Larson's Blogworthy Cases of the Week 9/12/2008

Larson's Blogworthy Cases of the Week 9/12/2008

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.

Brunson v. Lucas, 2008 Ala. Civ. App. LEXIS 569 (September 5, 2008).  Brunson was injured when he was struck by an automobile driven by Lucas, a co-employee, while crossing the street from the parking lot of "the employer" to the employer's plant entrance to begin his shift.  Brunson and his wife filed civil suit against the employer and Lucas, alleging that Lucas had negligently or wantonly injured Brunson.  Brunson also sought and received workers' compensation benefits from the employer.   Lucas moved for a summary judgment, arguing that the Brunsons’ tort claim was barred by the exclusive remedy provisions of the Alabama Workers’ Compensation Act.  The trial court agreed, and the Brunsons appealed.  Noting that the state supreme court had ruled that immunity extended to co-employees of injured employees who are entitled to receive workers' compensation benefits unless the injured employee can prove that the injury was caused by willful conduct on the part of the co-employee, the appellate court observed that while Brunson attempted to shape the issue and argument to a discussion of whether or not he was injured in the course of the employment—he had not yet reported to work and was walking from the parking lot at the time of the accident—the important issue was whether Brunson had received workers’ compensation benefits.  Since he had filed and received benefits, his civil action against the co-employee was barred.   See generally Larson’s Workers’ Compensation Law § 111.03.

Department of Corrections and Rehabilitation v. Workers' Comp. Appeals Bd. (Alexander), 2008 Cal. App. LEXIS 1409 (September 10, 2008).  Alexander was employed through July 26, 2005 as a correctional officer at Solano State Prison.  In September 2006, he sought workers' compensation benefits, alleging injury to his heart, cardiovascular system, and left shoulder. On April 26, 2007, the parties stipulated before a Workers' Compensation Administrative Law Judge, as relevant: (1) Alexander sustained injury to the heart and left shoulder arising out of and in the course of employment. (2) He had received permanent disability compensation since on or around February 20, 2006. (3) Without apportionment, his permanent disability was 78 percent; apportionment, if legally appropriate, would be at the level of 11 percent.  The issue to be litigated was whether Labor § 4663(e) was in effect before January 1, 2007, barring apportionment of that part of Alexander's permanent disability that had accrued as of then.  The WCL found that the statute was to be applied retroactively and refused apportionment of Alexander’s claim.  The WCAB denied reconsideration and the employer appealed.  The appellate court noted that in 2004, as part of a comprehensive reform of workers' compensation law adopted as urgency legislation, the Legislature enacted Senate Bill No. 899 (SB 899), which contained a provision that, on its face, required every permanent disability award to be apportioned to the extent that the disability did not arise out of and in the course of employment. (Lab. Code, § 4663).  The Legislature did not repeal or amend previously enacted provisions which had established a different rule for public safety officers: (1) any specified injury or illness which developed or manifested itself during the officer's service was rebuttably presumed to have arisen out of and in the course of employment; (2) absent controverting evidence, the WCAB had to find in accordance with this presumption; and (3) the injury or illness could not be attributed to any preexisting disease. In 2006, § 4663 was amended by adding subdivision (e), which generally indicates that the apportionment rules do not apply to certain injuries, including those sustained by Alexander as a correctional officer.  The court indicated that according to legislative history, the addition of subdivision (e) was to declare existing law. That law provided that Alexander's injury to his heart should not be apportioned.  The WCAB correctly declined, therefore, to apportion Alexander's heart injury.  See generally Larson’s Workers’ Compensation Law §§ 9.02, 90.03.

Grabowski v. Mangler, 2008 Del. LEXIS 408 (September 9, 2008). Plaintiff-Appellant Grabowski sustained injuries arising from horseplay at his job site. After claiming and receiving workers' compensation benefits, Grabowski brought a third party negligence action against the co-employees who were involved in the horseplay, defendant-appellees Mangler, Smith, and Ziemba ("Appellees").  Mangler, Smith, and Ziemba filed motions for summary judgment, which the trial judge granted. In Grabowski's first appeal, the Supreme Court of Delaware adopted the Larson "course of employment" test as a basis to determine whether a co-employees' conduct constituted horseplay of such a character that it was outside the course and scope of employment and remanded to the trial judge to determine, as a matter of law, whether appellees' actions constituted horseplay outside the course and scope of employment.  On remand, the trial judge applied the four-factor Larson test and found that Appellees' conduct occurred within the course and scope of employment, and granted summary judgment for Appellees.   Grabowski appealed.  The supreme court affirmed, indicating that in sum, the prank in this case was executed quickly without a significant abandonment by Appellees of their duties.  In spite of the employer's rules, horseplay was informally accepted and commonplace in their work environment.  The incident in question, though unfortunate, was consistent with the horseplay typical at the employer.  Summary judgment was proper. See generally Larson’s Workers’ Compensation Law § 23.07.

Merritt v. UPS, 2008 Del. LEXIS 402 (September 4, 2008).  Appellant workers' compensation claimant appealed a judgment entered by the Superior Court of the State of Delaware in and for New Castle County , which affirmed a decision of the Delaware Industrial Accident Board to terminate disability benefits paid by appellee employer.  The state's highest court held that the employer admitted in a letter that the claimant's partial disability under Del. Code Ann. tit. 19, § 2325 was on-going. Although the letter was not made an exhibit, the Board referred to the letter in its decision and the parties were fully aware of its contents. The claimant was not precluded from claiming that the Board erred by failing to give conclusive effect to the employer's admission, even though the claimant did not ask it to do so under Del. Super. Ct. R. Civ. P. 36(b). The employer's admission was the equivalent of a judicial admission, and should have been given conclusive effect. The Board relied on the employer's admission that the claimant had suffered a recurrence of his total disability, but failed to reference the admission when discussing partial disability. The Board did not explain why it relied on an independent medical examiner's opinion that the claimant's partial disability would cease six weeks after the total disability period ended. It was error to disregard the admission that the claimant's partial disability was on-going, and to set a six-week end date to the claimant's entitlement to partial disability benefits.  The judgment was reversed, with instructions to the reviewing court to remand the case to the Board for a new determination regarding the claimant's entitlement to partial disability compensation, and the amount thereof.  See generally Larson’s Workers’ Compensation Law §§ 124.01, 124.08.

Posso v. Acceleration Nat'l Ins. Co., 2008 N.J. Super. LEXIS 190 (September 4, 2008).  Plaintiff worker appealed the judgment of the Superior Court of New Jersey, Law Division, Civil Part, Essex County, which dismissed his claim against defendant, the New Jersey Property-Liability Insurance Guaranty Association, for uninsured motorist (UM) benefits, pursuant to the New Jersey Property-Liability Insurance Guaranty Association Act (Guaranty Act), N.J.S.A. §§ 17:30A-1 to -20.  Plaintiff was rendered a quadriplegic in a work-related automobile accident, which was caused in major part by the negligence of a phantom vehicle. The workers' compensation carrier for plaintiff's employer provided medical care and wage-loss benefits to him. Plaintiff asserted an UM claim against the employer's auto insurer, and the workers' compensation carrier asserted a workers' compensation lien of almost $ 1.3 million. Plaintiff had $ 500,000 in UM coverage with the employer's auto insurer, but it was declared insolvent. As a consequence, plaintiff was limited to seeking recompense from defendant limited at a maximum of $ 300,000. The trial court dismissed plaintiff's claim upon finding that defendant was not obligated to pay because the workers' compensation lien extinguished the statutory maximum. The court found error, concluding that defendant was not entitled to any credit based on the amount paid by the workers' compensation carrier in the case. The court noted it was of no moment that the UM policy limit of plaintiff's insurance was less than the workers' compensation lien because that lien was not a covered claim under the Guaranty Act.  The court reversed the judgment and remanded the case to the trial court for entry of a judgment compelling defendant to pay $ 300,000 to plaintiff.  See generally Larson’s Workers’ Compensation Law § 110.05.

Chin v. Namvar, 2008 Cal. App. LEXIS 1415 (September 11, 2008).  Chin sustained injuries in May 2005, when he fell from a ladder while performing painting services at a shopping center.  Although Chin at one time had been a licensed painting contractor, his license had expired in 2000, and he was not licensed at the time of injury.  Chin and his wife filed a complaint various parties having ownership or management interests in the shopping center contending, in relevant part, that Chin was the defendants’ employee at the time he was injured, and was entitled to wages and workers’ compensation benefits. Chin also contended that as an employee for whom his employer had no workers' compensation coverage, he was entitled to recover for negligence.  Chin claimed that defendants’ assertion that he was an independent contractor, not an employee, was only an attempt to avoid complying with the wage and hour and insurance provisions of the Labor Code.  The trial court entered judgment against the Chins and in favor of the defendants-respondents, finding that Chin was an independent contractor and not an employee. On appeal, the Chins' contended that the trial court erred in ignoring Labor Code § 2750.5, which creates a rebuttable presumption that an unlicensed person who performs work requiring a license is an employee, not an independent contractor.  The appellate court noted that notwithstanding the conclusive presumption established by the second to last paragraph of Labor Code § 2750.5, one who misrepresents himself as a licensed contractor is estopped from asserting that his unlicensed status makes him an employee under the statute.  Here there was no dispute that in 1996, when Chin began doing unrelated work for one of the managing partners of the shopping center, he had a license and presented himself as a licensed contractor.  Subsequent to that time, Chin became unlicensed.  There was also evidence that Chin brought his own ladder and scaffolding to the job site.  The appellate court held, therefore, there was substantial evidence that Chin was in fact engaged in an independently established painting business.  The determination of independent contractor status was an issue of fact and could not be overturned where it was supported by substantial evidence. See generally Larson’s Workers’ Compensation Law § 71.05.