Five Recent Cases You Should Know About (4/22/2011)

Five Recent Cases You Should Know About (4/22/2011)

Larson's Pre-existing Condition, Exclusive Remedy, Settlement, Increased Risk, and Common Law Wife. 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: Claimant Fails to Show Pre-existing Condition Was Aggravated by Slip and Fall Injury

Construing a 2006 amendment to Ohio Rev. Code § 4123.01(C)(4) that changed the state's "aggravation" standard from mere aggravation to "substantial aggravation," and that required such substantial aggravation be shown by objective diagnostic or clinical findings or objective test results, an Ohio appellate court recently affirmed a decision by a trial court that refused to award additional workers' compensation benefits for an alleged aggravation.  The worker sustained injuries in a slip and fall on a wet floor.  She subsequently contented that the incident aggravated her pre-existing Chiari malformation.  The worker failed to document evidence of the condition or symptoms of it existing prior to the slip and fall and she failed to show that the condition was "substantially aggravated" by her injury. 

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 Ohio App. LEXIS 1358. 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, §§ 9.02.

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TX: Worker's Fraud and Negligent Misrepresentation Claims Against Employer Are Not Barred by Exclusive Remedy Provisions of State Workers' Compensation Law

A Texas appellate court recently held that a worker's tort claims for fraud and negligent misrepresentation against his employer were not barred by exclusivity; his claim of negligent injury was, however.  The worker presented evidence that the employer never provided the requisite written notice of workers' compensation coverage, yet after filing suit against the employer, he began to receive benefits.  Lack of notice of coverage did not prevent the employer from utilizing his exclusivity defense; the defense did not cover fraud and negligent misrepresentation, however. 

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 Tex. App. LEXIS 2543. 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, §§ 104.03.

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OH: Burden of Proof As To Whether A Workers' Compensation Settlement is Part of Marital Estate Lies With Spouse, Not Injured Worker

An Ohio appellate court recently held that the burden of proof is on the party who seeks to demonstrate that a workers' compensation settlement was marital property for purposes of a property settlement in a divorce proceeding, and not on the injured worker.  Reversing a decision by a state trial court, the appellate court noted that the worker was injured eleven years before the divorce was final and received two lump-sums totaling some $44,000 after the couple separated, but before the divorce became final. The trial court found property received during the marriage was presumed to be a marital asset, and the party seeking to characterize the property as separate had the burden to rebut the presumption. The appellate court disagreed, holding that under Ohio Rev. Code § 3105.171, the property was not part of the marital estate for purposes of a division of the marital estate; the spouse seeking to have it determined as part of the marital estate had the burden of proving that issue. 

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 Ohio App. LEXIS 1602. 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, §§ 89.10.

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NC: Expert Evidence is Not Always Necessary to Show That Work Environment Produced an Increased Risk of Being Struck By Lightning

The Court of Appeals of North Carolina recently affirmed a decision by the state's Industrial Commission awarding workers' compensation benefits to a framer and drywall hanger who was struck by lightning as he stood inside a garage area under construction and talked to a co-worker on a landline telephone.  Finding the Commission's decision that the construction worker's employment placed him at an increased risk of sustaining injuries from being struck by lightning, the appellate court was unconvinced by the employer's argument that expert testimony was required to show whether plaintiff actually faced greater risk.  Citing Larson's Workers' Compensation Law, Ch. 5, § 5.01, the appellate court observed that lay testimony as to such factors as height above the surrounding area, nearness to trees or tall structures, nearness to metallic objects likely to attract lightning, or presence of wetness and other conditions facilitating transmission of lightning could be presented as a substitute for expert testimony.  Noting that the Commission had made numerous findings regarding the increased risk faced by the construction worker, the court held that the non-expert testimony presented was sufficient to support the Commission's findings.

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 N.C. App. LEXIS 704. 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, §§ 5.01.

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OK: District Court's Decision That Claimant Was Common Law Wife of Deceased Worker is Binding in Separate Workers' Compensation Proceeding

In a split decision, the Supreme Court of Oklahoma recently determined that the employer and the mother of a deceased worker were bound by a decision by a state district court that held that the workers' compensation claimant was the common law wife of the deceased.  The majority so held in spite of the fact that the employer was not a party to the district court proceeding nor an underlying probate court dispute, finding that the attempt to have the same issue adjudicated before another court was barred by issue preclusion.  The district court's finding that the claimant was the decedent's surviving spouse and an heir at law was sufficient to establish her claim of surviving spouse entitled to death benefits per the Workers' Compensation Act. The court noted a procedural irregularity—summary judgment, as such, was not proper in workers' compensation proceedings and indicated that while the trial tribunal reached the correct result, it used an erroneous procedure to do so.

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 Okla. LEXIS 32. 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, §§ 96.02.

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

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