Five Recent Cases You Should Know About (8/20/2010)

Five Recent Cases You Should Know About (8/20/2010)

Larson's Spotlight on Retaliatory Discharge, Subrogation, Ex Parte Communication, Volunteer Firefighter, Initial Physical Aggressor. 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.

7th Circuit: Jury Verdict in Retaliatory Discharge Case Overturned by Federal Court

The Seventh Circuit Court of Appeals recently reversed a federal district court's denial of a defendant/airline's post-judgment motions in a case filed by a former airline employee who alleged he had been terminated because he was about to file a workers' compensation claim.  The defendant contended that all the evidence showed that the employee had not been fired because of his workers' compensation claim, but for insubordination; he failed to cooperate during and following a special hearing allowed under the airline's collective bargaining agreement.  The circuit court indicated that the plaintiff admitted that he lied and gave evasive answers during the hearing and that he had not cooperated in completing a required written narrative of the incident causing his injury; the narrative did not speak to the facts surrounding the injury, but only to alleged outrageous post-injury actions of the employer.    

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 U.S. App. LEXIS 16193. 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, § 104.07.

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WA: Insurer Has No Subrogation Right in Injured Worker's Third Party Settlement Related to "Pain and Suffering"

The Supreme Court of Washington, construing the state's workers' compensation subrogation statute, which generally requires the Department of Labor & Industries be reimbursed, to the extent of its workers' compensation outlay, from any recovery the worker may receive from a third party responsible for the injured worker's injures, has held that amounts reasonably designated as "pain and suffering" in a third party settlement or award are not subject to the Department's subrogation rights since, under the workers' compensation act, the Department has paid nothing to the injured worker for such pain and suffering.

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 Wash. LEXIS 677. 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, § 117.05.

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CA: Worker Gets New Qualified Medical Evaluator Based upon QME's Ex Parte Communication With Defense Counsel

A California appellate court has reversed the state's Workers' Compensation Appeals Board and has held that an injured worker is entitled to the appointment of a new panel qualified medical evaluator ("QME") based on the QME's request of a copy of certain records in an ex parte telephone conversation with defense counsel; Cal. Lab. Code § 4062.3 expressly prohibited ex parte communications with a QME, with no exception based on the initiator of the communication or whether the communication was merely for "administrative" matters.

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 Cal. App. LEXIS 1404. 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, § 127.05.

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IA: Volunteer Fireman May Not Be "Summoned" by Circumstances-Only by an Appropriate Official

In an unusual case on a factual basis, the Supreme Court of Iowa recently held that a volunteer firefighter cannot be "called to duty" by circumstances; he or she must be called to duty by a third party authorized by the fire chief before injuries that arise in efforts to rescue another are covered by workers' compensation.  A worker at a farm operation succumbed to poisonous methane fumes when he attempted to rescue another work who had been overcome by the same fumes.  Just prior to rendering aid, the worker yelled to still another co-employee, telling her to call local authorities, including the volunteer fire department of which he was a member.  Both a deputy commissioner and a commissioner determined that the worker's fatal injuries arose in the course and scope of both his farm employment and his work with the volunteer fire department and accordingly apportioned the death benefits between the carriers for the two employers.  The carrier for the farm contended the worker had been "called to duty" by the fire department or, alternatively, that the volunteer fireman could be summoned by the circumstances.  The Supreme Court held that under the statute, the volunteer could only be summoned by an appropriate third party.

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 Iowa Sup. LEXIS 88. 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, § 78.04.

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OH: Injuries Sustained in Beer Fight at Work Held Not Compensable

An Ohio appellate court has held that an argument between two employees as to which of the two should go buy more beer during a lunch break did not involve the workplace in spite of the fact that one of the workers contended he had enjoyed fewer beers because of work he had to complete at the direction of the supervisor; moreover, the claimant was the instigator of the fight and could not, therefore, recover benefits under the state's workers' compensation act. 

The arguments and resulting assaults in those cases arose from work-related activities in the course of employment. The argument between appellant and Merz in the case at bar resulted from a personal dispute over beer. Although the events in the instant appeal occurred on the jobsite, the disagreement did not involve work-related matters.

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 3234. 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, § 8.01.

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

   Offer good through December 2010.