Five Recent Workers’ Comp Cases You Should Know About (8/5/2011) – Business Owner Saves Comp Premiums and Successfully Limits Injured Worker's AWW Computation By Dividing Business into Two Parts

Five Recent Workers’ Comp Cases You Should Know About (8/5/2011) – Business Owner Saves Comp Premiums and Successfully Limits Injured Worker's AWW Computation By Dividing Business into Two Parts

Larson's Spotlight on Average Weekly Wage, Attorney’s Fee, Co-Worker Violence, Retaliation, and Heart Attack. 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.

MS: Business Owner Saves Comp Premiums and Successfully Limits Injured Worker's AWW Computation By Dividing Business into Two Parts

A worker who was employed by two related businesses—one cut and trimmed trees and the other performed stump and debris removal services—was not engaged in dual employment at the time he fell from a tree, agreed a Mississippi appellate court as it affirmed a decision of the state's Workers' Compensation Commission.  Accordingly, the injured worker's average weekly wage was based only on his earnings with the tree trimming business; his earnings from the concurrent employment could not be considered (since he worked just a few hours each week for the tree trimming business, the court decision saved the employer/insurer a considerable sum).  The owner of both businesses acknowledged that he had segregated the operation, at least in part, so as to save workers' compensation insurance premiums—the tree trimming business could secure coverage only at "assigned risk" rates.  The worker contended the whole operation was a sham, that the workers were often intermingled and were controlled from the same facility and used the same equipment.  The appellate court indicated there was sufficient evidence to support the Commission's finding that the two businesses were separate.  The business owner took great strides to document the work that each component business performed, paid the laborers separately from two accounts, secured workers' compensation insurance from two separate carriers, and otherwise operated the businesses in a straight-forward manner.

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 Miss. App. LEXIS 461. 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, § 93.03.

PA: Limits on Contingency Fees Ok'd By Court

A Pennsylvania appellate court recently held that a key state attorney's fee limitation provision [77 Pa. Stat. Ann. § 998], which places a ceiling on the percentage of contingency fees attorneys may claim when successfully representing a claimant, violates neither the separation of powers doctrine [Pa. Const. art. V, § 10(c)] nor due process.  The court also indicated that 77 Pa. Stat. Ann. § 1000.5, which gives workers' compensation judges the authority to approve and void compromise and release settlement agreements was not unconstitutional as well.

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 Pa. Commw. LEXIS 345. 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, § 133.03.

PA: Fired Worker May Sue Employer Under State Crime Victims' Protection Act

A worker who was fired after he called the police and reported to his employer that he was proceeding with legal action against a co-worker whom he accused of continued harassment and assault, may maintain an action against the employer under the Crime Victims' Employment Protection Act, 18 Pa.C.S. § 4957; his negligent supervision claim was preempted, however, by the Pennsylvania Workers' Compensation Act, held a state court recently.  The fired worker claimed that the co-worker made threats against him and, on one occasion, choked him.  The employer moved the worker to a different jobsite.  Later, however, the co-worker began to work at the same site, although on a different shift.  The worker contended the co-worker began to harass him during shift changes and the worker called the police, notified the employer, and was promptly fired.  The trial court sustained the former employer's demurrer, but the Superior Court found that the worker could proceed under the Crime Victims' Act.

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 Pa. Super. LEXIS 1751. 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, § 100.03.

TX: Company Vice-President's Negative Comment Upon Learning of Worker's Comp Claim Provides Important Evidence of Retaliation

A Texas appeals court recently affirmed the compensatory damages portion of a judgment in favor of a former employee who sued his former employer for retaliatory discharge.  The court found the evidence of retaliation sufficient to support the judgment on the basis that while the employer contended the termination had nothing to do with the employee's workers' compensation claim, a vice-president had commented with displeasure when he learned of the claim and then he made the termination decision.  The court also observed that the employer's down-sizing argument was pretextual; another sales director whose position was being eliminated was not terminated but offered an alternate position while the injured employee was not.  Moreover, immediately after the employee filed his comp claim, the employer prepared paperwork criticizing the employee's performance and for the first time in the employee's lengthy career, warned that the employee need to improve to keep his job.

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 5798. 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, § 104.07.

PA: Injured Worker's Fatal Heart Attack While Holding Termination Letter is Not Compensable

A fatal heart attack sustained by an injured worker two days after he received a termination letter from his employer was not a work-related incident, held a Pennsylvania appellate court recently.  Affirming a denial of benefits by a workers' compensation judge and the Board, the court acknowledged that the decedent had sustained a work-related injury to the shoulder, had begun light duty work, but was subsequently directed by the employer to return to his regular job duties, and then told to go home when the worker's attorney sent the employer a letter indicating the worker was unable to work.  The employer then sent its termination notice.  Testimony indicated that for two days after receiving the letter, the worker was distraught and succumbed to the heart attack while holding the letter.  The appellate court indicated, however, that it was for the trier of the facts to make a determination and the WCJ and the Board had found against the worker's widow.  The court also observed that there was a lack of expert medical evidence indicating that a causal connection existed between the actual employment and the onset of his heart attack.

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 Pa. Commw. LEXIS 344. 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, § 10.02.

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

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