Larson's Blogworthy Cases of the Week 10/17/2008

Larson's Blogworthy Cases of the Week 10/17/2008

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.



10/Hart v. Webster, 2008 Ind. App. LEXIS 2230 (October 15, 2008). Plaintiff employee appealed the dismissal by the Marion Superior Court (Indiana) of his claims for defamation and invasion of privacy against defendants, a director of quality assurance and his employer. The primary issue was whether the trial court erred in determining that it lacked subject matter jurisdiction over Hart's claims.  The employee claimed that the director maliciously communicated to others that the employee had engaged in unethical conduct. He claimed that because of the humiliation that he suffered as a result of an investigation, he became fully disabled and unable to work. As a result, he was terminated. The employee then filed a complaint and an amended complaint claiming defamation and invasion of privacy based on severe emotional and physical distress that resulted in his being fully disabled and unable to work. The employee filed a second amended complaint which omitted prior references to severe emotional and physical distress and that he was fully disabled and unable to work. Also, he again expressly disclaimed recovery under the Workers' Compensation Act (WCA). The appellate court held the trial court properly dismissed the original and amended complaint for lack of subject matter jurisdiction as the substance of the employee's claims fell under the WCA and properly dismissed those claims. However, the second amended complaint made no mention of any physical injury or disability or impairment. Thus, the trial court had subject matter jurisdiction over the second amended complaint.  The trial court properly dismissed the employee's original complaint and his amended complaint for lack of subject matter jurisdiction. However, it erred in dismissing his second amended complaint. The matter was remanded to the trial court for further proceedings on the second amended complaint.  See generally Larson's Workers' Compensation Law §§ 103.01, 104.04.

State ex rel. AT&T, Inc. v. McGraw, 2008 Ohio 5246; 2008 Ohio LEXIS 2783 (October 15, 2008).  Relator employer filed a complaint in mandamus alleging that respondent Ohio Industrial Commission abused its discretion when it failed to terminate respondent employee's permanent total disability (PTD) compensation and to declare an overpayment and fraud. The Court of Appeals for Franklin County ( Ohio ) denied the writ. The employer appealed.  The employer argued that if the employee could interact with customers for free as a hobby, he could do so for pay, and was thus capable of sustained remunerative employment. The state supreme court held that the Commission did not abuse its discretion when it determined that the 78-year-old former employee's activities were consistent with a hobby, not a job, and did not bar permanent total disability compensation. The evidence also supported the appellate court's finding that, regardless of the character of the activities, there was no evidence that the employee could do them on a sustained basis. Although the employee would hang out in the shop of his wife's business (a muzzle-loading gun business), there was no evidence that he did any machine work or gunsmithing. Testimony revealed that the employee, who was renowned for making muzzle loaders, including the parts, by hand, did not know how to make them by machine. Moreover, he was in end-stage glaucoma in both eyes and has been legally blind since 1998. Financially, the business bank account listed the wife as sole proprietor and there were no checks written from the business account to the employee.  The judgment of the appellate court was affirmed.  See generally Larson's Workers' Compensation Law § 84.02.

State ex rel. Pierron v. Indus. Comm'n of Ohio, 2008 Ohio 5245; 2008 Ohio LEXIS 2782 (October 15, 2008).  Appellant employee sought a writ of mandamus in the Court of Appeals for Franklin County ( Ohio ) to order appellee Industrial Commission of Ohio to award him temporary total disability compensation. The writ was denied, and the employee appealed.  The employee was given a light duty job after an industrial injury, and, when he was told that the job was being eliminated and was given a choice between being laid off or retiring, he chose to retire. The supreme court held he was not eligible for temporary total disability compensation. The Industrial Commission's determination that his inaction in the months and years after his separation from employment showed an intent to leave the work force was within its discretion and was supported by a lack of evidence of his search for employment after leaving his employer. While he did not initiate his departure from employment, there was no causal relationship between his industrial injury and his departure or his voluntary decision to no longer be actively employed. Once his separation from employment occurred, he had a choice to seek other employment or work no further. When he chose the latter, he could not credibly claim his lack of income was due to industrial injury.  The judgment of the court of appeals was affirmed. See generally Larson's Workers' Compensation Law § 84.04.

Costa v. Workers' Comp. Appeal Bd., 2008 Pa. Commw. LEXIS 505 (October 14, 2008).  Petitioner worker sought review of an adjudication of respondent Workers' Compensation Appeal Board which affirmed the decision of the Workers' Compensation Judge (WCJ) to award him compensation in an amount net of his unemployment compensation benefits and to deny him attorney's fees. The worker asserted, inter alia, that the WCJ erred in its calculation of his compensation award because his employer did not present evidence on a credit.  The worker was employed as a truck driver and sustained an injury. He began collecting unemployment compensation benefits at the rate of $ 422 per week. A neurosurgeon performed a discectomy on the worker. The worker advised the employer of his post-surgical restrictions and asked to be put back to work. The employer could not accommodate his restrictions. The worker subsequently filed a claim. He also filed a penalty petition asserting that the employer violated the Workers' Compensation Act by failing to issue a notice of workers' compensation denial in a timely manner. The WCJ granted the claim, denied the penalty petition, and subsequently held the employer was entitled to a credit for benefits. The court held that 77 Pa. Stat. Ann. § 71 directed the WCJ to credit the amount of a claimant's unemployment compensation benefits against the amount of the compensation benefits awarded by the WCJ. The record in the claim proceeding contained evidence about the amount of unemployment compensation paid to the worker. The WCJ was required to reduce the worker's award by the amount of his unemployment compensation benefits regardless of whether the employer had re-quested the offset.  The judgment of the Board was affirmed.  See generally Larson's Workers' Compensation Law § 157.02.

Crawford v. Workers' Comp. Appeal Bd.(Centerville Clinics, Inc.), 2008 Pa. Commw. LEXIS 502 (October 10, 2008).  Petitioner, the personal representative of a deceased workers' compensation claimant, sought review of an order from respondent Workers' Compensation Appeal Board which affirmed a workers compensation judge's (WCJ) decision and order declaring the compromise and release agreement (C&R) entered into by the claimant and her employer null and void as a result of the claimant's death.  The claimant died from a non-work related illness one day before the WCJ issued her decision and order approving the C&R. The WCJ therefore concluded that the C&R was a nullity pursuant to a specific provision in the C&R which stated that the C&R would be null and void upon the claimant's death if not approved by a judge. The court rejected petitioner's contention that satisfaction of the requirements of 77 Pa. Stat. Ann. § 1000.5 validated the C&R. The court held that § 1000.5 did not have to be addressed because the provision in the C&R clearly nullified the C&R when the claimant died before the WCJ approved the C&R. The parties specifically made the court's Shaffer decision applicable by citing it in the C&R provision at issue. The court also held that the WCJ did not err by reading the two clauses in the provision independently rather than in conjunction with one another. The plain language of the C&R supported the WCJ's decision.  The court affirmed the Board's order.  See generally Larson's Workers' Compensation Law §§ 89.03, 89.05.

Travis Cent. Appraisal Dist. v. Norman, 2008 Tex. App. LEXIS 7651 (October 10, 2008).  Plaintiff, employee brought a retaliatory discharge action against defendant tax appraisal district in the District Court of Travis County, 200th Judicial District (Texas), alleging a violation of Tex. Lab. Code Ann. §§ 451.001(1),.002 (2006). The district filed a plea to the jurisdiction, which was denied, arguing that the employee failed to exhaust her administrative remedies before filing suit. The district filed an interlocutory appeal.  The employee was hired by the district as a probationary employee. Six months later, she filed a workers' compensation claim; later that day, she received written notice that she had been terminated based on her work performance. The district argued that the employee had not complied with the district's grievance policy, contained in its handbook, and therefore had failed to exhaust her administrative remedies, depriving the trial court of subject-matter jurisdiction. The court rejected the district's claim that simply because the district was a public entity, the employee was required to follow its internal grievance procedures before filing suit under Tex. Lab. Code Ann. §§ 451.001, 451.002 (2006). The court observed that other portions of the workers' compensation code had exhaustion of remedies requirements, so that the legislature could have included one in the retaliatory discharge chapter if it had chosen to do so. Absent some requirement established by applicable law, the employee was not required to first go through the employer's grievance procedure before filing her retaliatory discharge action.  The court affirmed the district court's denial of the district's plea to the jurisdiction based on failure to exhaust administrative remedies.  See generally Larson's Workers' Compensation Law § 104.07.

County Concrete Corp. v. Labor & Indus. Rev. Comm’n, 2008 Wisc. App. LEXIS 817 (October 15, 2008).  In a per curiam decision, the appellate court held that substantial evidence, in the form of medical opinions from a worker’s treating physicians, supported the Commission’s finding that the worker’s work-related activities on a single day constituted an appreciable period of workplace exposure and was a material causative factor in the progression of her preexisting neck condition.  Acknowledging that the worker had a history of neck problems dating back to 1997 and that surgery had been raised as a possibility as early as 1998, the court found that there was sufficient evidence that the worker’s activities in setting up a showroom on one day supplied the necessary work-connection to allow for an award of permanent partial disability on a functional basis.  The appellate court observed that the law did not require some minimum period of employment exposure or work activity as a matter of law before the exposure may become compensable.  Rather, the question was whether the work exposure was a material contributory causative factor in the onset or progression of the disability under the occupational disease formulation or, alternatively, whether the work activity precipitated, accelerated or aggravated beyond normal progression a preexisting degenerative.  The appellate court could not evaluate the weight and credibility of the evidence.  Acknowledging that the employer had offered medical evidence that the worker’s condition was not associated with the one-day’s activities,  the court observed that the Commission had performed its function of weighing the various bits of evidence before it. See generally Larson's Workers' Compensation Law §§ 9.02, 50.03, 50.06.