Larson's Blogworthy Cases of the Week 9/26/2008

Larson's Blogworthy Cases of the Week 9/26/2008

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.

Maxwell v. AIC Domestic Claims, Inc., 2008 Mass. App. LEXIS 971 (September 23, 2008).  Defendants appealed from the denial of their special motion to dismiss made pursuant to G. L. c. 231, § 59H, the so-called anti-SLAPP statute [The acronym SLAPP stands for 'strategic litigation against public participation. The statute was enacted in order to protect ordinary citizens from meritless litigation brought by large private interests for the purpose of tamping or threatening citizens' rights to petition their government. According to the court, in this case the statute was instead invoked by the defendant workers' compensation insurer and one of its employees, claiming that their petitioning rights have been threatened by the plaintiff, a now-homeless, injured employee to whom the insurer denied workers' compensation benefits and against whom the insurer later groundlessly urged insurance fraud charges.]. On October 8, 2000, while working at the Bay State Paper Company ( Bay State ), the plaintiff, Maxwell, injured his shoulder, neck, and back by picking up a 100-pound drain grate. He promptly reported the injury to Bay State and sought medical treatment for the injury. X-rays and magnetic resonance imaging showed that he had a torn left rotator cuff.  According to the court, AIG initially denied the claim based upon receipt of inadequate medical information.  That was later remedied, but the claim was still denied. At the same time, being without a job or benefits, Maxwell sought refuge in various homeless shelters, including the one at the Boston branch of the YMCA.  As a condition of residence at the YMCA shelter, Maxwell was required to participate in a job-training program conducted by Community Work Services.  AIG hired a private investigator, who looked into Maxwell’s driving records, inquired as to any criminal convictions in Maxwell’s record, and who performed surveillance regarding Maxwell’s activities.  The investigator observed Maxwell performing some work at one site, had Maxwell complete a questionnaire in which Maxwell indicated he was not employed, turned what the court called an incomplete record over to a prosecutor, who charged Maxwell with workers’ compensation fraud.  Had sufficient inquiry been made, it would have been clear that Maxwell was indeed not employed by the shelter, was participating in a mandatory program, and earned no wages at all from the so-called “work.”  During this time Maxwell became mentally unstable, attempted suicide and, according to the court, even pled guilty to the criminal charges without an explanation.  When the facts came to light, however, the prosecutor dismissed the criminal charges, the workers’ compensation claim was resolved in Maxwell’s favor, and Maxwell filed the instant action against AIG and other defendants asserting claims for malicious prosecution and intentional infliction of emotional distress.  Based upon the foregoing, the appellate court held the denial of their special motion was entirely appropriate.  See generally Larson’s Workers’ Compensation Law § 104.05.  


McLin v. LeBouef, 2008 0378 (La.App. 1 Cir. 09/19/08); 2008 La. App. LEXIS 1200 (September 19, 2008).  Appellant employer sought review of a decision of the Office of Workers' Compensation (OWC), District 09, Parish of Terrebonne (Louisiana), awarding appellee employee temporary total disability benefits and increasing the minimum weekly benefit amount of $ 121 to $ 181.50 pursuant to La. Rev. Stat. Ann. § 23:1171.2. Additionally, the employee was awarded penalties, attorney's fees, costs, and interest.  The employee, a convicted felon, testified that he fell from a roof while nailing shingles, fracturing his wrist. He called the employer and asked for gas money to go to the hospital. He testified that the employer brought him the money but told him not to tell the hospital that he was injured on the job. He told the hospital that he fell from a tree, but eventually told the doctor that he had fallen from a roof. The employee's brother and another witness, both convicted felons, corroborated his story. The employer testified that he did not employ the employee, did not give him gas money for the hospital, and did not tell him to lie at the hospital. Other employees testified that the employee was not present at the job site. The court held that the OWC judge was not manifestly wrong in deciding in favor of the employee. There was evidence that the employee's brother was paid the next week, supporting his testimony that he was at the job site and saw his brother fall. The employer had a motive for lying: that he did not have worker's compensation coverage in violation of La. Rev. Stat. Ann. § 23:1168.  The court affirmed the judgment of the OWC court, awarded the employee $ 500 in additional attorney's fees, and assessed costs of the appeal against the employer.  See generally Larson’s Workers’ Compensation Law § 130.03.

Mortensen v. Intercont'l Chem. Corp., 2008 Ohio 4723; 2008 Ohio App. LEXIS 3975 (September 19, 2008).  Appellant/cross-appellee employee sued appellee/cross-appellant employer in the Hamilton County Court of Common Pleas ( Ohio ) for retaliatory discharge under R.C. 4123.90 and common-law wrongful discharge in violation of public policy. The trial court reduced the jury's award on the common-law claim, conditionally granted the employer a new trial, and entered judgment for the employer on the statutory claim. Both parties appealed.  The employer said it was error to submit the employee's common-law claim to a jury. The appellate court agreed because a decision of the Ohio Supreme Court made R.C. 4123.90 the employee's exclusive remedy, and it was proper to apply this decision retroactively to the employee, as he had no vested right in the judgment on the jury's verdict until he exhausted his direct appeal. His exclusive remedy was his statutory retaliatory-discharge claim under R.C. 4123.90, and he could not maintain a common-law wrongful-discharge claim. It was not error for the trial court to grant judgment in the employer's favor on the employee's statutory claim because the trial court found (1) the employee failed to establish a prima facie case as he did not prove he pursued a workers' compensation claim until after he was fired, since a contrary witness was not credible and the employee's letter to the employer did not show he was pursuing a workers' compensation claim, and (2) the employer presented a valid, nonretaliatory reason for the firing based on the employee's ultimatum asking for back pay and successive raises.  Judgment for the employee on his common-law claim was reversed and final judgment on that claim was entered in the employer's favor. The trial court's judgment in favor of the employer on the employee's statutory claim was affirmed. See generally Larson’s Workers’ Compensation Law § 104.07.

King v. Jewish Home, 2008 Ohio 4724; 2008 Ohio App. LEXIS 3978 (September 19, 2008).  Appellant employee sought review of a judgment from the Hamilton County Court of Common Pleas (Ohio), which granted summary judgment to appellee employer in the employee's action, alleging wrongful discharge based on retaliation for filing a claim with the Equal Employment Opportunity Commission (EEOC) in violation of R.C. 4112.02, for filing a workers' compensation claim in violation of R.C. 4123.90, and in violation of public policy.  The employee, who was African-American, worked as a nursing assistant. After a work-related injury, her doctor informed the employer that the employee should be placed on light-duty work. However, the employee alleged that the employer assigned her to regular-duty work, and that she was denied light-duty work based on her race. The employee filed a workers' compensation claim as well as a claim with the EEOC. In a later examination of the employee in the course of the workers' compensation proceeding, it was determined that she had failed to disclose an intervening non-work-related injury. The employer fired her for dishonesty, and she filed suit, which resulted in a grant of summary judgment for the employer. On appeal, the court found that the employee did not provide sufficient evidence to show that the employer's proffered reason for firing her was pretextual. As the employer had a medical report written by a neutral third party indicating that the employee had been dishonest about a work-related matter, and there was a policy of discharging employees for dishonesty, the summary judgment ruling was proper.  The court affirmed the judgment of the trial court. See generally Larson’s Workers’ Compensation Law § 104.07.

Dawson v. Clerk of the Circuit Court, 2008 Fla. App. LEXIS 14562 (September 23, 2008).  In relevant part, Claimant challenged the Judge of Compensation Claims' (JCC) denial of her request for a one-time change of physician. On March 5, 2004, Claimant suffered compensable injuries to her right wrist and knee. For her knee injury, Claimant treated with Dr. Raterman until April 2007, at which time the doctor opined the compensable injury was no longer the major contributing cause of Claimant's need for treatment. Dr. Raterman attributed 51% of the need for treatment to degeneration, and 49% to the injury. Claimant subsequently filed a petition for benefits seeking a one-time change of orthopedic physician. Appellee/Employer-Carrier (E/C) denied this request. The JCC found that because Claimant presented no evidence to rebut Dr. Raterman's opinion as to the major contributing cause of her need for treatment, she was not entitled to the one-time change of physician provided in section 440.13(2)(f), Florida Statutes. The JCC also found that this provision does not allow for a one-time change of physician for the sole purpose of establishing a causal connection between a compensable injury and the continued need for treatment. The JCC concluded that, in such circumstances, the proper procedure is to obtain an independent medical examination pursuant to section 440.13(5), Florida Statutes. Looking to the plain language of the state, the appellate court disagreed with the JCC’s decision and held that that this one-time change of physicians was mandatory, regardless of the e/c's position as to either the change of physician or the new physician's treatment.  See generally Larson’s Workers’ Compensation Law § 94.02.

State ex rel. Upton v. Industrial Comm’n, 2008 Ohio 4758; 2008 Ohio LEXIS 2554 (September 24, 2008).  Upton was a truck driver for appellant, Crown Battery. Between March 5, 2003, and September 26, 2005, Upton was involved in five motor-vehicle accidents while operating a Crown Battery vehicle. The fifth accident seriously damaged the truck, destroyed the cargo, and resulted in a hazardous-waste spill. Upton was cited for that accident, which also resulted in his injury.  Crown Battery and law enforcement officers concluded that the cause of the fifth accident was Upton ’s operator error.  Upton was then fired. Upton filed a workers' compensation claim for the injuries he sustained in the accident, and his claim was allowed. His accompanying request for temporary total disability compensation was more contentious. A district hearing officer for the Industrial Commission of Ohio awarded temporary total disability compensation, but a staff hearing officer reversed. In a lengthy order, the latter concluded that Upton 's firing constituted a voluntary abandonment of the former position of employment that precluded temporary total disability compensation. The Court of Appeals for Franklin County held that the commission had abused its discretion in finding that Upton 's firing had been a voluntary abandonment of the former position of employment. Compensation was accordingly approved.  Crown Battery appealed. The Supreme Court of Ohio noted that the court of appeals decision in the instant case had been issued before State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007 Ohio 4916, 874 N.E.2d 1162 ("Gross II"). Gross II held that if a claimant is injured by the same misconduct that led to his/her termination, temporary total disability compensation eligibility is not compromised.  The Supreme Court indicated that Gross II controlled and rendered the court of appeals reasoning moot. Compensation was therefore payable.  See generally Larson’s Workers’ Compensation Law § 34.01.