Larson's Blogworthy Cases of the Week 7/18/08

Larson's Blogworthy Cases of the Week 7/18/08

Each week I'll be blogging about recent, interesting workers' compensation cases.

I invite everyone to share their thoughts about these cases.

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Meyers v. Wildcat Materials, Inc., 2008 Mo. App. LEXIS 927 (July 9, 2008).  The Court of Appeals of Missouri recently affirmed an award of the state's Labor and Industrial Relations Commission (the "Commission") that required an employer to pay an injured employee's past medical expenses in spite of the fact that the employee had not notified the employer that it should supply medical treatment and had given the employer no opportunity to control or designate the care as is generally called for under the Missouri Workers' Compensation Act.  Indicating that the case was one of first impression on the specific issue, the Court of Appeal held that if an employee sought medical treatment for a work-related condition without knowledge at the time of that treatment that the condition was work-related, and if the employer was not prejudiced by such treatment, then reimbursement could be ordered in spite of the fact that the employer did not have the opportunity to select the care-giver and direct the medical care. See generally Larson's Workers' Compensation Law § 94.02.

Mora v. Hollywood Bed & Spring, 2008 Cal. App. LEXIS 1047 (July 14, 2008).  An employee appealed a summary judgment that ruled that he could not maintain a personal injury action against defendants, his former employer and its president, based on the lack of an adequate point of operation guard on a power press machine.  The power press machine that caused the injury had a plastic guard attached to it; however, the guard had been disconnected from the controlling mechanism and was inoperable. The employers presented evidence that the manufacturer had sent them letters and safety materials that referred only to other power presses. The trial court concluded that the employee had failed to establish that the manufacturer had informed the employers that the press was required to have a guard or that the employers specifically authorized the failure to install or removal of a point of operation guard. The court held that the case did not fall within the exception to the workers' compensation exclusivity rule in Lab. Code, § 4558, for failure to install or removal of a point of operation guard. The court construed "specifically authorized," as used in § 4558, subds. (a)(6), (b), to require an affirmative instruction by an employer, which meant an express directive statement, rather than an implied statement or tacit acquiescence. Because the employers did not manufacture the power press, case law allowing liability based on omission where an employer was aware of a risk of serious injury did not apply. See generally Larson's Workers' Compensation Law § 105.06.

Toner v. Monro Muffler & Brake, Inc., 2008 Ohio 3493, 2008 Ohio App. LEXIS 2943 (July 11, 2008).  An employee sought review of a judgment that had sustained a motion for summary judgment filed by the employer and dismissed the employee's employer intentional tort suit against the employer.  The store where the employee worked was robbed. During the robbery, the employee was struck in the face by one of the robbers and sustained injuries. In his complaint, the employee alleged that, since the store had been robbed on two prior occasions, the employer had specific knowledge of escalation of criminal conduct and had a duty to protect its employees from further injury by taking steps to increase security. The court held that the trial court properly granted summary judgment to the employer as the employee had failed to show that the employer knew that injury to the employee was substantially certain to occur. No one was injured in the initial two robberies at the store. While the facts clearly demonstrated that the employee's work situation was dangerous, the employer's knowledge and appreciation of the risk of harm that its employees potentially faced was insufficient to impute knowledge with substantial certainty that any physical harm would befall its employees. See generally Larson's Workers' Compensation Law § 103.04.

Fredricks v. Good Samaritan Hosp., 2008 Ohio 3480, 2008 Ohio App. LEXIS 2947 (July 11, 2008).  A nonparty expert witness sought review of an order that denied his motion to quash a subpoena under Civ. R. 45(C)(3) in an action contesting an employee's workers' compensation benefits claims. The trial court had granted the employee's motion to compel issuance of the subpoena.  The employee's claim that she sustained an injury during the course of her employment at the hospital was granted for workers' compensation benefits, as well as for additional benefits. The hospital sought review and the employee filed her complaint in the trial court and requested judgment in her favor. After the hospital disclosed its medical expert, the employee served him with a subpoena for information regarding his prior expert medical-legal examinations. The hospital responded to the employee's motion to compel, and the expert sought to quash the subpoena under Rule 45(C)(3). The trial court granted the employee's motion to compel, finding that the information sought was relevant as to the expert's bias or prejudice. On appeal, the court found that the order was not appealable under R.C. 2505.02(B)(2) because it did not affect a substantial right, although the issuance of a subpoena was a provisional remedy under § 2505.02(B)(4), R.C. 2317.02 was inapplicable where no privileged communications were sought. The expert had an adequate remedy at law by appeal after final judgment. Any claim of undue expense and burden could be remedied by an expense award under Rule 45(E). See generally Larson's Workers' Compensation Law § 130.02.

Henry v. Lincoln Elec. Holdings, Inc., 2008 Ohio 3451, 2008 Ohio App. LEXIS 2910 (July 10, 2008).  A deceased employee's employer sought review of a judgment that granted a widow the right to participate in the employer's workers' compensation program for death benefits under R.C. 4123.01(C).  The widow filed a workers' compensation claim, alleging that the employee's death was due to lethal cardiac arrhythmia caused by extreme stress at work. The Industrial Commission denied the widow's request to participate in the survivor death benefits, and she sought review. After a jury trial, a verdict was entered in the widow's favor. On further review, the appellate court found no merit to the employer's claim that improper jury instructions were given. It was conceded that the jury was properly charged on the issue of legal causation. As to the employer's contention that an objective standard should have been used in determining whether or not the employee sustained an injury resulting from emotional stress, the court held that the employer failed to timely object as it did not raise the issue to the trial court. Further, the instruction was not so confusing that it constituted plain error. See generally Larson's Workers' Compensation Law §§ 44.05, 56.04, 56.06.