Five Recent Cases You Should Know About (2/25/2011)

Five Recent Cases You Should Know About (2/25/2011)

Larson's Spotlight on Permanent Disability Cap, Average Weekly Wage and Missed Work, Civil Action Against Insurance Carrier, Truck Driver and Farming, Average Weekly Wage and Tips. 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.

TN: Post-Bailout General Motors is Different Entity from "Old" GM; Smaller Cap on Permanent Disability Benefits for Workers Returning to Pre-Injury Employer Does Not Apply

Construing a special statute "capping" permanent disability awards [Tenn. Code Ann. § 50-6-241], the Tennessee Supreme Court recently held that the "new" General Motors that emerged from bankruptcy by means of the government-assisted "bailout" was not the same company as the "old" General Motors Corporation.  Accordingly, the injured worker's permanent disability benefits were not subject to the one and one half times cap that applies in cases in which an injured employee, who is eligible to receive permanent partial disability benefits, returns to work for the pre-injury employer at a wage equal to or greater than the wage the employee was receiving at the time of the injury.  Instead, since the employee did not return to work for his pre-injury employer, the applicable cap was six times the impairment rating.

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: 2011 Tenn LEXIS 91. 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, §§ 81.02, 84.01.

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DE: Worker's Average Weekly Wage Should Not Take Into Consideration Weeks She Missed Work Prior to Her Injury

Where a Delaware worker missed work for 10 of the 26 weeks prior to her injury, her average weekly wage should be based upon her average earnings during each of the 16 weeks she worked; her earnings for the 26-week period should not be divided by 26, held the Supreme Court of Delaware recently, construing Del. Code Ann. tit. 19, § 2302(b).

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: 2011 Del. LEXIS 106. 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, § 93.01.

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IN: Medical Care Provider's Action Against Comp Carrier is Not Barred by Shortened Time Period Allowed for Filing Injured Worker's Claims, But By State's 10-Year "Catchall" Provision

In a case with a simple fact pattern but a complex legal structure, the Court of Appeals of Indiana affirmed a trial court's decision that had granted summary judgment to a workers' compensation insurance carrier in an action filed against it by an attorney attempting to assert a lien against funds recovered by the carrier pursuant to a settlement between the workers' compensation carrier and a liability carrier insuring a third-party responsible for fatal injuries to a physician employee.

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: 2011 Ind. App. LEXIS 216. 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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KS: Trucking Operation Was Not "Agricultural Pursuit" and Injured Driver's Claim Not Barred

A truck driver, who drove a semi-truck for her employer pursuant to a lease agreement and who sustained injuries in an accident as she drove to pick up a load of corn can maintain a workers' compensation claim; her case was not barred by Kan. Stat. Ann. § 44-405, which generally bars claims where the employer is involved in "an agricultural pursuit."  The employer's business was leasing equipment, not farming.

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: 2011 Kan. App. LEXIS 19. 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, § 75.03.

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MA: Unreported Tips At Beauty Salon May Not Be Used to Compute Average Weekly Wage

A cosmetologist at a beauty salon forfeited her right to have her tip income included within her average weekly wage under Mass. Gen. Laws ch. 152 by failing to report her tips for tax purposes, agreed a Massachusetts appellate court 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: 2011 Mass. App. LEXIS 220. 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, § 93.01.

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

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