Work Comp Roundup continues to provide a compendium of legal updates representing many states.
Disfigurement Awards in Workers Comp Cases
Closely related to awards provided under a jurisdiction's schedule benefits statute is the provision for some sort of compensation related to disfigurement. As indicated in Chapter 88, most states specifically authorize such awards. The chapter has been revised to include recent cases and commentary on this issue. (WCxKit) There continues to be a division of authority as to whether an award can be made both for loss of a member and for disfigurement resulting from the same loss. Disfigurement awards are not limited to scarification. A Delaware court, for example, has allowed a disfigurement award for varicose veins [see Martinez v. General Metalcraft, Inc., 919 A.2d 561, 2007 Del. LEXIS 64 (2007), See –Larson's Workers Compensation Law Ch. 88, § 88.02 n14.1].
Workplace Deaths
Fatal Injuries Sustained Prior to Employment Contract Found Not Compensable
An Arkansas court reversed a decision that had granted death benefits to the dependents of a purported employee who was killed on what would have been his first day of work as he accompanied his purported employer to a job site while the two discussed the job, its pay, and requirements. The purported employer’s statement that he would have hired the worker had the accident not occurred did not create an employment relationship between the two. See –Larson's Workers Compensation Law, Scroggins v. Glen Roberts Excavation, 2010 Ark. App. LEXIS 88 (2010); Ch. 65,[2] n12.2] (WCxKit)
Death Benefits Awarded Following Firefighters Death after Running Wind Sprints
In Long v. City of Charlotte, 2010 N.C. App. LEXIS 678 (Apr. 20, 2010), the Court of Appeals of North Carolina upheld a decision by the states Industrial Commission that had awarded death benefits to dependents of a 44-year-old firefighter who died after running wind sprints during a physical exercise period. See –Larson's Workers Compensation Law, Ch. 43, [1][b] n42]
Effect of Successive or Concurrent Injuries on Maximum Award
Generally, as to maximum weekly benefits, combined weekly benefits for the two injuries should never be higher than the weekly maximum for total disability. As to maximum-number-of-weeks limits, when the two injuries each have such a limit, most courts still hold that the two periods of time may be placed end to end See –Larson's Workers Compensation Law, [Ch. 92].
Employee Tort Claim Against Employer and Coworker for Improper Dissemination of Medical Information Not Barred by Exclusivity
Finding that an employee's "injuries" resulting from improper dissemination of employee's HIV status did not arise out of her employment, a Tennessee court recently held the employee's tort action against her employer, a manager, and a coworker were outside the workers' compensation law and not barred by exclusivity [Doe v. Walgreens Co., 2010 Tenn. App. LEXIS 734 (Nov. 24, 2010)]. ), See –Larson's Workers Compensation Law, [Ch. 100, § 100.04 n16.1].
North Dakota Supreme Court Allows Subpoena of Bank Records to Stand in Fraud Case
A North Dakota court has allowed information about an injured worker's earnings to be obtained pursuant to a subpoena of bank records. In State v. Hammer, 2010 ND 152, 787 N.W.2d 716 (2010), the Supreme Court of North Dakota affirmed a decision of a state district court that denied a workers' compensation claimant's motion to suppress bank records obtained through administrative subpoena duces tecum in a workers' compensation fraud case. The records had been sought to show that the claimant earned, but did not report, income through a mobile home repair business and in selling scrap metal. Based on the unreported earnings, the Workforce Safety & Insurance contended it had paid $ 24,132.85 in excess benefits. Issuance of the subpoena was within the investigatory powers of WSI. See –Larson's Workers Compensation Law [Ch. 39, § 39.03 n19.1]
2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law. Reprinted with permission.
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