Five Recent Workers’ Comp Cases You Should Know About (6/3/2011) – Claimant May Subpoena Surveillance Videotape

Five Recent Workers’ Comp Cases You Should Know About (6/3/2011) – Claimant May Subpoena Surveillance Videotape

Larson's Spotlight on Offset of VA Benefits, LHWCA Employee Status, Jurisdiction in Alleged Fraud Case, Subpoena of Surveillance Videotape, and Termination of Worker for Distributing Pornography. 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.

MO: Claimant May Subpoena Surveillance Videotape In Spite of 2005 Amendment to Statute

Most states have a provision similar to Rev. Stat. Mo. §  287.215, which generally provides that no statement, written or otherwise, made by the employee may be admitted into evidence unless it is provided to the employee at least 30 days before the hearing at which the evidence is sought to be introduced.  In 2005, the Missouri legislature amended the statute to provide that the term "statement," as used in the section, did not include "a videotape, motion picture, or visual reproduction of an image of an employee."  A Missouri appellate court recently held that in spite of the statutory amendment, a workers' compensation claimant may nevertheless subpoena a surveillance video pursuant to the general discovery provisions of Rule 56.01, as applied through R.S.Mo. § 287.560.  The clarification of the term "statement" in § 287.215 applied only to that section and not in a broader context, held the court.

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 Mo. App. LEXIS 742. 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.

AR: Second Injury Fund Allowed No Credit for VA Disability Benefits Received by Injured Worker

The Supreme Court of Arkansas has held that the state's Second Injury Fund is not entitled to a statutory offset for Veterans Administration benefits paid to an injured worker who had been medically discharged from the U.S. Army in 1984, after receiving a thirty-percent disability rating from the VA and who sustained additional work-related injuries in 2001 and 2003, respectively.  At trial, the worker testified that his VA benefits were increased based on the medical records from his industrial injuries and the Fund contended that it should, therefore, be allowed a credit.  Otherwise, it contended the worker would have a double recovery. The high court indicated that the plain language of Ark. Code Ann. § 11-9-411 did not include a credit for VA benefits, although the statute specifically listed a host of other benefits for which a credit was allowed.  Had the legislature intended to allow a credit for VA benefits, it would have said 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 Ark. LEXIS 219. 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, § 157.03.

IA: Marina Employee Not an "Employee" Under Longshore Act-State Law Governs

An employee of a marina located on the Mississippi River, who decided to remove a torn canopy by means of the bucket and boom of a mini-excavator, and who drowned when the excavator slipped off a ramp as the employee attempted to maneuver the excavator onto a barge in order that the excavator might be better situated for the removal task, was not an "employee" as defined by the Longshore and Harbor Workers Compensation Act (LHWCA).  Accordingly, the surviving spouse's death benefits claim was appropriately before the Iowa Workers' Compensation Commissioner.  The Iowa high court agreed that while the excavator could be used in construction operations, its characteristics did not control.  The employee was involved in regular, routine maintenance and not "construction, replacement, or expansion" of the marina.  That the fatal accident occurred on navigable waters was insufficient.  The employee was not an LHWCA employee under 33 U.S.C. § 902(3)(C).

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 Iowa App. LEXIS 356. 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, § 145.04.

IA: Trial Court, not Workers' Compensation Commissioner, Has Jurisdiction to Hear Carrier's Claim to Recoup Benefits Procured Through Alleged Fraud

A state trial court has jurisdiction to hear the claim filed by a workers' compensation carrier that it is entitled to recover some $29,000 in benefits wrongfully paid to an injured worker where the payment was due to the worker's alleged fraudulent activity, held an Iowa appellate court recently.  Holding that since the carrier owed no additional benefits to the worker, whose original claim appeared not to be in question, the court held that the carrier had no adequate remedy under the Workers' Compensation Act for the worker's alleged fraudulent conduct. Moreover, the court said Iowa case law established the exclusive jurisdiction of the Workers' Compensation Act did not extend to claims of fraudulent procurement of workers' compensation benefits.  The court also added that the carrier's claim was not based on the facts of the initial work injury, which the carrier did not dispute, but was instead based on the worker's alleged fraudulent conduct, which occurred subsequent to and independent of the work injury. Since the fraud complained of was "extrinsic and collateral" to the workers' compensation matter, the Workers' Compensation Commissioner had no jurisdiction.

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 Iowa App. LEXIS 355. 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, § 39.02.

UT: Worker's Termination for Distributing Pornography to Co-Workers Does Not Disqualify Him From Continued Disability Benefits

The Court of Appeals of Utah recently affirmed an award of continued workers' compensation benefits to an injured worker in spite of the fact that he was terminated-after beginning a light duty program-for sending pornographic images to other employees' cell phones and on company email accounts. The court agreed that there was no evidence the worker actually intended to sever his employment relationship with his employer.  Nor had the worker refused light duty.  The court did not find persuasive the employer's contention that light work remained available to the worker, that he had constructively declined it by his improper activities.

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 Utah App. 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, § 84.04.

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

For more information about LexisNexis products and solutions connect with us through our corporate site.