Five Recent Cases You Should Know About (9/24/2010)

Five Recent Cases You Should Know About (9/24/2010)

Larson's Spotlight on Exclusive Remedy, Privileged Communication, Mileage Costs, Fraud, Hernia as Consequential Injury. 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.

AR: President/Member of Board of Directors May be Considered the Employer Entitled to Immunity from Third Party Action

Under the exclusive remedy provision of the Arkansas workers' compensation law, a person who served as president, a member of the corporate board of directors, and a major stockholder of the employer corporation could also be considered "the employer" and a wrongful death action filed by the personal representative of the co-employee against the corporate president was barred, held the Supreme Court of Arkansas recently.  The president of the firm also was a licensed pilot and the co-employee was killed (and the president severely injured) in a crash of the plan as the two returned from a business trip.

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 Ark. LEXIS 423. 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, § 111.02.

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FL: "Intake" Documents Provided to Claimant's Attorney at Time Attorney is Retained Are Privileged Communications

"Intake" documents provided by a workers' compensation claimant to his or her attorney at the time the attorney is retained are privileged communications and production of them may not be compelled by a Judge of Compensation Claims, held a Florida appellate court recently.  Among the multiple reasons for quashing the JCC's order, the appellate court indicated that allowing discovery of the attorney's intake documents would not only have intruded into work product, but would have allowed the adversary to function "on the wits and labor" of an opponent.  Such an interpretation was antithetical to the purposes underlying the attorney-client privilege and would additionally have imposed a chilling effect on an attorney's efforts to fully explore and memorialize the facts underlying his client's cause.

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 Fla. App. LEXIS 13720. 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, § 127.11.

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OH: Lawyer's Mileage Charges to Attend Oral Arguments Are Not Costs That Can Be Assessed By Court

An Ohio appellate court recently held that it was unreasonable for a court of county pleas to have allowed an employee to be reimbursed for her attorney's mileage to and from the courthouse for purposes of attending oral arguments for an appeal regarding the employee's workers' compensation claim; the expense was not a cost directly related to the appeal, but rather an everyday cost of doing business.

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 3628. 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, § 134.03.

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CA: Videotapes of Watersliding and Jet-skiing Support Finding of Workers' Comp Fraud

In an unpublished decision, a California appellate court recently affirmed the conviction of a workers' compensation claimant on 10 of 11 counts of fraud; 130 hours of surveillance and some 16 hours of videotape over a two-year period showed the claimant engaging in a host of activities, including using a 40-foot waterslide at an amusement park, carrying large plastic storage bins a quarter-mile to her car, and doing 180-degree and 360-degree turns while jet-skiing on Folsom Lake.  Such activities were inconsistent with her claims of pain and disability, indicated several medical experts.

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. Unpub. LEXIS 7448. 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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WY: Hernia May Be Compensable as a "Second" or Consequential Injury

The Wyoming hernia statute [§ 27-14-603(c)(iii)], similar to hernia statutes in a host of other states, requires-among other things-that the hernia be sustained "in the course of the employment."   In the instant case, the worker suffered an industrial injury to his back and eventually was fitted with a spinal cord stimulator to help treat his back pain.  He sustained a hernia when the stimulator "went off" without warning and the claimant jumped out of bed and fell to the floor.  The Workers' Safety and Compensation Division argued that under the Wyoming statute, a hernia could not be a "second" or consequential injury since it did not occur within the workplace.  The Supreme Court of Wyoming disagreed, citing Larson's Workers' Compensation Law, Ch. 10, § 10.10, holding that to be compensable a hernia need not be the original injury, nor need it have occurred within the actual workplace; it is sufficient for the claimant to show that the hernia was causally related to the employee's original work injury, assuming all of the other elements of the statute are met.

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 Wyo. LEXIS 136. 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, § 10.01.

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

   Offer good through December 2010.