Five Recent Workers’ Comp Cases You Should Know About (7/1/2011) – Employer Who Knowingly Hires Illegal Alien May Not Oppose Claim Based on Illegal Status

Five Recent Workers’ Comp Cases You Should Know About (7/1/2011) – Employer Who Knowingly Hires Illegal Alien May Not Oppose Claim Based on Illegal Status

Larson's Spotlight on Illegal Alien, Mesothelioma, Unexplained Death, Average Weekly Wage,  and Cab Driver as Independent Contractor. 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.

FL: Employer Who Knowingly Hires Illegal Alien May Not Defend Claim Based on Illegal Status of Employee

Observing that while the employment of illegal aliens is prohibited by both federal and state law, a Florida appellate court recently stated that violation of such laws was an "unfortunate reality," and in as much as the cost of injuries sustained by unlawful workers was no less real than those suffered by lawful workers, that cost should be borne by the industry giving rise to the risk—and best positioned to avoid the loss—not the general taxpaying public. Accordingly, the court held that an employer that knows or should have known of the illegal status of a worker may not assert that illegal status as a defensive matter so as to avoid liability for disability benefits otherwise due. 

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 Fla. App. LEXIS 10042. 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, § 66.03.

LA: Court Gives Retroactive Effect to Rando (Mesothelioma) Decision, Exposure Prior to 1975 Gives Rise to Tort Liability

In 2009, the Louisiana Supreme Court rendered its decision in Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169 (La. 05/22/09), 16 So. 3d 1065, which generally held that mesothelioma resulting from contact with asbestos was not a covered "occupational disease" under the pre-1975 version of the state's Workers' Compensation Act so as to be subject to the exclusive remedy defense.  A Louisiana appellate court recently held that Rando should be applied retroactively so as to overturn a trial court's 2007 grant of summary judgment in favor of a municipality that had been sued by survivors of a firefighter who worked for the city from 1965 until retirement in 1998, who was exposed to asbestos during his working years, and who subsequently died of 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: 2011 La. App. LEXIS 805. 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, § 100.04.

NC: Employer Rebuts Unexplained Death Presumption With Expert Medical Testimony

Like many jurisdictions, North Carolina employs a so-called "unexplained death" presumption.  That is to say that where the evidence shows an employee died within the course and scope of his employment and there is no evidence regarding whether the cause of death was an injury by accident arising out of employment, the claimant is entitled to a presumption that the death was a result of an injury by accident arising out of employment [see Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988)].  Noting, however, that if the presumption is rebutted, then the Industrial Commission must consider the issue of compensability as if the presumption did not exist, with the plaintiff having the burden of proof of showing that the death was a result of an accident arising out of the course and scope of employment, a North Carolina appellate court recently reversed an award of death benefits where the employer presented expert medical evidence that a truck driver's death was not causally connected to the workplace.  The case was remanded to determine if the claimant met her burden of proof.

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 1174. 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, § 7.04.

ME: Long-Haul Driver's Receipt of Per Diem "Special Expenses" Were Not To Be Used In Computing Average Weekly Wage

"Special expenses," consisting of a per diem payment to cover a truck driver's lodging, meals, telephone calls, and showers while on the road were not fringe benefits for purposes of computing the driver's average weekly wage, held the Supreme Judicial Court of Maine recently.  Noting that the amount paid on a per diem basis was consistent with the amount recognized by the IRS to approximate the expenses incurred by long-haul drivers for actual expenses, that the payments could, therefore, be excluded from the driver's income for federal income taxation purposes, the court held that the hearing officer had correctly excluded the payments from the AWW computation.  The court did allow a minor recalculation of the AWW based upon an erroneous reporting of the driver's health and dental insurance premiums paid by the employer.  Those premiums were fringe benefits and were appropriately included for the purpose of computing the AWW.

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 Me. LEXIS 70. 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.

NC: Deceased Cab Driver Was Independent Contractor, Not an Employee

A North Carolina appellate Court recently held that a cab driver who was assaulted and killed while operating a cab for a cab company was an independent contractor and not an employee; her husband and son were, therefore, not entitled to workers' compensation death benefits.  Citing a line of cases that supports such an independent contractor status where the cab is leased to the cab driver, the court acknowledged, but discounted, other factors which would have pointed to a status of employer-employer.  Significantly, the court appeared to ignore the fact that the so-called lease agreement had never been signed by the cab company, the purported lessor. 

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 1207. 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, §§ 62.03, 63.01.

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

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