Larson's Blogworthy Cases of the Week 8/1/2008

Larson's Blogworthy Cases of the Week 8/1/2008

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.

Veco Alaska, Inc. v. State, 2008 Alas. LEXIS 110 (July 25, 2008).  A worker was employed at VECO for approximately eleven years in a number of positions. Before beginning his VECO employment, he had sustained a back injury, with an accompanying 22 percent permanent impairment rating, while working for another employer. He reinjured his back at his VECO job while moving some timbers, underwent three surgeries and ultimately was confined to a wheelchair. VECO paid his workers' compensation benefits and petitioned the Second Injury Fund for partial reimbursement. The Fund denied both that the worker had a qualifying preexisting condition and that VECO had established by a written record that it knew the worker had such a preexisting condition. The Workers' Compensation Board found that VECO had not produced written records from which it could reasonably be inferred that it had prior knowledge of the worker's qualifying impairment.  The evidence indicated that at the time the worker was hired by VECO, he completed a medical questionnaire indicating his prior back injury and that he had not been advised to limit his activities.  The state supreme court held that the Board had applied a standard that was too restrictive in evaluating whether VECO satisfied the written record requirement. By requiring VECO to present evidence that showed unequivocally that VECO knew the worker had arthritis rather than simply a permanent impairment, the board imposed a requirement that exceeded what the court had previously held an employer must show to obtain reimbursement from the Second Injury Fund.  Employees may not fully understand their medical conditions or may misconstrue a doctor's advice or opinions.  Here, for example, the worker had denied that he knew he had arthritis before the Second Injury Fund litigation, even though the doctors who treated him testified that his medical records indicated the presence of an arthritic condition. The court was concerned that the standard the Board used here created the wrong incentive for employers: it might discourage employment or retention of any employee who appeared to have an impairment unless the impairment can easily and explicitly be pinned to a specific cause listed in AS 23.30.205(d)(1). The court reversed the Board's decision denying VECO's petition and remanded the case to the Board for further proceedings.  See generally Larson’s Workers’ Compensation Law § 91.02.


Matter of Park v. Lee, 2008 NY Slip Op 6396, 2008 N.Y. App. Div. LEXIS 6244 (July 24, 2008).  Claimant worker appealed a decision by the Workers' Compensation Board (New York) that ruled he was not an employee of purported employer, and denied his claim for workers' compensation benefits; the worker claimed that it was error for a workers' compensation law judge (WCLJ) to close the proof and render  a determination before the employer testified, thereby depriving him of due process. The worker owned and operated a delivery truck that delivered produce for the purported employer. Thereafter, the worker was admitted to the emergency room with back pain and pain and numbness in his legs, which required disc herniation surgery. The court found, inter alia, that although the employer was scheduled to testify, the worker's attorney sought no adjournment once it became clear that the employer's testimony was not going to be heard. The attorney's unparticularized objection came only after the WCLJ had issued his determination. Under the circumstances, the worker waived the issue. The worker's testimony that he owned his delivery truck, paid for its gas and repairs, paid for helpers when necessary, and listed himself as self-employed on his tax returns was substantial evidence supporting the Board's determination, and supported the WCLJ's conclusion that the employer's testimony was unnecessary. Because no direct testimony was received from the employer, the worker was not deprived of the right of cross-examination. Thus, the worker's due process rights were not violated.  See generally Larson’s Workers’ Compensation Law § 62.05.

Matter of Grant v. Niagara Mohawk Power Co., 2008 NY Slip Op 6420, 2008 N.Y. App. Div. LEXIS 6258 (July 24, 2008).  The Workers' Compensation Board ruled, among other things, that appellant lineman voluntarily removed himself from the labor market and denied his claim for workers' compensation benefits. The lineman appealed. The lineman injured his left leg and back, filed a workers' compensation claim, and received a lost time benefits award. After completing therapy, the lineman returned to work without restrictions, but seven months later, elected to have surgery on his right foot, which he had injured in an unrelated accident. The lineman returned to light duty work after the surgery. After the lineman later began receiving disability retirement benefits, he requested a finding that he was permanently partially disabled as a result of the left leg and back injury. The appellate court found that the evidence amply supported the board's determination that the lineman's decision to retire was based on the unrelated right foot injury. Three months after the lineman returned to work after the left leg injury, the board issued a proposed decision which found, inter alia, that there was insufficient evidence that the lineman had a permanent restriction or loss of use as a result of that injury. The lineman never objected to that decision. The board properly found that the medical reports submitted were insufficient to meet the lineman's burden of establishing a continuing disability.  See generally Larson’s Workers’ Compensation Law § 84.04.

Michell v. International Flavors & Fragrances, Inc., 2008 Ohio 3697, 2008 Ohio App. LEXIS 3124 (July 25, 2008). Appellant worker sought review of a judgment from the Hamilton County Court of Common Pleas that granted summary judgment to appellee chemical manufacturers in the worker's product liability action alleging that she had lung problems due to her exposure to the chemicals while she was at work. Her claims sounded in negligent and defective design of the products that contained the chemical. The worker filed her claim with the Bureau of Workers' Compensation, alleging that she suffered from lung problems due to her exposure to a particular chemical while at work. The Bureau disallowed the claim. Further administrative appeals resulted in an affirmance upon finding that the worker did not contract an occupational disease in the course of and arising out of her employment. A further appeal for judicial review was dismissed without prejudice and the action was not re-filed within the one-year period. Thereafter, the worker filed her action against the manufacturers and despite an amendment to her complaint, the trial court granted summary judgment to the manufacturers. On appeal, the court agreed with the summary judgment ruling based on collateral estoppel. The issue was fully and fairly litigated in the workers' compensation proceeding. Collateral estoppel was properly applied, although the parties and issues in the two actions were not identical. See generally Larson’s Workers’ Compensation Law § 127.07.

Maldonado v. American Airlines, 2008 Md. LEXIS 448 (July 25, 2008).  The Workers' Compensation Commission determined that Maldonado sustained a permanent partial disability of 50% under the special “Other Cases” category for industrial loss of the body, as a result of  “injury to the back and psychiatric (serious disability).” Subsequently, a jury, in a judicial review proceeding, reduced the percentage of loss to 35%. Maldonado argued before both the Court of Special Appeals and the Court of Appeals that any party who disputes a Commission decision under "Other cases" industrial loss must present the testimony of a vocational expert during a judicial review proceeding in order to rebut the presumption of correctness of a Commission award. The Court of Special Appeals affirmed the reduction in award. The Court of Appeals also affirmed, holding that the testimony of a vocational expert is not a sine quo non requirement to rebut the presumption of correctness of a Workers' Compensation Commission award under "Other cases" industrial loss and that expert vocational testimony was not required in this case, where the jury was presented with sufficient evidence from which to determine industrial loss. See generally Larson’s Workers’ Compensation Law § 128.05.

Winkle v. Ewellens Professional Cleaning, Inc., 2008 Mo. App. LEXIS 1005 (July 29, 2008).  The employee appealed the a denial of compensation issued by the Labor and Industrial Relations Commission. The Commission's Final Award upheld a decision of an Administrative Law Judge in the Division of Workers' Compensation which denied Van Winkle's claim for workers' compensation benefits. The employee worked for a company that provided cleaning services for a hospital. Her job at that time included cleaning emergency rooms and patient rooms. One of her specific tasks when cleaning a patient room was to strip the beds of their sheets, clean the bed, and then put clean sheets on the bed.  On the day of her injury, she went out to a hallway to get fresh bedding, which she then placed in a chair to the left of her. When she subsequently turned to get the bedding to place it on the bed, she heard a pop in her left hip and shortly thereafter felt a severe burning sensation and sharp pains in her left leg. Within minutes, she was experiencing significant pain in her back and left leg. Prior to that date, she had never experienced any medical issues or problems with her back, hip or left leg.  She reported her injury to her supervisor. The Labor and Industrial Relations Commission denied her claim, finding that she did not sustain a compensable "injury" from an "accident" within the meaning of § 287.020.  The court of appeals reversed, noting that the ALJ had misread the “accident” definition by requiring some "significant force applied to the body."  The court indicated that where (as here) a workplace incident causes an appreciable, harmful effect at the time it occurs, the "suddenly and violently" requirement of § 287.020.2 has been satisfied.  According to the court of appeals, the Commission also erred in concluding that, because the employee was engaging in an ordinary daily activity, she could not have sustained an "injury" within the meaning of § 287.020.3.  The matter was remanded for consistent proceedings. See generally Larson’s Workers’ Compensation Law § 44.01.