Injured Worker Must Show Wiggling His Butt Was Not Disqualifying Horseplay

In Iowa Case Burden of Proof is Upon Injured Worker to Show that Greeting a Co-worker By "Wiggling His Butt" Was Not Disqualifying Horseplay

Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reports.
Here's What Happened
Vegors worked as a machine inspector for the water district, a company that installed rural water lines. He was injured at work when a pickup truck being driven by Byrd, a co-employee, struck him. The evidence indicated that at the time of injury Vegors had his hands full and gestured a greeting by "wiggling his butt" at Byrd. Byrd intended to "bump" Vegors with the mirror of the truck, but instead, hit him with the truck bed. Employees later testified that on a number of other occasions the two had gestured to each other in unusual ways when their hands were full. On one occasion, for example, one of the men had "waved" the boom of a track hoe at the other. 
Vegors sought workers' compensation and the water district contested the claim, arguing that Vegors was barred from recovery because his horseplay removed the incident from the employment. The water district also pled the affirmative defense of willful injury. The deputy commission held that the water district had the burden of proving the defense of horseplay and found that Vegors intended to shake his hind end as a means of communication and not to initiate, instigate, or participate in the horseplay that led to the injury. Recovery of workers' compensation benefits was not, therefore, barred. The commissioner affirmed but, upon further appeal, the district court reversed, holding that Vegors was barred from recovery. Vegors then appealed. (WCxKit)
 
Here's What The Court Decided
In Xenia Rural Water Dist. v. Vegors, 2010 Iowa Sup. LEXIS 83 (July 23, 2010), the Supreme Court of Iowa reiterated the rule that the injured worker had the burden of showing that the injury arose out of and in the course of the employment. It indicated further that when an employer contended that a claimant's injury was caused by horseplay, and not the employment, the burden of proof did not shift away from the claimant; he or she retained the burden of showing the claim was compensable.
Quoting Larson's Workers' Compensation Law, § 23.07[3], the supreme court observed, however, that not all instances of horseplay barred recovery. Only where it was determined that the claimant had substantially deviated from the line of duty so that his or her actions were foreign to the (WCxKit) employer's work should recovery be denied. The court concluded, in relevant part, that in the instant case the deputy commission had incorrectly applied the burden of proof. The matter was, therefore, remanded for appropriate findings. See generally Larson's Workers' Compensation Law, §§ 51.01, 51.02, 51.03.

Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation

 
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IOWA Injury vs Occupational Disease

How Would You Decide? Statutes of limitation for occupational disease vs. injury. When a disease can also be a workplace injury?

Here's what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reports.

Here's What Happened

Burress worked at IBP's meatpacking plant from 1987 until 1997. His first few years of work involved significant contact with hogs and hog blood and on at least one occasion during that early time period, he cut a finger while working with the hogs.

During his last eight years of work he worked in IBP's trolley room, where he did not have much contact with hogs, but occasionally did come into contact with hog blood. During this latter period, Burress indicated he cut his finger and elbow and sustained a superficial puncture wound to his face. Six years after leaving IBP, Burress was diagnosed with brucellosis with osteomyelitis. He alerted IBP of a potential workers' compensation claim by letter. On January 3, 2005, Burress filed a claim alleging injury through contact with blood products and tissue from slaughtered hogs.

IBP contended the injury was, if anything, an occupational disease and that Burress' recovery was barred by Iowa Code § 85A.12, which generally required a claim to be filed no later than one year after Burress' last exposure. The deputy commissioner disagreed with IBP, finding that Burress contracted brucellosis as a result of trauma, that Burress did not become aware of his condition until early December 2004, and that his petition for benefits was filed within two years, as prescribed by chapter 85.

The commissioner affirmed and IBP petitioned for review with the district court. That court reversed the agency's decision, finding that Burress suffered from an occupational disease, not an injury, and that Burress had failed to file his petition within one year after the last exposure. After an intermediate appeal to the state court of appeals, the case reached the state supreme court.

Here's What the Court Decided

In IBP, Inc. v. Burress, 2010 Iowa Sup. LEXIS 18 (Mar. 5, 2010), the Supreme Court of Iowa held there was sufficient evidence to support the commissioner's finding that Burress had sustained an injury and not an occupational disease. Accordingly, his claim was not barred by the one-year statute of limitations related to occupational diseases. Acknowledging that brucellosis was included within the list of compensable occupational diseases, the high court stated that the disease could, nevertheless, be an "injury" under appropriate circumstances, such as when the germs gained entrance through a scratch or through unexpected or abnormal exposure to infection [quoting Larson's Workers' Compensation Law]. (workersxzcompxzkit)

The court also observed that in Perkins v. HEA of Iowa, Inc., 651 N.W.2d 40, 43 (Iowa 2002), it had determined that an employee's hepatitis C was an injury because her "infection was linked to a sudden, specific incident of exposure." [Id. at 43]. That Burress could not point to a specific incident did not bar recovery, indicated the court, since the likelihood was that his condition had been contracted through contact with the hog blood at a time when Burress had some open wound. The court also held, however, that there was an issue as to whether Burress had provided notice to IBP of his claim within 90 days of discovery. The case was remanded for such a determination.

See generally Larson's Workers' Compensation Law, §§ 51.01, 51.02, 51.03.

 Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation

 
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ ReduceYourWorkersComp.com.

May I borrow a Firefighter Por Favor

Question:   Can the City of Hartford be reimbursed for outlay of workers’ comp benefits to Hartford firefighter injured while fighting fire in West Hartford. 

Here’s What Happened
The West Hartford fire department responded to a call at a complex of apartments and condominiums in West Hartford where a significant fire broke out. The size and ferocity of the blaze was beyond the department resources. 
 
As is common in these cases, a request for reciprocity was made by the officer on the scene from the City of Hartford's (the City) fire department. 
 
Derrane, a Hartford firefighter, was dispatched along with other members of his unit to help fight the blaze in keeping with the municipality’s oral mutual aid agreement. Derrane was injured in the course of the event. He sought and received workers' compensation benefits from the City. 
 
The City, in turn, sought reimbursement from West Hartford under Conn. Gen. Stat. § 7-433d, stating generally when a uniformed member of a paid fire department offers his or her services to another fire company actively engaged in fire duties and the firefighter is injured, he or she is entitled to receive benefits as if he or she were a member of the fire department utilizing his or her services.
 
West Hartford was ordered to reimburse the City for indemnity and medical benefits paid, and to assume liability for the remainder of the Derrane's claim.  The decision was reversed by the Review Board and The City appealed.
 
Here's What the Court Decided
In Derrane v. City of Hartford, 295 Conn. 35, 2010 Conn. LEXIS 56 (Mar. 2, 2010), the Supreme Court of Connecticut affirmed the decision of the Review Board.
 
The court indicated § 7-433d applied only in good Samaritan situations wherein an individual firefighter happened upon a fire in a municipality other than his own, offered his services to the fire department in that municipality, which thereafter accepted the offer of services, and the firefighter was injured while fighting the fire. 
 
The court said that here, Derrane was injured while working his regular shift, in a place he was ordered to be by his superiors, and while performing firefighting duties under their direction and command.  (workersxzcompxzkit)
 
Concluding that § 7-433d did not apply to mutual aid requests handled by paid firefighters, the court indicated Derrane was engaged in activity "arising out of and in the course of his employment" at the time of his injury, and his employer, the City, was liable for workers' compensation benefits without right to reimbursement from West Hartford. 
 
See generally Larson's Workers' Compensation Law, §§ 67.03, 67.06, 78.04.

Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation


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Workers Comp Exclusivity Bar May Not Protect Employer in All Situations

An employee was injured when safety mat malfunctioned. Here's what happened:
An employer ("the employer") determined it should install special safety mats around a shear cutting machine to eliminate hazards presented when a worker stood too close to the machine. The safety mats functioned by shutting the cutting machine down when a certain amount of pressure was applied to the mats, i.e., when anyone stepped on them.
The employer hired a machinery company ("the company") to modify the machine and install the mats. In spite of the installation, an employee's left arm was severed when the employee attempted to clear a jammed piece of metal from the machine. 
The employee filed a civil action against multiple parties, including the company, alleging various causes of action, including negligence for failing to properly and adequately repair, maintain and inspect the safety mat system.
In turn, the company filed a third-party complaint against the employer, seeking indemnification and/or contribution. The employer filed a motion for summary judgment, contending in relevant part that the company's third-party action was barred by the exclusive remedy provisions of the Delaware Workers' Compensation Act.
 
 
Here's What the Court Decided
In Thompson v. Murata Wiedemann, Inc., 2010 Del. Super. LEXIS 50 (Feb. 19, 2010), the Superior Court of Delaware, New Castle initially indicated that under Del. Code Ann. tit. 10, § 6302, the right of contribution existed between joint tortfeasors.  The court held, however, that the employer could not be a joint tortfeasor with the company, that the exclusivity provision of Del. Code Ann. tit. 19, § 2304 precluded the assertion of any contribution against it by the company.
The exclusivity provision did not, however, bar the company's contractual claim for indemnification against the employer if it could show a breach of contract, express or implied. In Diamond St. Tel. Co. v. University of Del., 269 A.2d 52 (Del. 1970), the Delaware Supreme Court held that contractors may be liable on a theory of implied indemnity if they breach "an obligation to perform [their] work with due care" [269 A.2d at 57].  
Specifically, the Diamond State court identified three factual scenarios where an employer could be liable to a third party for implied indemnity: (1) where the employer creates a dangerous condition on the third party's premises and injury results; (2) where the employer knowingly permits the employee to work under dangerous conditions caused by the third party and injury results; and (3) where the employer activates a latent dangerous condition created by the third party and injury results. (workersxzcompxzkit)
Viewing the record in the light most favorable to the company, the Superior Court indicated that the record was not fully developed, that the court could not rule out the possibility that the company might establish liability under an implied contract. Summary judgment was, therefore, appropriate only with regard to the contribution claim. 
See generally Larson's Workers' Compensation Law, §§ 121.02, 121.05.
 

Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation


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©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ ReduceYourWorkersComp.com.

Bunkhouse Rule Whether Work Conditions Require Worker to Live In Bunkhouse

Lexis Nexis Workers Comp Law Center reports on new South Carolina “bunkhouse” rule case.

Note: Lexis Nexis Law Community is migrating to a new platform this weekend, so when you log on soon, it'll have a great new look.

 
Here's What Happened
A migrant worker fell on a wet sidewalk outside employer-provided housing, fracturing his right ankle. Housing was supplied to the worker at no charge, in part, because the farm was remotely located on St. Helena Island, South Carolina.
The employer terminated the worker citing inability to perform the work duties. Even though the worker had not actually started work, but was hired earlier on the day of his fall, he filed a workers’ compensation claim.  
The hearing commissioner determined the worker had not sustained a compensable injury because he was not injured during the course and scope of his employment.
According to the hearing commissioner, the worker "was under no requirement to live in the employer- provided housing pursuant to his contract for employment."  His work did not require he be on continuous call, and he was not engaged in any activities calculated to further, either directly or indirectly, the business of his employer.  
The commissioner also indicated  the wet sidewalk was not different in character or design from other sidewalks, and the risk associated with slipping on the sidewalk was not one uniquely associated with his employment; rather, it was one he would have been equally exposed to apart from his employment. The Appellate Panel and circuit court affirmed.
 
Here's What The Court Decided
In Pierre v. Seaside Farms, 2010 S.C. LEXIS 288 (Feb. 16, 2010), the Supreme Court of South Carolina reversed and remanded, holding that the injury did, indeed, occur within the course and scope of the employment. 
Acknowledging that South Carolina courts had not been called upon to render a decision involving the so-called "bunkhouse rule" (see Larson's Workers' Compensation Law, § xx.xx), South Carolina courts generally followed decisions from North Carolina, whose workers' compensation act was the basis for the South Carolina act, but the circuit court's reliance upon Jauregui v. Carolina Vegetables, 436 S.E.2d 268 (N.C. Ct. App. 1993), was misplaced. 
Whether a worker was contractually required to live on the employer's premises was not necessarily as important as whether the practical circumstances required that he or she live there. 
The court found more persuasive the decision in Chandler v. Nello L. Teer Co., 281 S.E.2d 718 (N.C. Ct. App. 1981), aff'd, 287 S.E.2d 890, 891 (N.C. 1982) (allowing benefits where the employee was stationed at a remote work camp for a road building project in Africa and the accident occurred as he was traveling back to his employer's camp after an off-duty excursion with friends; the worker was still within the confines of the employer's road project and was returning to his employer-provided sleeping quarters at the time of the accident). 
Examining decisions from several other jurisdictions, the South Carolina high court determined the worker in the instant case was essentially required to live on the employer's premises by the nature of his employment and was making a reasonable use of the employer-provided premises at the time of his accident.  The court also indicated that the worker's injury was causally related to his employment in that it was due to the conditions under which he lived, i.e., a wet sidewalk outside his building. 
See generally Larson's Workers' Compensation Law, § 24.03.

Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation


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©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ ReduceYourWorkersComp.com.

Is Workers Comp Settlement Marital Property

How Would You Decide: Kentucky Court Finds Lump Sum Workers' Comp Settlement is Marital Property—Divides Equally Between Injured Worker and Spouse?

Here's What Happened
Husband and wife,  Kentucky residents, were married in 2000 and had two children born of the marriage. Husband suffered a work-related injury in January 2006. Husband and wife separated in mid-April 2006. Husband filed an application for workers' compensation benefits after the separation. A settlement agreement providing for $30,000 was approved after wife petitioned for dissolution of the marriage. The breakdown of the settlement included $15,000.00 for future and past income benefits; $10,000.00 for waiver of future medical benefits; $2,500.00 for waiver of his right to reopen; and $2,500.00 for a waiver of his right to vocational rehabilitation. The trial court concluded that the husband's entire workers' compensation settlement was a marital asset and awarded the wife one-half of the settlement. The husband contended the trial court erred by determining that his entire workers' compensation settlement was a marital asset and that the trial court failed to divide the settlement in just proportions.

Here's What The Court Decided
In Day v. Day, 2009 Ky. App. LEXIS 248 (Dec. 11, 2009),  the Court of Appeals of Kentucky held there had been no error. Citing Quiggins v. Quiggins, 637 S.W.2d 666 (Ky. Ct. App. 1982), the court noted that workers' compensation benefits in either the form of a lump sum settlement or ongoing benefits are marital property. The court also observed that the marriage had not been of short duration, that the husband was not totally disabled, and that the husband had the ability to obtain appropriate job skills but had chosen not to do so, the appellate court found that the trial court had appropriately found that the parties equally contributed to the marriage. The trial court found that the parties contributed equally to the marriage. The trial court had broad discretion in dividing marital property. (workersxzcompxzkit) While the court was mindful that the husband was injured just three months prior to the separation, the appellate court could not conclude that the trial court had abused its discretion.

See generally  Larson's Workers' Compensation Law, § 89.08.

Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ ReduceYourWorkersComp.com t.com

How Videotape Captured REAL Capabilities of Injured Worker

Videotape Evidence Undermines Tennessee EMT’s Claim for Permanent Disability


Here’s What Happened:

 

Lesko, an EMT/paramedic,  injured her lower back while assisting in moving a patient on a stretcher from a wooded area. She was seen and treated by a host of medical professionals who generally prescribed conservative treatment, pain medication and physical therapy. One of the doctors Lesko saw was a physiatrist. Lesko generally complained of pain, showed a very slow and “bizarre” gait, and indicated she had experienced other difficulties. Tests revealed some normal degenerative changes in her back, but nothing conclusive.
 

Several physicians  indicated that “symptom magnification” appeared to be present. Prior to her last visit to the physiatrist, the latter viewed part of a private investigator’s videotape recording that showed Lesko enter and exit her physical therapy facility with a slow, labored gait, but later showed Lesko shopping, walking normally, and unloading two bulky items from her car, all without apparent pain or difficulty. The doctor opined that Lesko’s movements captured on the videotape were inconsistent with the symptoms she exhibited at the doctor’s office. Lesko contended she suffered permanent disability as a result of the work-related injury. The trial court ruled that she had no such disability and Lesko appealed.

 

Here’s What The Court Decided:

 

In Lesko v. Tennessee Sch. Bd., 2010 Tenn. Dist. LEXIS 29  (Jan. 22, 2010), the Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, held there had been no error. The court reasoned that while the trial court made no findings as to Lesko’s credibility, its discussion of the many conflicts between Lesko’s testimony and other evidence in the case amounted to a de facto finding that Lesko’s credibility had been diminished. The court observed that the only physician who testified that Lesko had any level of permanent injury had based that testimony on Lesko’s subjective complaints. (workersxzcompxzkit)

 


The court noted
  that video and photographic evidence produced by the employer cast doubt upon Lesko’s credibility in general, and the accuracy of those statements in particular. Because Lesko’s statements were the factual basis for her expert’s opinion, the accuracy of that opinion was also questionable.   The court indicated that under the circumstances, it was unable to conclude that the evidence preponderated against the trial court’s decision to give greater weight to the testimony of the physiatrist, or its finding that Lesko had not sustained a permanent disability.

 

See generally  Larson’s Workers’ Compensation Law, § 127.10.

 

Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.comhttp://law.lexisnexis.com/practiceareas/Workers-Compensation

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Subcontractor Workers Comp Claim vs Trade or Business Defense

How Would You Decide: Injured Subcontactor’s Lawsuit Against Oil Refinery Barred by “Trade or Business” Defense

Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reports.

Here's What Happened

Berthelot, a "journeyman lineman"  who worked with Ca-Par Electric, Inc. ("Ca-Par"), responded to a telephone call from a Murphy Oil, Inc. ("Murphy") employee concerning a power outage at Murphy's oil refinery. Ca-Par had no actual contract with Murphy to perform electrical repair work; rather it dealt with an intermediate party, Ordes Electric, Inc. ("Ordes") that, in turn, had a written contract with Murphy. Berthelot began the necessary repair work, but suffered injuries when a fuse and transformer "blew up simultaneously." He subsequently filed a civil action against Murphy, alleging tort liability. 

Murphy defended
 on the grounds that it was immune by virtue of the Louisiana workers' compensation laws. At issue was Louisiana's particular application of the "statutory employer" rule that provides generally that any principal who undertakes to have work performed by a contractor is a "statutory employer" with respect to work that is "a part of" the principal's "trade, business, or occupation" [see La. Rev. Stat. Ann. § 23:1061], and is accordingly immune from civil suit. Berthelot contended his work was not part of Murphy's trade, business, or occupation since the power outage was "confined only to a restricted area" and that the refinery continued to generate "its products, goods or services" during the outage. Murphy disagreed, contending that the work performed by Berthelot was "an integral part of and essential to the ability of Murphy to generate its goods, products or services."

Here's What The Court Decided:

In Berthelot v. Murphy Oil, Inc., 2010 U.S. Dist. LEXIS 1140  (E.D. La. Jan. 7, 2010), the U.S. District Court for the Eastern District of Louisiana agreed with Murphy and granted its motion for summary judgment against Berthelot. The district court observed that the Louisiana workers' compensation legislation had always provided immunity to statutory employers and that to prevail on its "trade, business or occupation" defense, Murphy was required to demonstrate that both: (1) it entered into a written contract with Berthelot's immediate employer or his statutory employer; and (2) the written contract recognized Murphy as a statutory employer [La. Rev. Stat. Ann. § 23:1061(A)(3)]. The court indicated that if Murphy made such a showing, the burden shifted to Berthelot to come forward with sufficient evidence for a reasonable jury to find that the work he performed was not an integral part of or essential to Murphy's ability to generate goods, products or services. According to the court, Murphy satisfied its burden; Berthelot had not.

The court reasoned
 that while there was no contract between Murphy and Berthelot's employer, Ca-Par, there was such an agreement between Murphy and Ordes who, in turn, had contracted with Ca-Par. That agreement specifically recognized Murphy as a statutory employer. Thus, the burden shifted to Berthelot to show his work was not an integral part of Murphy's business. Berthelot contended that his work was not integral or essential to Murphy's business because Murphy itself could not have performed the work—it employed no qualified electricians—and because Murphy continued producing goods and services while the work was performed. The court indicated, however, that whether an employer itself could perform the work did not determine its statutory employer status. The court indicated that working electricity was an essential part of Murphy's day-to-day operations and that Berthelot was performing work to maintain the uninterrupted flow of this electricity to Murphy's equipment. Berthelot conceded that the high voltage transformer on which he was working was connected to Murphy's equipment and that the equipment could not be operated while the work was performed.  (workersxzcompxzkit) According to the court, under Louisiana law, this was sufficient to establish that Berthelot's work was essential to or an integral part of Murphy's ability to produce goods, products or services. Workers' compensation benefits were Berthelot's sole remedy as against Murphy. 

See generally  Larson's Workers' Compensation Law, § 70.06, 111.04.

Tom Robinson, J.D.  is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation

 Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_

Compensation_Claims/index.php

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
 
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

Is Injured Employee Allowed to Tell Jury He Was Not Collecting Workers Compensation

May Massachusetts Worker Tell Jury He Will Have to Repay Employer's Workers' Compensation Outlay?
 
Here's What Happened
 Having fallen  and sustained injuries during an oil delivery, McNally sued the owner of the oil tank for negligence and breach of the implied warranty of merchantability. At trial, McNally sought to introduce evidence that he had received workers' compensation benefits as a result of the accident and that he would have to repay the amounts to the employer or carrier. 
The defendant  objected to the introduction of this evidence. After a bench conference, the trial judge ruled that the fact that the plaintiff would have to repay the workers' compensation and health insurance benefits would be admitted for the sole purpose of informing the jury that the plaintiff would not receive double recovery, but that in light of defense counsel's concerns about the correctness of the actual dollar amount of the benefits and the effect of this information on the jury, the dollar amount of these benefits would not be admissible. After a jury verdict for the plaintiff in the amount of $ 1,025,000, the defendant appealed, claiming evidentiary errors. 
Here's What The Court Decided:
The court added  that even if the issue were properly before the appellate court, the defendant still would not prevail. The court observed that the "collateral-source rule" was based, at least in part, on the concern that jurors might be led by the irrelevancy of insurance coverage to consider plaintiffs' claims unimportant or trivial or to refuse plaintiffs' verdicts or reduce them, believing that otherwise there would be unjust double recovery. The appellate court indicated that the trial judge had acted with this concern in mind and, by limiting the evidence to be admitted, avoided possible prejudicial effect. (workersxzcompxzkit)
The appellate court  concluded that the jury heard evidence that the McNally sustained serious injuries, underwent several surgeries and continued to experience pain, and that his functioning was limited and he would be unable to resume his job as an oil delivery driver. Moreover, the evidence suggested that at the time of trial, McNally's medical bills were $ 111,326 and his lost wages were $ 286,836.74, that he was fifty years old and if he were able to work at his job for another fifteen years, he would have earned more than $ 1,215,000. The appellate court indicated that based on this evidence, the verdict of $ 1,025,000 was fair and reasonable.

See generally Larson's Workers' Compensation Law, § 110.01, 110.02. 

 
Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation

Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims  Click Here: http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php

 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
 
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

Early Arrival at Workplace Nixes Workers Comp Claim

How Would You Decide:  Ohio Worker’s Arrival at Work Site More than One and One-Half Hours Early Might Nix His Comp Claim for Injuries Arising From Assault

Here’s What Happened

Buck was employed  by Melco as a heavy equipment machine operator.  He was assigned to do excavation at a quarry located approximately seventy miles from his home in Toledo, Ohio.  He customarily left his home early to ensure that he arrived to the site on time for his work shift which began at 7:00 a.m. each workday.   

However,  it was customary for the employees to enter to the quarry at 6:30 a.m., when the foreman arrived, to start the machines, and to be ready to perform promptly at 7:00 a.m.  On the day in question, Buck arrived at 5:30 a.m., parking his truck near the gate where he and others had been instructed.  Between 5:45 a.m. and 6:00 a.m., he exited the vehicle to use a “port-a-john” located adjacent to the designated parking area.  As Buck left the port-a-john to return to his vehicle, he was accosted by three men who beat and robbed him.  Some ten minutes after the assault, other employees arrived and offered assistance.  The foreman arrived at approximately 6:30 a.m. and law enforcement officers were notified. 

Buck was admitted  to a county hospital for treatment of his injuries and subsequently sought workers’ compensation benefits.  Both the district hearing officer and the staff hearing officer for the Industrial Commission allowed the claim, concluding that the injury occurred in the course of and arose out of Buck’s employment.  Melco appealed to the Industrial Commission, which refused to consider further appeal.  Melco then appealed to the County Court of Common Pleas pursuant to Ohio Rev. Code Ann. § 4123.512. The parties entered a stipulation of facts and indicated the only issue on appeal before the trial court was whether Buck’s injury occurred within the course of and arising out of his employment with Melco.

The trial court   granted Buck’s motion for summary judgment, finding that the injury was compensable and it denied Melco’s similar motion.  Melco appealed, contending in relevant part that at the time of the assault Buck was not engaged in an activity required by his employment, that Buck’s actions did not serve any benefit to Melco because the injury occurred more than an hour prior to the scheduled commencement of Buck’s workday.

Here’s What The Court Decided:

In Buck v. Melco, Inc., 2009 Ohio 6872, 2009 Ohio App.   LEXIS 5766 (Dec. 28, 2009), the Court of Appeal of Ohio (Third Appellate Dist.) reversed the entry of summary judgment, finding that there were a number of genuine issues of material fact that remained unanswered in the record.  The court indicated Buck’s early arrival might have placed him outside the course of his employment with Melco.  The appellate court stressed that while the parties had stipulated that it was “customary” for the employees to arrive at least thirty minutes prior to their shift, it was unclear whether some employees were “encouraged” or “expected” by Melco to arrive early and perform preparatory activities, or whether the practice of early arrival was purely voluntary for the convenience or benefit of the employees, as opposed to the convenience or benefit of Melco.  The court added that Buck’s “customary” early arrival at the jobsite, standing alone, was an insufficient basis for a determination, as a matter of law, that Buck was “within the course of” his employment at the time of the assault. 

According to   the court, a more complete resolution of the factual circumstances surrounding the employees’ early arrivals was essential in determining whether the timing of Buck’s arrival at the jobsite was consistent with his contract for hire, logically related to his employment with Melco and, thus, whether Buck was indeed in the course of his employment when his injury occurred.  The court also indicated that similarly, the issue of Buck’s early arrival to the jobsite also raised issues of material fact with regard to the “arising out of” portion of the court’s analysis.   (workersxzcompxzkit)

On the one hand,  ensuring that an employee arrived on time benefited the employer-having an employee readily available when the foreman arrived was important.  On the other hand, a question naturally arose as to whether, under the totality of circumstances and employer expectations, an employee’s presence a full one and a half hours before the formal 7:00 a.m. start time still fell within the “benefit the employer received” language described in the important Ohio case, Lord v. Daugherty, 66 Ohio St. 2d 441, 423 N.E.2d 96 (1981).  Based on the factual issues, summary judgment was not appropriate. See generally Larson’s Workers’ Compensation Law, § 8.01, 8.03, 12.01, 13.04.

Tom Robinson, J.D. is the primary  upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com

. 

 

http://law.lexisnexis.com/practiceareas/Workers-Compensation
Podcast/Webcast: How To Prevent Fraudulent Workers’ Compensation Claims
http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.

©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

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