Five Recent Cases You Should Know About (8/6/2010)

Five Recent Cases You Should Know About (8/6/2010)

Larson's Spotlight on Fraud, Going and Coming Rule, Lung Cancer, Preferred Provider Organizations, and Subrogation. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

OH: Employee's Failure to Disclose Her Activities as Psychic/Tarot Card Reader Was Grounds for Finding of Fraud

An Ohio appellate court has determined that the state's Industrial Commission did not abuse its discretion in making a finding of fraud against an employee that engaged in work activities as a psychic//tarot card reader during the time period in which she received temporary total disability benefits; the disclosures made by the employee regarding her daily activities were inconsistent with an investigative report and the Commission could use its discretion to rely upon the report.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2010 Ohio App. LEXIS 2995. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 39.03.

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AL: Employee's Work Day May Have Already Begun at Time of Auto Accident; Claim Might Not be Barred by Going and Coming Rule

An Alabama appellate court recently reversed a trial court's summary judgment entered in favor of an employer concerning a workers' compensation claim filed by an employee who had spent the night in an employer-provided mobile bunkhouse and who sustained injuries in a motor vehicle accident at approximately 5:30 a.m. on a work day, holding that the employee had shown there was a genuine issue of fact as to whether his work day had already commenced on the day of the accident and that he was not, therefore, traveling on his way to a worksite (but, rather, from one worksite to another); the claim was not necessarily barred by the "going and coming rule." 

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2010 Ala. Civ. App. LEXIS 214. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 13.01.

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DE: Evidence Supports Finding That Employee's Lung Cancer Was Caused by Years of Smoking, Rather Than Asbestos Exposure

The Supreme Court of Delaware recently affirmed a decision by the state's Industrial Accident Board that had determined that an employee had failed to establish that his lung cancer was causally connected to his almost twenty years of work at the Port of Wilmington where he was exposed to asbestos.  The high court noted that there was a conflict between the opinion of the employee's expert, who testified that a combination of cigarette smoking-two packs per day for 40 years-and asbestos exposure caused the employee's lung cancer while the employer's expert opined that the lung cancer was exclusively cased by cigarette smoking.  The IAB's decision was, therefore, supported by the minimum quantum of evidence required.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2010 Del. LEXIS 358. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 52.06.

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LA: Third Circuit Again Strikes Down Preferred Provider Organization Discounts in Connection With Workers' Compensation Cases

Consistent with the position established in its Agilus Health decision (with regard to which the Supreme Court of Louisiana has granted writ), the Court of Appeal of Louisiana, Third Circuit, in a consolidated case, has again ruled that the state's Workers' Compensation Act does not permit preferred provider organization discounts below the fee schedule; La. R.S. § 23:1033 provides that: "No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided."

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2010 La. App. LEXIS 1089. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 94.02.

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NJ: Under "Appropriate" Circumstances Underinsured Motorist Carrier May Have Subrogation Interest in Employee's Intentional Wrong Action Against Employer

In an unpublished decision, a New Jersey appellate court has held that in appropriate circumstances a claim against an employer pursuant to the intentional wrong exception to the exclusive remedy provision of the Workers' Compensation Act can be the subject of a subrogation claim by an underinsured motorist (UIM) carrier and entitle the carrier to a partial set-off for the portion of the intentional wrong settlement that represented compensatory damages (i.e., pain and suffering, loss of enjoyment of life, lost wages, disgurement and permanent disabilities), under the circumstances of the case, the UIM carrier was not so entitled.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2010 N.J. Super. Unpub. LEXIS 1800. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 110.05.

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Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law

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