Larson's Blogworthy Cases of the Week 7/25/2008

Larson's Blogworthy Cases of the Week 7/25/2008

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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© Copyrighted 2008 by Matthew Bender & Co., Inc., part of the LexisNexis Group. All rights reserved.

Vredenburg v. Sedgwick CMS, 124 Nev. Adv. Op. No. 53 ( Nev. July 24, 2008).  A bartender slipped on a flight of stairs and sustained a serious back injury.  He underwent surgery, but continued to have considerable pain and discomfort.  The pain was so bad that the bartender elected to have a morphine infusion pump surgically implanted in his spine and underwent a round of epidural steroid injections.  One month after his doctor told him he would never be able to return to work, the bartender killed himself.  Before ending his own life, he composed several suicide notes expressing his need to be at peace, and he called a longtime friend, telling him that “he could no longer take the pain and all of his pain medications.”  According to the friend, the bartender had become dependent on his pain medication, which tended to increase his mobility but “made [him] think funny.”  The issue before the appellate court was whether NRS 616C.230(1), Nevada ’s willful self-injury exclusion, precluded the bartender’s surviving family members from recovering benefits.  Noting that the court had not earlier addressed the scope of the exclusion, the court concluded that suicides are not willful for purposes of NRS 616C.230(1) if a sufficient chain of causation could be established.  Under this construct, a claimant must demonstrate that (1) the employee suffered an industrial injury, (2) the industrial injury caused some psychological condition severe enough to override the employee’s rational judgment, and (3) the psychological condition caused the employee to commit suicide.  The matter was remanded for consistent subsequent proceedings. See generally Larson's Workers' Compensation Law § 38.03.

Los Angeles County Prof. Peace Officers' Assn v. County of Los Angeles, 2008 Cal. App. LEXIS 1136 (July 22, 2008).  A peace officer who has accumulated more than 320 hours of vacation time may choose to defer the excess hours to the following year and then to "cash out" the hours if they are not used.  If the "cash out" occurs in a pay period that is used to measure the officer's compensation for retirement purposes, the result is to increase the officer's retirement benefits.  The county provision calls for different treatment, however, for officers on leave under Labor Code § 4850 (work-related injuries, generally).  In such situations, the excess vacation time is not treated as compensation for purposes of computing the officer's retirement benefits.  The Fifth Division of the Second Appellate District Court of Appeals affirmed a finding by a Superior Court judge that treating the injured officers differently was a violation of their equal protection rights. See generally Larson's Workers' Compensation Law § 93.01.




Barnard v. Liberty Northwest Ins. Corp., 2008 MT 254, 2008 Mont. LEXIS 397 (July 22, 2008). The Supreme Court of Montana, interpreted § 39-71-741(1), MCA, which refers to a $20,000 limitation for lump sum conversions.  The court concluded that when the statute is read in its entirety, it limits lump sum conversions to $ 20,000 only if the requested conversion to a lump sum constitutes a part of the permanent total disability benefit. Section 39-71-741(1)(c), MCA, does not limit to $ 20,000 a lump sum payment of the whole of a permanent total disability benefit.  Moreover, the Workers' Compensation Court is given broad latitude in determining if a lump sum conversion is in the best interests of the claimant.  The state supreme court would not second-guess the WCC's findings. See generally Larson's Workers' Compensation Law § 132.07.

ArvinMeritor, Inc. v. Johnson, 2008 Ala. Civ. App. LEXIS 450 (July 18, 2008).  Johnson and hundreds of other employees at ArvinMeritor ("Arvin") sued Arvin and various other named defendants, alleged that they had each been employed by Arvin and that, as a result of that employment, they had sustained injury by way of exposure to toxic and dangerous chemicals. The plaintiffs asserted claims based on workers' compensation, co-employee liability, misrepresentation, suppression, and deceit.   Subsequently, Johnson moved for an expedited trial, alleging that his condition "had deteriorated to a grave and alarming degree." Following a bench trial, the circuit court entered a judgment finding that Johnson was permanently and totally disabled as a result of a compensable occupational disease and awarded benefits accordingly.   On appeal, Arvin contended in relevant part that the trial court's decision was based upon improperly included expert testimony. Because Johnson's expert failed to provide any evidence concerning the level of exposure that Johnson or any other employee at the plant experienced with respect to any substance, Arvin argued that Andrews's testimony failed to satisfy the test announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), for the admissibility of scientific evidence. Under the Frye standard, "a person who offers an opinion as a scientific expert must prove that he relied on scientific principles, methods, or procedures that have gained general acceptance in the field in which the expert is testifying."  The appellate court agreed with Arvin.  Johnson's expert was so vague and incomprehensible that it could not be substantial evidence to support Johnson's prima facie case. See generally Larson's Workers' Compensation Law § 128.02.

Gallagher v. Frohman, 2008 Ohio 3582, 2008 Ohio App. LEXIS 3024 (July 18, 2008).  An employee and her husband sought review of a judgment that granted summary judgment to the employer in an action that alleged that the employee was terminated from employment in retaliation for her filing of a workers' compensation claim pursuant to R.C. 4123.90.  The employee was hired to do administrative work in the employer's office. She fell on a patch of ice in a parking lot and broke her kneecap.  She sought workers' compensation claims. When the employee underwent surgery, she failed to indicate how long she would be out of work. The employee failed to contact the employer for six weeks in order to let him know if and when she planned to return to work. The employer learned that the employee filled out an application for temporary total disability compensation in which she indicated a return date to work that had already passed. When she returned a week later, the employer fired her based on abandonment of her job. The appellate court affirmed, holding that the employee failed to show that the employer's stated reason for firing the employee was a pretext under § 4123.90. Rather, the employer had articulated a legitimate, non-retaliatory reason for firing her based on her abandonment of her position and her failure to communicate with him regarding her return. See generally Larson's Workers' Compensation Law § 104.07.

Barry v. A.E. Steel Erectors, Inc., 2008 Ohio 3676, 2008 Ohio App. LEXIS 3105 (July 24, 2008). The Eighth Appellate District of the Court of Appeals of Ohio joined the Seventh Appellate District in finding that the Ohio intentional tort statute, R.C. 2745.01, is unconstitutional.  Agreeing with the Seventh District's opinion in Kiminski v. Metal & Wire Prods. Co., 175 Ohio App. 3d 227, 2008 Ohio 1521, 886 N.E.2d 262 (March 18, 2008), the court held that under the Blankenship and Brady doctrines, the state's legislature cannot (consistent with the Ohio constitution) "enact legislation governing intentional torts that occur within the employment relationship, because such intentional tortuous conduct will always take place outside that relationship" [emphasis that of the court].  While the phraseology in the current statute was slightly different than in earlier statutes, which themselves had been declared unconstitutional, the outcome of the statute was precisely the same. See generally Larson's Workers' Compensation Law § 103.04.