Five Recent Workers’ Comp Cases You Should Know About (8/19/2011) – He May Not Be Larry the Cable Guy, But This “Cable Guy" is Employee, Not Independent Contractor

Five Recent Workers’ Comp Cases You Should Know About (8/19/2011) – He May Not Be Larry the Cable Guy, But This “Cable Guy" is Employee, Not Independent Contractor

Larson's Spotlight on Employment Status, Fraud, Statute of Limitations, Borrowed Servant, and Jurisdiction. 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.

NC: "Cable Guy" is Employee, Not Independent Contractor

Finding that the purported employer exercised the degree of control that was characteristic of an employer's control over an employee and not the sort of control that is normally exerted over independent contractors, a North Carolina appellate court recently reversed a decision of the state's Industrial Commission that had denied workers' compensation coverage to a television cable installer.  Citing Larson's Workers' Compensation Law, § 61.06, the appellate court observed that the cable installer did not and could not operate an independent cable installation business, that most aspects of his work schedule were controlled by or dependent upon the purported employer, and that the manner in which the installer performed his work was controlled by the purported employer, which exercised asserted supervisory authority over and the right to discipline the installer.  The court also noted that while there was some degree of special skill required to perform the work, the installer did not have the unfettered right to make "independent use" of that skill, knowledge, and training. While the installer provided his own tools, he was required to use a particular set of tools.  Finally the installer was required to wear a uniform displaying the purported employer's name.  All these factors pointed to an employment relationship.

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 1630. 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, § 61.02, 61.06.

TN: No Retaliatory Discharge Where Employee Drawing Total Disability Benefits Was Videotaped Building a Barn

A counterclaim for retaliatory discharge filed by an injured worker in an action brought by a workers' compensation carrier to terminate the worker's disability benefits and to disqualify him from future benefits was appropriately disposed of by summary judgment at the trial court level, held a Tennessee appellate court recently.  Citing Larson's Workers' Compensation Law, current § 104.07, the court noted that there was ample evidence that the worker was not terminated in retaliation for his filing a workers' compensation claim—more than $200,000 in benefits had been paid—but rather, he was fired for fraudulent activity.  A videotape that showed him building a barn while he was collecting temporary total disability benefits was sufficient to show that the employer's reasons for firing him were not pretextual.

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. App. LEXIS 428. 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.

DE: Suspicions That Pain Might Be Associated With Employment, Without More, Does Not Start "the Ticking" of the Limitations Clock

An employee's workers' compensation claim was timely filed when, in 2005, she began to experience pain in her lower back, which she managed by using over-the-counter medications, sports creams, heat, massages, and a hot tub, but did not actually seek benefits until July 30, 2008, held the Supreme Court of Delaware.  The court indicated that while the employee had suspected that her job duties had aggravated her back pain in 2005, that suspicion, without more, was insufficient to make her condition compensable. It was not until 2008 when she was diagnosed by an ER physician, that she recognized the nature, seriousness, and probable compensable nature of her injury. Consequently, her claim for total and partial disability benefits was not barred by the statute of limitations.

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 431. 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, § 126.05.

SC: Nurse Anesthetist Provided to Medical Center by Staffing Company Was Not Employee, No Recovery Following Injury in Operating Room

A certified registered nurse anesthetist (CRNA), who responded to an Internet ad by a temporary medical staffing company and who was assigned to a South Carolina medical center was not an employee, or "borrowed servant" of the medical center, for purposes of workers' compensation benefits, held a South Carolina appellate court recently.  Reversing a decision of the Appellate Panel of the Workers' Compensation Commission, the appeals court held that the circumstances indicated the medical center did not have sufficient control over the CRNA's duties to support an employer-employee relationship.  Moreover, the medical center did not supply the CRNA with benefits, such as a 401K, as it did for its employees.  While it did supply scrub suits, anesthesia machines, monitoring equipment and other medical paraphernalia, the court pointed out that such was a legal requirement imposed upon the medical center; it had not been supplied for the convenience of the CRNA.

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 S.C. App. LEXIS 204. 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, § 67.01.

MN: Workers' Compensation Court of Appeals Did Not Have Jurisdiction to Decide Insurance Question Related to Policy Procured for Coverage in Another State

The Supreme Court of Minnesota recently acknowledged that while that workers' compensation courts and commissions have jurisdiction over insurance questions, at least when the resolution of those questions is ancillary to the employee's right to compensation [citing Larson's Workers' Compensation Law, § 150.04[1], that jurisdiction is not unlimited.  Here, the compensation judge found that the Wisconsin-based employer/trucking company was not insured for its liability under the Minnesota Act for a driver's work-related injury that occurred in Minnesota, finding that the policy that that the trucking company held at the time of the driver's injury unambiguously excluded coverage of accidents in Minnesota. The judge directed the employer to reimburse and pay a penalty to the Minnesota Department of Law and Industry, Special Claims Section (WCCA).  The order was vacated, however, by the Workers' Compensation Court of Appeals, which went on to declare the exclusion in the Wisconsin insurance policy invalid and unenforceable.  The supreme court held such a decision was beyond the powers of the WCCA.

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 Minn. LEXIS 454. 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, § 150.04.

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

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