April 12, 2015

Appeal of Brandon Kelly - Truck Accident Was Work-Related, Compensable, Court Rules

Justices of the New Hampshire Supreme Court recently ruled the state workers' compensation appeals board erred when it found not compensable the work injuries of a man who suffered severe injury during a truck accident that occurred while he was driving from a job site to the main shop.
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Specifically, the board in Appeal of Brandon Kelly ruled the worker, who fell asleep at the wheel of that truck, had to show his weariness was work-induced. The worker, who suffered a leg amputation as a result of the crash, had allegedly failed to prove this, the board found.

But the state supreme court ruled this was not a prerequisite to receiving workers' compensation, and there was no question the injury arose out of and in the course of worker's employment. Thus, his employment was a substantial contributing factor in the injury, and he deserved to be compensated.

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April 6, 2015

Hildebrant v. State ex rel., Dept. of Workforce Servs. - Ladder Fall Compensation for Surgery Denied

Falls are one of the top causes of injury in the workplace. The Centers for Disease Control and Prevention reports 43 percent of falls over the last decade have involved a ladder. Among construction workers in particular, ladders are involved in 80 percent of all falls that land them in the emergency room.
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Workers who suffer injury as a result of a ladder fall should pursue workers' compensation to cover the cost of medical expenses, as well as lost wages for the amount of time they are unable to work.

This was the case in Hildebrant v. State ex rel., Dep't of Workforce Servs., where an HVAC technician suffered a bad fall while working on a college campus construction project. The worker fell about 20 feet off the ladder, and was taken to a local hospital by ambulance. He complained of pain in his lower back, right shoulder and right leg.

After receiving emergency care, he was discharged but received ongoing care from a physician. The doctor indicated that a small compression fracture in the man's back appeared to be chronic, but he couldn't rule out the possibility that it was caused by the fall. He also had some bone bruising, torn tendons and other issues, but no acute traumatic changes to the lumbar spine. Although he noted patient had ongoing pain, he did not see anything that warranted surgical intervention.

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March 30, 2015

Hoyle v. DTJ Enters., Inc. - Intentional Torts and Employers

The intent of workers' compensation law is to ensure costs resulting from industrial accidents and conditions are borne largely by industry. By ensuring workers receive definite and speedy payments for medical expenses and lost wages incurred for on-the-job injuries and illnesses, they forfeit the right to pursue further litigation.
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This is true across the country, and it's referred to as "exclusive remedy." It means workers' compensation is the exclusive remedy through which workers can be compensated for occupational ailments or injuries. Companies are otherwise immune from civil litigation on these matters.

But, as with all areas of law, there are exceptions. There is the third-party litigation that can be brought against parties who are not considered employers. Beyond that, there is the realm of "intentional tort" by employers.

This has been very narrowly interpreted by most courts. In some states, it's all but impossible to bring such a claim. The definition generally holds anything less than outright, specific intention on the employer's part is insufficient to permit exception to the exclusivity rule. This typically is not going to extend to situations in which employer acts with indifference or even creates an exceptionally or unlawfully hazardous work environment. It instead means the actual intent to cause harm to the worker.

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March 20, 2015

Reports: Workers' Compensation Protections on Chopping Block

Two reports. One by NPR and ProPublica. The other by the Occupational Safety and Health Administration. Released at the same time. Both on the issue of cuts to workers' compensation nationwide. worker2.jpg

Same conclusions: Workers are quickly losing the aspects that made the bargain of workers' compensation worthwhile to employees. Due to legislative action in the last decade, benefits are not easily obtained and the monthly payouts are often far less than they should be. When the exclusive remedy of workers' compensation was established, workers traded the right to sue employers for negligence related to on-the-job injuries in exchange for assurance that their company would subsidize their basic needs while they recovered.

There is now a wide-ranging disparity of these benefits among states, and if action isn't taken soon, we will see this trend continue.

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March 10, 2015

Nealy v. Santa Monica - Workers' Comp Request Granted While Discrimination Claim Denied

In Georgia, companies cannot legally terminate an injured worker as retaliation for filing a workers' compensation claim.
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However, there is no law preventing an employer from terminating an injured worker who is receiving workers' compensation - so long as that worker isn't being punished for filing the claim. Unfortunately, it's not unheard of for employers to invent reasons for firing unrelated to injury. Because Georgia recognizes employment at-will, this means without a written employment contract, a company can fire a worker at any time for most any reason.

This puts injured Georgia workers in a tough spot, and may actually discourage some from reporting their work-related injury in the first place.

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March 3, 2015

Thomas v. 5 Star Transportation - Fatal Work Crash, Common-Law Spousal Entitlement, Disputed

When it comes to workers' compensation law, states have varying applications with regard to disputed issues. In general, though, what must be proven is the injury or illness was caused or compounded by work-related duties or functions, and that the individual seeking to collect has legal standing to do so.
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A recent case before the South Carolina Court of Appeals posed some interesting issues with regard to these elements, but the claimant still prevailed.

In Thomas v. 5 Star Transportation, claimant was the widow of a worker who died in a traffic accident while driving a tour bus for his employer. But the case was complicated by two central facts:


  • The worker had suffered a brain aneurysm around the time of his death, though it could not definitively be proven it happened before the crash.

  • The woman who sought spousal benefits was not in fact married to decedent, as his divorce to his previous was not final at the time of their wedding - a fact she didn't learn until after he died.


Yet, claimant was able to succeed in securing workers' compensation death benefits, but it didn't come without a vigorous fight by the employer.

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February 28, 2015

Sullwold v. Salvation Army - Heart Attack at Home Deemed Compensable

In most cases, injuries that happen at home or are attributed to an internal, personal condition will not be compensated through workers' compensation insurance. That's because injuries must arise out of and in the course of one's employment.
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However, the recent case of Sullwold v. Salvation Army, before the Maine Supreme Judicial Court, proves there are always exceptions.

The case involved a high-level executive for a non-profit organization who died of a heart attack while walking on the treadmill at home. Three factors made this case different than most others we might see in similar circumstances. The first is that plaintiff was given permission to work from home on some occasions, and this was one of those. The second is that although he was on a treadmill when he suffered the heart attack, he was working from his smartphone as he walked. And finally, his widow was able to produce evidence indicating the heart attack was caused in large part due to work-related stress.

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February 22, 2015

Moore v. K-Mart Corp. - Treatment for Toxic Metals Exposure Compensable

A woman who became ill as a result of exposure to toxic heavy metals while working to restore furniture for a large chain store was recently awarded compensation for necessary treatments at her doctor's office.
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In Moore v. K-Mart Corp., the West Virginia Supreme Court took the unusual step of declaring a law invalid for its direct contravention to the underlying purpose of state workers' compensation benefits law.

The primary issue was not whether the illness was work-related. No one disputed it. The issue was not the extent of injury. All agreed it was severe. In fact, no one even argued the treatment she was receiving wasn't medically necessary or reasonable. The core of the dispute was the place in which she was receiving this particular type of treatment.

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February 10, 2015

Morales v. Zenith Ins. Co. - 11th Circuit Affirms Exclusive Remedy Provision

In a decision aligned with that of the Florida Supreme Court, the 11th Circuit Court of Appeals - the same one that oversees the review of Georgia cases - backed the exclusive remedy provision of workers' compensation law as the sole source of compensation for a deceased worker's family.
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The exclusive remedy provision - which is woven into workers' compensation laws in all 50 states - strips workers of the right to sue employers, even when the incident leading to injury or death was the result of negligence. Rare exceptions are made in certain states when it can be shown an employer displayed wanton or reckless disregard for the safety of workers. However, in most cases, workers and their families will be limited to workers' compensation benefits from an employer.

Some situations may be ripe for civil litigation against a third-party wrongdoer, but that will depend heavily on the underlying circumstances.

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February 5, 2015

State ex rel McCormick v. McDonald's - Maximum Medical Improvement

In workers' compensation law, the concept of maximum medical improvement can be an especially thorny one. That's because this determination spurs important questions about the continuation and amount of benefits.
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Maximum medical improvement is considered the point at which a worker's medical condition has stabilized to the point that any further improvement isn't likely, even in spite of ongoing treatment or rehabilitation. Essentially, it's a plateau, meaning the worker is "as good as he/she is going to get."

This can indicate full recovery, but it also can simply mean the patient is not going to get any better. It is from this point a determination can be made regarding permanent partial impairment.

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January 31, 2015

Demetres v. East West Construction - Subcontractor Deemed "Co-Employee"

When a worker suffers an on-the-job injury, state law holds workers' compensation benefits are the sole source of compensation a worker can receive, with few exceptions. These benefits are considered the "exclusive remedy" a worker can pursue against an employer.
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Other third parties may still be vulnerable to a negligence lawsuit, but plaintiffs should bear in mind that some are still statutorily protected under workers' compensation law in some cases.

For example, a negligent third-party driver could be held liable, as could potentially the property owner of a construction site. However, there are some exceptions. Co-workers, for example, are usually protected. (A 2012 Georgia Supreme Court decision in Smith v. Ellis held co-workers could potentially be held liable for injuries caused if their negligent actions occurred outside the course and scope of their employment.)

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January 22, 2015

Barnes v. Charter 1 Realty - Idiopathic Exception to Workers' Comp Coverage Clarified

In order for a workplace injury to be compensable, it has to arise out of and in the course of employment. This means there has to be some connection between the conditions under which employee was working the injury that resulted. feetwalking.jpg

Usually, if an injury is deemed idiopathic, or due to some internal weakness or breakdown, it's not considered compensable by workers' compensation because though it may arise in the course of employment, it does not arise out of employment.

An example might be a heart attack or seizure that occurs at work, but had nothing to do with work.

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January 12, 2015

US Bank Home Mortgage v. Schrecker - Afternoon Break Street Crossing Injury Not Compensable

State supreme court justices in Kentucky reversed three lower courts in finding worker injured in a vehicle accident while crossing the street to access a fast-food restaurant adjacent to her office was not entitled to collect workers' compensation for her injuries.
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The court determined the worker was not acting in the course and scope of employment because she undertook the route in "in order to seek personal comfort." In so doing, the court found, she exposed herself to a hazard that was not only totally removed form the typical day-to-day coming-and-going activity, but it was also illegal per state law (she was jaywalking) and thus impliedly barred by the company.

The ruling in US Bank Home Mortgage v. Schrecker underscores once again how difficult it can be to secure workers' compensation payments when a worker leaves the traditional office setting. Work-related car accidents may be compensable, but one must prove he or she was acting in the course or scope of employment.

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January 6, 2015

Martin County Coal Co. v. Goble - On Permanent Psychological Impairments

In most work-related injury claims, the primary focus is on physical injuries. However, there are some cases in which psychological injuries may have been sustained as well as a result of the physical injury or related work incident.
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Such injuries, which may include depression, anxiety, post-traumatic stress disorder (PTSD), pain disorder and adjustment disorders, are more difficult to prove to state workers' compensation board officials. This is particularly true when injured workers are seeking to show permanent psychological injuries.

But as the recent case of Martin County Coal Co. v. Goble, it most certainly is possible with the proper evidence.

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December 30, 2014

W. World Ins. Co. v. Armbruster - Seasonal Worker Deemed "Employee," Excluded From Tort

Many companies in Georgia and elsewhere employ workers on a part-time, temporary or seasonal basis. State laws vary on the degree of workers' compensation insurance coverage companies are required to provide for these workers in the event of injury.
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Some states don't require any coverage at all, while others require companies to carry as much coverage for these workers as they would any other full-time employee. In Georgia, the state requires most employers with three or more workers - including part-time and seasonal employees - to purchase workers' compensation for those individuals.

There are some exceptions - federal government agencies, railroad carriers, domestic servants and farm laborers.

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