIS 3464 (May 16, 2013) [2013 N.Y. App. Div. LEXIS 3464 (May 16, 2013)].
See generally Larson's Workers' Compensation Law, § 7.04 [7.04].
LA: Failure to Maintain Bus Drivers' Seats Did Not Rise to Level of Intentional Tort; Drivers Exclusive Remedy Was Workers' Comp Claim
Failure to follow up on the employer's buses' maintenance and repairs did not rise to the level of an intentional tort, satisfying the intentional act exception to the exclusivity of the Workers' Compensation Act, held a Louisiana appellate court recently. While the plaintiffs--two bus drivers--had complained for years that drivers' seats were poorly maintained and while it did appear that the drivers had sustained back and neck injuries after years of bumpy driving, the appellate court agreed that the plaintiffs had failed to state an intentional tort claim against the employer.
See Guillory v. City of Lake Charles, 2013 La. App. LEXIS 898 (May 8, 2013) [2013 La. App. LEXIS 898 (May 8, 2013)].
See generally Larson's Workers' Compensation Law, § 103.04 [103.04].
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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