Five Recent Cases You Should Know About (8/27/2010)

Five Recent Cases You Should Know About (8/27/2010)

Larson's Spotlight on Bystander Exposure, Subpoena in Fraud Case, Exclusive Remedy Rule, Job Demotion, Surveillance Evidence. 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.

NJ: Court Affirms $7 million Verdict for "Bystander Exposure" to Asbestos to Wife Who Washed Husband's Laundry

The Superior Court of New Jersey, Appellate Division, recently affirmed a judgment on a $7 million verdict favoring a spouse who contended she contracted mesothelioma as a result of bystander exposure from washing her husband's asbestos-laden work clothes.  The case was complicated by the fact that subsequent to her long-term exposure to her husband's clothing, she began to work for the defendant herself and was potentially exposed to asbestos in the course of her employment.  The employer argued that her exclusive remedy was within the workers' compensation system.  Quoting Larson's Workers' Compensation Law, Ch. 113, § 113.01, and utilizing the often-criticized dual persona doctrine, the court held that the plaintiff could recover in tort if she could prove that (1) her mesothelioma was caused from exposures while she was not employed by defendant, or (2) her bystander exposure was the substantial cause of her mesothelioma.

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. LEXIS 173. 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, § 113.01.

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ND: State Supreme Court Allows Subpoena of Bank Records to Stand in Fraud Case

The Supreme Court of North Dakota has affirmed a decision of a state district court that denied a workers' compensation claimant's motion to suppress bank records obtained through administrative subpoena duces tecum in a workers' compensation fraud case.  The records had been sought to show that the claimant earned, but did not report, income through a mobile home repair business and in selling scrap metal.  Based on the unreported earnings, the Workforce Safety & Insurance ("WSI") contended it had paid $ 24,132.85 in excess benefits.  Issuance of the subpoena was within the investigatory powers of WSI. 

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.D. LEXIS 159. 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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MN: Widow's Tort Action Against Husband's Employer For Failure to Provide Defibrillators and Other Negligent Acts Fails

A widow's tort action against her deceased husband's employer for alleged negligence based upon the delayed arrival of emergency responders due to erroneous directions provided by the employer's security personnel and due to the lack of defibrillators on the floor where her husband worked is barred by the exclusive remedy provisions of the state's workers' compensation law, held the Court of Appeals of Minnesota recently in an unpublished case.  Moreover, the employer was not estopped from utilizing the exclusivity defense in spite of the fact that it had initially denied a workers' compensation death claim on the basis that the decedent's fatal heart attack did not arise out of or in the course of the employment. 

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 Minn. App. Unpub. LEXIS 852. 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, § 101.02.

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MS: Worker "Demoted" to Lower Paying Job Due to Seniority Rules Did Not Experience Compensable Wage Loss

A worker who sustained a work-related injury in 2000, who returned to work at the same job, earning the same pay, and who was "bumped" to a lower paying position four or five months later by a worker with greater seniority (pursuant to the terms of a collective bargaining agreement) because of layoffs at the employer did not suffer a loss of earning capacity due to her work injury, held the Supreme Court of Mississippi, reversing a decision of the state's Court of Appeals. The high court, citing Larson's Workers' Compensation Law, Ch. 81, § 81.01, indicated that there was no dispute that the worker suffered an on-the-job injury and that she experienced a wage reduction following that injury. The issue, however, was whether substantial evidence was presented that her wage-earning capacity had been diminished as a result of that work-related injury.  The court held that there was none presented. 

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 Miss. LEXIS 426. 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, § 81.01.

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OH: Surveillance Evidence Contradicts Worker's Claim of Lack of Memory and Inability to Communicate Clearly

Where medical evidence offered by an injured worker tended to show that the worker was expressionless, with noticeably slowed speech and a flat affect, and that he had memory problems, and where surveillance evidence offered by the employer tended to show instead that the worker displayed excellent short and long-term memory recall and spoke in a normal tone, it was appropriate for the Commission to order the worker to undergo a new medical examination to determine whether he had any continuing disability, held the Supreme Court of Ohio recently. 

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 LEXIS 1936. 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, § 127.10.

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

   Offer good through December 2010.