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Larson's Emerging Issues & Trends 9/23/2009 10:27:17 AM EST Topical Index of LexisNexis Emerging Issues Analysis on Workers’ Compensation Related Issues (Updated 11/12/2009) Topical Index of
LexisNexis Emerging Issues Analysis
Workers' Compensation Related Issues
[Current through November 2009]
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Table of Contents
Accommodation
 Laughlin, Falbo, Levy & Moresi, LLP, on Reasonable Accommodation Under AB 2222: California 's Version of Americans with Disabilities Act. Explores in detail what frequently proves to be the difficult process of reasonable accommodation of disabled employees - especially as it relates to California employers and with particular focus on (1) what constitutes "reasonable accommodation," (2) when it is that employers must consider reasonable accommodation, (3) how to conduct a reasonable accommodation evaluation that will survive legal scrutiny, and (4) how to adopt a reasonable accommodation protocol for the workplace. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
AMA Guides
 Steven D. Feinberg, MD on Complex Regional Pain Syndrome: Reflex Sympathetic Dystrophy & Causalgia. Explainscausation, diagnosis, diagnostic criteria, risk factors, clinical presentation, incidence and duration, evaluation, treatment options, as well as steps for rating CRPS under both the AMA Guides Fifth Edition and Sixth Edition.
Robert G. Rassp on Controversial Issues in AMA Guides and California Workers' Compensation Cases. Discusses five of the most controversial issues in AMA Guides cases: (1) apportionment, duplication, and overlap, and risk factors; (2) spinal injury cases (DRE vs. ROM), (3) muscle strength deficits; (4) complex regional pain syndrome and chronic pain, and (5) sleep disorders.
Jesse N. Rosen on AMA Guides, Spinal Impairment, and First Reported Calif. Workers' Compensation Cases. Examines the four reported California workers' compensation cases that apply Ch. 15 of the AMA Guides, 5th Edition to spinal impairment issues. This article analyzes these first efforts to apply the AMA Guides to spinal injury and WPI issues in California. These cases address the question of whether DRE or ROM should be used, as well as proper application of DRE categories.
Arizona Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Sixth Edition. Thomas A. Robinson analyzes noteworthy cases from Arizona that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Arkansas Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Fourth Edition. Thomas A. Robinson analyzes noteworthy cases from Arkansas that interpret the AMA Guides to the Evaluation of Permanent Impairment.
California Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment - Fifth Edition. Thomas A. Robinson analyzes noteworthy cases from California that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Colorado Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Third Edition. Thomas A. Robinson analyzes noteworthy cases from Colorado that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Iowa Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Fifth Edition. Thomas A. Robinson analyzes noteworthy cases from Iowa that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Kentucky Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Fifth Edition. Thomas A. Robinson analyzes noteworthy cases from Kentucky that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Louisiana Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Sixth Edition. Thomas A. Robinson analyzes noteworthy cases from Louisiana that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Tennessee Noteworthy Cases Interpreting the AMA Guides to the Evaluation of Permanent Impairment – Sixth Edition. Thomas A. Robinson analyzes noteworthy cases from Tennessee that interpret the AMA Guides to the Evaluation of Permanent Impairment.
Apportionment
Melissa C. Brown on Discrimination Due to Apportionment to Age and Gender-Related Conditions: Vaira v. Workers' Comp. App. Bd. Analyzes the unpublished California Court of Appeal decision in Vaira v. Workers' Comp. App. Bd. (2007) 72 Cal. Comp. Cas. 1586, which held that any apportionment of a workers' compensation award to age or gender, per se, is a violation of California's anti-discrimination law as set forth in Cal. Gov. Code § 11135.
David Kizer on California Workers' Compensation Apportionment After SB 899. Discusses how physicians must understand medical apportionment and should have more than a passing familiarity with legal apportionment since a full understanding of the area will help them understand why attorneys are asking certain questions at the physician's deposition. (Copyrighted by David Kizer and Elliott-Lopez Publications, Inc.)
Dr. Claude S. Munday on Apportionment Issues in Psychiatric Cases and California Workers' Compensation. Focuses on the key tenets in Escobedo v. Marshalls, CNA Insurance Co., 70 Cal. Comp. Cases 604, WCAB en banc, April 19, 2005. and how they may apply to psychiatric or Amental cases. (Copyrighted by Claude S. Munday and California Society of Industrial Medicine & Surgery.)
Merle C. Rabine on Recent California WCAB Panel Decisions: Sanjoro v. Motion Picture and Television Fund and Sallay v. Macy's West. Examines recent panel decisions of Sanjoro v. Motion Picture and Television Fund, 2007 Cal. Wrk. Comp. P.D. LEXIS 34, and Sallay v. Macy's West, 2007 Cal. Wrk. Comp. P.D. LEXIS 16, which address the issue of apportionment to factors of disability that were also factors of causation of surgery, where the surgery has corrected or removed the non-industrial factors.
Merle C. Rabine on Recent California WCAB Panel Decisions on Apportionment, Preexisting Impairment, Third Party Settlements, QME Reports: Odle v. Heintschel Plastering, Anzevino v. Subsequent Injuries Fund, Lacentra v. Cal State Hayward , and Karas v. Los Rios Community College District. Examines Odle v. Heintschel Plastering, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 226, Anzevino v. Subsequent Injuries Fund 2008 Cal. Wrk. Comp. P.D. LEXIS 2, Lacentra v. Cal State Hayward 2008 Cal. Wrk. Comp. P.D. LEXIS 9, and Karas v. Los Rios Community College District 2008 Cal. Wrk. Comp. P.D. LEXIS 8, involving LeBoeuf and apportionment; proving preexisting impairment to testimony alone; "reimbursement" and "credit" in third-party settlements; and inadmissibility of untimely QME reports, respectively.
Arising Out Of and in the Course of Employment
Thomas A. Robinson onRecent Workers' Compensation Cases: Supervisor's Strong Encouragement Related to Continuing Education Course Found Sufficient to Bring Event Within Employment for Purposes of Workers' Compensation. Includes discussion of Murphy v. Mt. Sinai Hosp., 37 A.D.3d 919, 829 N.Y.S.2d 728 (2007), in which a New York appellate court sustained an award of disability benefits to a nurse practitioner who suffered multiple injuries in a traffic accident while attending a continuing education conference, as well as court decisions in other jurisdictions involving separate topics.
Thomas A. Robinson on Work Injury at Employer-Sponsored Dance Contest: Hizey v. MCI. Examines Hizey v. MCI, 2008 Kan. App. LEXIS 69 (April 25, 2008), in which the Kansas appellate court, affirming a decision of the state's Workers' Compensation Board, agreed with the employee that her injuries arose out of and in the course of the employment in spite of the fact that her presence at a dance contest on the employer's premises was not required and that dancing was not a normal part of her work duties.
Thomas A. Robinson on Workers' Compensation and Telecommuting: Wait v. Travelers Indemnity Co. Analyzes a recent case of first impression from Tennessee, Wait v. Travelers Indemnity Co., 2007 Tenn. LEXIS 1033 (November 16, 2007), in which a home-based employee who was attacked and severely beaten by an intruder was denied compensation on the basis that her injuries did not arise out of her employment.
Attorney's Fees
Robert G. Rassp and James Ponzio on Noteworthy California WCAB Decisions Denied Judicial Review. Examines four recent "writ denied" cases dealing with medical treatment in the form of two-level arthroplasty disc surgery (see Glagola Construction Company v. WCAB (2007) 72 Cal. Comp. Cas. 1016), attorney's fees in a situation where a compromise and release was entered into with an unrepresented applicant (see Monument Car Parts v. WCAB (Teach) (2007) 72 Cal. Comp. Cas. 1021), an applicant's blood-borne methicillin-resistant staphylococcus aureus (MRSA), which was found to be a compensable consequence of his left shoulder injury (see Ralphs Grocery Company v. WCAB (Romano) (2007) 72 Cal. Comp. Cas. 1028), and a recent review of case law that covers the criteria for eligibility for Subsequent Injuries Benefits Trust Fund benefits (see Rea v. WCAB (Rasmussen) (2007) 72 Cal. Comp. Cas. 1035).
Awards
Merle C. Rabine on Recent California WCAB Panel Decisions on Stipulations, Commutation of Award, and Commercial Traveler: Garcia v. Santa Clara Warehouse, Myers v. City of Salinas, O'Hagan v. Los Angeles Unified School District , and Esposito v. Northwest Airlines, Inc. Examines a psychiatric injury case, in which the employer was bound by trial stipulation that the injury was industrial, despite the claim that applicant worked for less than six months (see Garcia v. Santa Clara Warehouse, 2007 Cal. Wrk. Comp. P.D. LEXIS 192); a case in which the employer was bound by trial stipulation that the "duty belt" presumption applied to applicant's low back injury, despite the claim that applicant used a shoulder holster, not duty belt (see Myers v. City of Salinas 2008 Cal. Wrk. Comp. P.D. LEXIS 13); a case in which commutation of applicant's 100% award to enable her to buy a rental property was held to be in her best interest (see O'Hagan v. Los Angeles Unified School District 2007 Cal. Wrk. Comp. P.D. LEXIS 205); and a case in which the panel found no exception to the "commercial traveler rule" for "kind of dumb" travelers, such as when the employee slipped and fell from a hotel balcony while smoking (see Esposito v. Northwest Airlines, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 217).
Vernon Sumwalt on Enforceability of North Carolina Deputy Commissioner Opinions and Awards During Appeal to Full Commission: Roberts v. Dixie News, Inc. Analyzes Roberts v. Dixie News, Inc., 658 S.E.2d 684 (2008), 2008 N.C. App. LEXIS 654, a case of first impression in which the North Carolina Court of Appeals held that a decision by a deputy commissioner is enforceable during an appeal, even though it is appealed and later reversed by the Full Commission.
Bunkhouse Rule
Thomas A. Robinson on Workers' Compensation Bunkhouse Rule: Vaught v. State of Calif. Analyzes Vaught v. State of California, 157 Cal.App.4th 1538, 2007 Cal. App. Div. LEXIS 13242 (December 18, 2007), in which a state appellate court faced what is sometimes referred to as an "upside-down" bunkhouse rule case-- case in which it wasn't the injured worker who argued that the rule applied, but rather, the employer argued that the rule barred the worker and the worker's spouse's civil action against it.
Civil Actions
Judge David M. Gersten on Asserting Intentional Tort Claims Against an Employer in Florida . Examines Jones v. Martin Electronics, Inc., 932 So. 2d 1100 (Fla. 2006), in which the Florida Supreme Court held that an injured employee who receives workers' compensation benefits without fully pursuing a compensation claim is not barred by workers' compensation immunity from later suing his or her employer for an intentional tort.
Thomas A. Robinson on Alleged Negligent First-Aid Treatment of Heart Attack Victim: Adee v. Russell Stover Candies, Inc. Analyzes Adee v. Russell Stover Candies, Inc., 2008 Kan. App. LEXIS 110 (July 3, 2008) , in which the court affirmed a decision of the state's Workers' Compensation Board that had denied death benefits to the surviving spouse of a worker who sustained an admittedly non-work-related fatal heart attack, but who claimed that the employer's negligent medical treatment following his wife's attack caused her to suffer "a loss of chance of survivability" and, therefore, should have been compensated.
Thomas A. Robinson on Company Doctor Exception to Exclusivity. Examines McLeod v. Blase, 2008 Ga. App. LEXIS 313 (March 18, 2008), in which a state appellate court was called upon to determine if Georgia's rule allowing medical malpractice suits against company doctors could be expanded to allow a similar malpractice action by a professional basketball player against a professional athletic trainer employed by the same National Basketball Association team.
Thomas A. Robinson on New York Jury Rejects Tort Claim Involving Rectal Exam of Injured Worker: Persaud v. Presbyterian Hospital . Examines Persaud v. Presbyterian Hospital, Index No. 106011/2004 New York Civil Supreme Court, April 21, 2008), where a New York jury returned a take-nothing verdict in a tort claim filed by a construction worker against a hospital, wherein the worker alleged that, in treating his work-related injuries, hospital emergency room physicians performed a rectal examination on the plaintiff without his consent, causing mental injury and an inability to return to work.
Thomas A. Robinson on Recent Medical Malpractice Cases Relating to Workers' Compensation Claims: Lowe v. Hernandez and Florida Dept. of Corrections v. Abril. Examines two decisions that offer an interesting twist on medical malpractice claims in that the claimed injury in each case was not caused by any form of improper medical treatment, but rather by negligent or careless handling of paperwork associated with the worker's condition (see Lowe v. Hernandez, 2007 Tex.App. LEXIS 4507 (Tex. Ct. App. June 7, 2007), and Florida Dept. of Corrections v. Abril, 2007 Fla. LEXIS 1902 (Oct. 18, 2007)).
Thomas A. Robinson on Texas Premises Owners Immunity From Tort Actions Filed by Injured Employees of Subcontractors. Analyzes Entergy Gulf States, Inc. v. Summers, 2007 Tex. LEXIS 799, 50 Tex. Sup. J. 1140 (August 31, 2007), reh'g granted, 2008 Tex. LEXIS 301 (April 4, 2008) and the Texas statute that affords immunity in some circumstances to general contractors, surveys the applicable rules within other jurisdictions that have considered the issue, and observes that it is up to the Texas legislature to clarify its intentions on the issue.
Thomas A. Robinson on Workers' Compensation Bunkhouse Rule: Vaught v. State of Calif. Analyzes Vaught v. State of California, 157 Cal.App.4th 1538, 2007 Cal. App. Div. LEXIS 13242 (December 18, 2007), in which a state appellate court faced what is sometimes referred to as an "upside-down" bunkhouse rule case-- case in which it wasn't the injured worker who argued that the rule applied, but rather, the employer argued that the rule barred the worker and the worker's spouse's civil action against it.
Sonnenschein Nath & Rosenthal, LLP on Bad Faith & Summary Judgment in Iowa , 2008 Emerging Issues 308. Includes discussion of Zimmer v. Travelers Insurance Co., 521 F. Supp. 2d 910 (S.D. Iowa 2007), in which the court held that the existence of competing inferences from the evidence permitted the jury to find that there was no objectively reasonable basis to deny the claim.
Civil Union
Thomas A. Robinson on Death Benefits for Partners in Civil Union : Langan v. State Farm. Analyzes a case of first impression, Matter of Langan v. State Farm Fire & Casualty, 2007 N.Y. App. Div. LEXIS 13242 (December 27, 2007), in which a New York a state appellate court was faced with a highly charged issue: does the surviving member or partner of a state sanctioned civil union have standing as "legal spouse" of the deceased employee so as to entitle him/her to death benefits under the New York Workers' Compensation Act?
Commercial Traveler
Merle C. Rabine on Recent California WCAB Panel Decisions on Stipulations, Commutation of Award, and Commercial Traveler: Garcia v. Santa Clara Warehouse, Myers v. City of Salinas, O'Hagan v. Los Angeles Unified School District , and Esposito v. Northwest Airlines, Inc. Examines a psychiatric injury case, in which the employer was bound by trial stipulation that the injury was industrial, despite the claim that applicant worked for less than six months (see Garcia v. Santa Clara Warehouse, 2007 Cal. Wrk. Comp. P.D. LEXIS 192); a case in which the employer was bound by trial stipulation that the "duty belt" presumption applied to applicant's low back injury, despite the claim that applicant used a shoulder holster, not duty belt (see Myers v. City of Salinas 2008 Cal. Wrk. Comp. P.D. LEXIS 13); a case in which commutation of applicant's 100% award to enable her to buy a rental property was held to be in her best interest (see O'Hagan v. Los Angeles Unified School District 2007 Cal. Wrk. Comp. P.D. LEXIS 205); and a case in which the panel found no exception to the "commercial traveler rule" for "kind of dumb" travelers, such as when the employee slipped and fell from a hotel balcony while smoking (see Esposito v. Northwest Airlines, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 217).
Commutation
Merle C. Rabine on Recent California WCAB Panel Decisions on Stipulations, Commutation of Award, and Commercial Traveler: Garcia v. Santa Clara Warehouse, Myers v. City of Salinas, O'Hagan v. Los Angeles Unified School District , and Esposito v. Northwest Airlines, Inc. Examines a psychiatric injury case, in which the employer was bound by trial stipulation that the injury was industrial, despite the claim that applicant worked for less than six months (see Garcia v. Santa Clara Warehouse, 2007 Cal. Wrk. Comp. P.D. LEXIS 192); a case in which the employer was bound by trial stipulation that the "duty belt" presumption applied to applicant's low back injury, despite the claim that applicant used a shoulder holster, not duty belt (see Myers v. City of Salinas 2008 Cal. Wrk. Comp. P.D. LEXIS 13); a case in which commutation of applicant's 100% award to enable her to buy a rental property was held to be in her best interest (see O'Hagan v. Los Angeles Unified School District 2007 Cal. Wrk. Comp. P.D. LEXIS 205); and a case in which the panel found no exception to the "commercial traveler rule" for "kind of dumb" travelers, such as when the employee slipped and fell from a hotel balcony while smoking (see Esposito v. Northwest Airlines, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 217).
Paul L. Salafiaon New Hampshire Exclusion From Compulsory Workers' Compensation. Discusses HB 471 enacted in 2007 that swept away the exclusion in the New Hampshire Workers' Compensation Act that any corporation or limited liability company may elect to exclude up to three executive officers or members from the compulsive coverage requirements under this chapter, the repeal of HB 471 in 2008, and the pending legislation on this hotly contested issue.
Cumulative Trauma
David Kizer on California Workers' Compensation Cumulative Trauma. Discusses how physicians must often address the long term harmful effects of work exposure to the psyche, the back and internal organs and must do so while simultaneously explaining (to the satisfaction of a workers' compensation judge) why some elements of the exposure contributed more to the overall snapshot of a worker's disability while others did not. (Copyrighted by David Kizer and Elliott-Lopez Publications, Inc.)
Death Benefits
Thomas A. Robinson on Death Benefits for Partners in Civil Union : Langan v. State Farm. Analyzes a case of first impression, Matter of Langan v. State Farm Fire & Casualty, 2007 N.Y. App. Div. LEXIS 13242 (December 27, 2007), in which a New York a state appellate court was faced with a highly charged issue: does the surviving member or partner of a state sanctioned civil union have standing as "legal spouse" of the deceased employee so as to entitle him/her to death benefits under the New York Workers' Compensation Act?
California's 2009 E-Discovery Laws: Text and Analysis. Examines California's new Electronic Discovery Act, effective June 29, 2009, that makes comprehensive changes in California law relating to e-discovery, with analysis by two authors who helped write the Act.
Laughlin, Falbo, Levy & Moresi, LLP, on California Subpoena Power: Protecting the Claim File. Addresses various discovery issues relevant to everyday workers' compensation claims handling, including what to do if you receive a subpoena, ways to object to the subpoena, documents in a claims file that are protected from disclosure, documents that fall within the scope of a legally recognized "privilege," the work-product doctrine, and internal communications. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Laughlin, Falbo, Levy & Moresi, LLP, on California Subpoena Power: The Tools for a Better Defense. Addresses various discovery issues relevant to everyday workers' compensation claims handling, including the purpose of discovery, seeking the truth in medical evidence, and the Allison case and its progeny. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Laughlin,Falbo, Levy & Moresi, LLP, on Protecting Privileged Information in the Claims File. Examines the tool most often used by attorneys to obtain claims information -- the deposition subpoena -- and ways to respond to it without damaging the compensation case and the subrogation efforts related thereto. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Discrimination
Professor Seth J. Chandler on Title I of the Genetic Information Nondiscrimination Act of 2008. Professor Seth Chandler untangles the complex path by which the Genetic Information Nondiscrimination Act of 2008, through interaction with existing provisions of ERISA, the Public Health Service Act, the Internal Revenue Code and the Social Security Act, alters the law of insurance underwriting.
Dorinda D. DeScherer on the Rights and Obligations of Returning Service Members. Provides a detailed look at the employment and tax rights and obligations of returning service members.
Kerri N. Harper on California Supreme Court's Decision on Disability Discrimination: Green v. State of California. Discusses Green v. California, dealing with the issue as to who must prove in disability discrimination cases that the employee is qualified to perform the essential functions of the job.
N. Pete Lareau on Lilly Ledbetter Fair Pay Act. Summarizes the facts and holding of the Supreme Court's Ledbetter decision, examines the new law, what it is intended to accomplish, and some practical ramifications that may arise from its enactment.
Jonathan R. Mook on ADA and Hearing Impaired Workers: Bates v. United Parcel Services, Inc. Examines the 9th Circuit decision in Bates v. United Parcel Services, Inc. , a major decision reversing a ruling of the courts panel that UPS had violated the Americans with Disabilities Act (ADA) by excluding hearing-impaired individuals from package-car driver positions.
Jonathan Mook on How to Evaluate ADA Claims: ADA Checklist. Provides a systematic approach to evaluating potential claims with an ADA Checklist that helps practitioners identify critical issues for ADA cases.
Jonathan Mook on Individual Liability Under Disability Discrimination Laws. Explains that individuals may not be liable for ADA disability discrimination or retaliation, but cautions that individual liability still may arise under state antidiscrimination laws.
Jonathan R. Mook on Reassignment as an ADA Reasonable Accommodation. Examines the Eighth Circuit case of Huber v. Wal-Mart Stores, as well as the relevant statutory and case law background, as to whether the Americans with Disabilities Act requires an employer to reassign a disabled employee to a vacant equivalent position for which the employee is qualified, or merely requires the employer to allow the employee to apply and compete with other applicants for a vacant position.
Jonathan R. Mook on Telecommuting as an ADA Reasonable Accommodation. Explains that the courts generally have not viewed telecommuting as a reasonable accommodation required by either the Americans with Disabilities Actor the 1973 Rehabilitation Act, but the tide may be shifting.
Dudley C. Rochelle on Religious Discrimination and Religious Accommodations. Addresses a number of accommodation scenarios, taken from recent court rulings, which illustrate this momentum towards more claims of religious accommodation in workplace dress and grooming standards.
Jerome Schreibstein on FEHA and California Workers' Compensation. Discusses Discusses three basic issues that must be addressed by a workers' compensation attorney involved, directly or indirectly, in the prosecution of, or defense against, a FEHA claim: (1) Does FEHA cover the type of injury alleged by the plaintiff? (2) Is the FEHA action prohibited by the exclusive remedy provisions of the Workers' Compensation Act? (3) What possible effects might workers' compensation proceedings and an FEHA action have on each other?
Danyelle Wright on Genetic Information Discrimination Act of 2008 (GINA). Explains the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment and insurance discrimination on the basis of genetic information, and examines the expected real-world impact of GINA.
Dual Person
Thomas A. Robinson on Workers' Compensation Dual Person Exception to Exclusivity. Analyzes an unreported case, Peterson v. Industrial Door Co., Inc., 2008 Minn. App. Unpub. LEXIS 46 (January 15, 2008), in which the appellate court affirmed a trial court's denial of summary judgment in favor of an employer on the basis that there was an issue of fact as to whether the employer had assumed the potential liabilities of a predecessor firm that had manufactured the machine that allegedly caused the employee's injuries.
Earnings
Merle C. Rabine on Recent California WCAB Panel Decisions: Magana v. Essey International, Inc., Pfeffer v. Fisher Construction, and Jimenez v. Galaxy Shade Systems. Examines Magana v. Essey International, 2007 Cal. Wrk. Comp. P.D. LEXIS 26 on expert DFEC testimony, and Pfeffer v. Fisher Construction, 2007 Cal. Wrk. Comp. P.D. LEXIS 10, and Jimenez v. Galaxy Shade Systems, 2007 Cal. Wrk. Comp. P.D. LEXIS 11, on outpatient surgery centers' burden of proof regarding the reasonableness of their charges.
Thomas A. Robinson onRecent Workers' Compensation Cases: Earnings From Injured Worker's Illegal Drug Trade May Be Considered in Determining Extent of Disability. Includes discussion of State ex rel. Lynch v. Industrial Comm'n, 171 Ohio App. 3d 453, 2007 Ohio 292, 871 N.E.2d 618, in which the appellate court determined that it was appropriate to reduce an injured worker's permanent disability benefits by an estimate of the income the worker earned in his illegal drug trade, as well as court decisions in other jurisdictions involving separate topics.
Employment Status
Thomas A. Robinson on Illegal Aliens and Workers' Compensation: Curiel v. Environmental Mgmt Svcs. Analyzes Curiel v. Environmental Management Services, 2007 S.C. LEXIS 421 (October 30, 2007), in which the Supreme Court of South Carolina ruled that an injured worker was entitled to benefits in spite of his "illegal" status, and that the fact that his employment was procured through fraudulent means did not disqualify him from benefits under South Carolina law.
Thomas A. Robinson onRecent Workers' Compensation Cases: Migrant Worker's Acts Related to Securing of Necessary Work Visa Found Insufficiently Related to Employment to Support Claim. Includes discussion of De la Rosa Herrera v. Martin, 49 Va. App. 469, 642 S.E.2d 309 (2007), in which the court held that a migrant worker's acts related to securing a necessary work visa were not sufficiently related to employment to support his widow's claim for benefits, as well as court decisions in other jurisdictions involving separate topics.
Paul L. Salafiaon New Hampshire Statutory Changes Regarding Employees v. Independent Contractors. Examines the impact of statutory changes that will govern whether an employee is in fact an employee, or an independent contractor, for the purposes of workers' compensation benefits.
Evidence
Merle C. Rabine on Recent California WCAB Panel Decisions on Apportionment, Preexisting Impairment, Third Party Settlements, QME Reports: Odle v. Heintschel Plastering, Anzevino v. Subsequent Injuries Fund, Lacentra v. Cal State Hayward , and Karas v. Los Rios Community College District. Examines Odle v. Heintschel Plastering, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 226, Anzevino v. Subsequent Injuries Fund 2008 Cal. Wrk. Comp. P.D. LEXIS 2, Lacentra v. Cal State Hayward 2008 Cal. Wrk. Comp. P.D. LEXIS 9, and Karas v. Los Rios Community College District 2008 Cal. Wrk. Comp. P.D. LEXIS 8, involving LeBoeuf and apportionment; proving preexisting impairment to testimony alone; "reimbursement" and "credit" in third-party settlements; and inadmissibility of untimely QME reports, respectively.
Exclusive Remedy
Laughlin, Falbo, Levy & Moresi, LLP, on California's Exclusive Remedy Rule: Conditions and Exceptions. Discusses the basics of the exclusive remedy rule and identifies common situations in which the exclusive remedy rule can be successfully asserted or avoided. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Thomas A. Robinson on Workers' Compensation and Horseplay: Hilton v. Martin. Analyzes Hilton v. Martin, et al., 275 Va. 176, 654 S.E.2d 572, 2008 Va. LEXIS 18 (January 11, 2008), in which the Supreme Court of Virginia, utilizing an assault theory of recovery and ignoring horseplay altogether, reversed an earlier dismissal of the case by the trial court on exclusivity grounds.
Thomas A. Robinson on Workers' Compensation Dual Person Exception to Exclusivity. Analyzes an unreported case, Peterson v. Industrial Door Co., Inc., 2008 Minn. App. Unpub. LEXIS 46 (January 15, 2008), in which the appellate court affirmed a trial court's denial of summary judgment in favor of an employer on the basis that there was an issue of fact as to whether the employer had assumed the potential liabilities of a predecessor firm that had manufactured the machine that allegedly caused the employee's injuries.
Kent Sinclair on Hilton v. Martin. Analyzes Hilton v. Martin, 275 Va. 176, 654 S.E.2d 571, 2008 Va. LEXIS 18 (2008), in which the Supreme Court of Virginia revisited one of the classic issues in civil tort litigation in Virginia - the question of whether the "exclusive remedy" provision of the Virginia Workers' Compensation Act precludes a private civil action for damages.
FEHA (California Fair Employment and Housing Act)
Jerome Schreibstein on FEHA and California Workers' Compensation. Discusses three basic issues that must be addressed by a workers' compensation attorney involved, directly or indirectly, in the prosecution of, or defense against, a FEHA claim: (1) Does FEHA cover the type of injury alleged by the plaintiff? (2) Is the FEHA action prohibited by the exclusive remedy provisions of the Workers' Compensation Act? (3) What possible effects might workers' compensation proceedings and an FEHA action have on each other?
Fraud
Thomas A. Robinson on Workers' Compensation Employee Fraud (False Statements). Analyzes a case of first impression, Obregon v. Industrial Comm'n of Ariz., 2008 Ariz. App. LEXIS 33 (February 28, 2008), in which the court held that the forfeiture imposed by A.R.S. § 23-1028(A) for making false statements to obtain workers' compensation benefits applies only to those benefits obtained by the false statements; the forfeiture does not apply to any remaining benefits to which the worker might be entitled.
Horseplay
Thomas A. Robinson onRecent Workers' Compensation Cases: Delaware Adopts "Larson" Test for Horseplay Cases. Includes discussion of Grabowski v. Mangler, 2007 Del. LEXIS 301 (Del. July 9, 2007), an exclusivity issue case, in which the Delaware Supreme Court expressly adopted the "Larson" four-part test for horseplay cases, as well as court decisions in other jurisdictions involving separate topics.
Thomas A. Robinson on Workers' Compensation and Horseplay: Hilton v. Martin. Analyzes Hilton v. Martin, et al., 275 Va. 176, 654 S.E.2d 572, 2008 Va. LEXIS 18 (January 11, 2008), in which the Supreme Court of Virginia, utilizing an assault theory of recovery and ignoring horseplay altogether, reversed an earlier dismissal of the case by the trial court on exclusivity grounds.
Kent Sinclair on Hilton v. Martin. Analyzes Hilton v. Martin, 275 Va. 176, 654 S.E.2d 571, 2008 Va. LEXIS 18 (2008), in which the Supreme Court of Virginia revisited one of the classic issues in civil tort litigation in Virginia - the question of whether the "exclusive remedy" provision of the Virginia Workers' Compensation Act precludes a private civil action for damages.
Illegal Aliens
Ann Allott on Arizona and Illinois Laws (and Lawsuits) on Undocumented Workers. Discusses some of the many recent state laws on hiring undocumented workers and the lawsuits against those statutes.
Ann Allott on Grassley Amendment Allowing E-Verify for Existing Employees. Analyzes E-Verify, an Internet-based system operated by the Department of Homeland Services in cooperation with the Social Security Administration, which allows an employer to electronically verify employment eligibility of new hires, thus deterring the employment of unauthorized workers.
Ann Allott on Immigration and Customs Enforcement Raids and Employer Sanctions. Explains the many types of "technical or procedural" and substantive violations of the requirements for filling out I-9 Forms (employment eligibility verification forms) and the possible penalties for those violations.
Harry Asatrian and Ainsley Harrell on To E-Verify or not to E-Verify. Discusses the implementation of the Federal Acquisition Regulation provision, FAR 52.222-54, which makes E-Verify mandatory for federal contractors, and reviews the advantages and disadvantages of E-Verify.
Thomas A. Robinson on Illegal Aliens and Workers' Compensation: Curiel v. Environmental Mgmt Svcs. Analyzes Curiel v. Environmental Management Services, 2007 S.C. LEXIS 421 (October 30, 2007), in which the Supreme Court of South Carolina ruled that an injured worker was entitled to benefits in spite of his "illegal" status, and that the fact that his employment was procured through fraudulent means did not disqualify him from benefits under South Carolina law.
Jurisdiction
Stephen C. Embry on Crossing the Jensen Line and Coppola v. Logistec Connecticut, Inc. Examines Coppola v. Logistec Connecticut, Inc. (2007) 283 Conn. 1, 925 A.2d 257, in which the Connecticut Supreme Court reversed the Connecticut Workers' Compensation Commission and ruled that the state has concurrent jurisdiction with the federal government over certain claims involving injuries incurred on navigable waters.
Peter M. Sweeny on Wainwright v. Newport News . Discusses how practitioners in the Tidewater region often file a claim with the Virginia Workers' Compensation Commission while the injured worker is currently receiving benefits under the Longshore Act, and how this common practice was challenged in Wainwright v. Newport News Shipbuilding and Dry Dock Co., 50 Va. App. 421, 650 S.E.2d 566 (2007).
Legislative Survey
Richard C. Kissiah on 2008 Significant Changes in Georgia Workers' Compensation Law. Examines significant changes that have occurred in the workers' compensation law in 2008 through legislation passed by the Georgia General Assembly and signed into law by the Governor, through the revision by the State Board of Workers' Compensation of its Rules & Regulations, and through decisions by the Supreme Court of Georgia and the Court of Appeals.
Richard C. Kissiah on Significant 2007-2008 Changes in Georgia Workers' Compensation Law. Examines significant changes that have occurred in the workers' compensation law in 2007 through legislation passed by the Georgia General Assembly and signed into law by the Governor, through the revision by the State Board of Workers' Compensation of its Rules & Regulations, and through decisions by the Supreme Court of Georgia and the Court of Appeals.
William Koepcke on 2007 State-by-State Survey of Key Workers' Compensation Legislative Changes, Highlights and comments on key workers' compensation legislative changes in the various states, including hot topics regarding first responder legislation, return to work issues, professional employer organizations licensing, medical fee schedules and RBRVS rates, independent contractors in the construction industry, penalties, evidence based medicine, and regulation of silent PPO's (preferred provider organizations).
Thomas A. Robinson on 2008 Mid-Year State-by-State Survey of Key Workers' Compensation Legislative Changes, Highlights significant workers' compensation legislation in various states, the hottest topics of which relate to abuses and perceived abuses in the misclassification of employees as independent contractors, the delay in the use of the Sixth Edition of the Guides to the Evaluation of Permanent Impairment (the AMA Guides), as well as other work-related legislation, including the Florida Guns in the Workplace Act.
Thomas A. Robinson on 2008 Year-End State-by-State Survey of Key Workers' Compensation Legislative Changes (June - November 2008), Highlights significant workers' compensation legislation in various states, the hottest topics of which relate to abuses and perceived abuses in the misclassification of employees as independent contractors, the delay in the use of the Sixth Edition of the Guides to the Evaluation of Permanent Impairment (the AMA Guides), as well as other work-related legislation, including the Florida Guns in the Workplace Act.
Liens
Laughlin, Falbo, Levy & Moresi, LLP, on a Mean Lien Fighting Machine and California Workers' Compensation. Discusses how with proper preparation and organization, the defense can do far better than a run-of-the-mill settlement for a large portion of a lien value and can substantially reduce the value of a lien. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Joseph B. McDonnell on Gallagher v. Lenart. Examines the Illinois Supreme Court's decision in Gallagher v. Lenart, 226 Ill. 2d 208, 2007 LEXIS 1150 (Ill. 2007), that a employer's waiver of its lien against a third party recovery must be clear and unmistakable from the language used in the settlement contract and may not be inferred or implied.
Thomas A. Robinson on Ability of Claimant to Assign Disability Benefits to Third Party: Cross v. Capital Transaction Group, Inc. Analyzes Cross v. Capital Transaction Group, Inc.,, reviews the rule in effect in most states that bars virtually all attempts to sell or otherwise transfer the worker's rights in his or her workers' compensation proceeds, and observes that, except for specific types of debts, workers' compensation benefits are immune from the claims of creditors, even when those rights are transferred in an arms-length transaction by the workers' compensation claimant.
Medical
Francis P. Alvarez & Joseph J. Lazzarotti on Workplace Wellness Programs Standards. Highlight three areas under the HIPAA nondiscrimination regulations that are particularly important to the design and administration of covered wellness programs and provide practical insight to employers about how to comply with these standards.
Bourque, Callier, and Lovitch on Issues and Trends in the Regulation of Genetic Testing. Discusses the degree and type of government oversight, by Federal and state authorities, of companies that are engaged in the genetic testing industry.
Stuart D. Colburn on Texas Health Facility Fees: Rules 134.403 and 134.404. Examines the Texas Division of Workers' Compensation amendments of the Hospital Inpatient Fee Guidelines and creation of new Hospital Outpatient Fee Guidelines, both of which significantly increases reimbursement rates for hospitals; allow specified carve-outs for implantables, and replace the stop/loss methodology with the CMS outlier methodology. (Copyrighted by Downs Stanford)
Stuart D. Colburn on Texas Medical Reimbursement Policies and Guidelines. Analyzes the Texas Division of Workers' Compensation's adoption of new reimbursement rules and procedures set forth in Rules 134.1, 134.2, 134.203, and 134.204, effective March 1, 2008. (Copyrighted by Downs Stanford.)
Stephen C. Embry on Connecticut Medical Fee Schedule and the Medicare Resource Based Relative Value Scale. Examines how Connecticut recently joined a growing list of states that use Medicare Resource Based Relative Value Scales (RBRVS) for setting medical fees in workers' compensation cases.
Steven D. Feinberg, MD on Complex Regional Pain Syndrome: Reflex Sympathetic Dystrophy & Causalgia. Explainscausation, diagnosis, diagnostic criteria, risk factors, clinical presentation, incidence and duration, evaluation, treatment options, as well as steps for rating CRPS under both the AMA Guides Fifth Edition and Sixth Edition.
Judge David M. Gersten on Right of Workers' Compensation Claimants to Leave Florida and Obtain Treatment From Foreign Physician. Discusses AMS Staff Leasing, Inc. v. Arreola, 976 So. 2d 612 (Fla. 1st DCA 2008), and the right of workers' compensation claimants to leave Florida and obtain treatment from a foreign physician.
Denis Paul Juge on Preferred Provider Organization Litigation in Louisiana Subject Matter Jurisdiction: "How to Fit a Round Peg into a Square Hole". Discusses the evolving jurisprudence in Louisiana on the issue of which court (state district court or workers' compensation court (OWC)) has subject matter jurisdiction to adjudicate the provider claims and the ancillary claims of other parties (third party claims of employers against the PPO, and the PPO's right to intervene in the provider/employer dispute).
Denis Paul Juge on Status of PPO Litigation in Louisiana : What's The Problem? Examines the impact of the Preferred Provider Organization (PPO) statute, La. Rev. Stat. §§ 40:2201-2210, on workers' compensation patients and their healthcare providers and analyzes the status of this litigation.
David Bryan Leonard on Calif. Doctrine of Fair Procedure and Admission to Medical Networks in Workers' Comp Context: Palm Medical Group v. SCIF. Analyzes Palm Medical Group, Inc. v. State Compensation Insurance Fund, 161 Cal. App. 4th 206 (Cal. App. 1st Dist. 2008), in which the California Court of Appeal for the First Appellate District ruled that the State Compensation Insurance Fund (SCIF) owed a plaintiff a duty of fair procedure in acting on its application to a preferred provider network (PPN).
David Bryan Leonard on Silent PPOs and California Workers' Compensation. Discusses the tempest that appears to be brewing in the California workers' compensation system regarding so-called "Silent PPOs", which are created when a preferred provider organization sells its reduced provider rates to others, such as workers' compensation insurers and self-insured employers without proper disclosure to the medical provider.
Dr. Steven E. Levine on Medical Specialists in Workers' Compensation, California Implications. Examines how medical specialists' willingness to accept workers' compensation patients has been trending downward in a number of states over the past 10 years due to increased regulatory burdens and declines in specialist fees. (Copyrighted by Steven E. Levine.)
Merle C. Rabine on Recent California WCAB Panel Decisions on Sanctions on Reconsideration, Underground Regulations Issued by Medical Unit, and State Disability Payments Not Counted Toward Temporary Disability Cap: Deza v. The Home Depot, Nuno v. Carniceria La Mejor, Schoonover v. First Financial Federal, and Adame v. Automotive Engineered Products. Examines four recent panel decisions: two involving sanctions on reconsideration (see Deza v. The Home Depot 2008 Cal. Wrk. Comp. P.D. LEXIS 228; Nuno v. Carniceria La Mejor 2008 Cal. Wrk. Comp. P.D. LEXIS 253); one involving second QME panels and "underground regulations" (see Schoonover v. First Financial Federal 2008 Cal. Wrk. Comp. P.D. LEXIS 264); and one involving state disability benefits and the 104-week cap on temporary disability indemnity (see Adame v Automotive Engineered Products, Inc. 2008 Cal. Wrk. Comp. LEXIS 217).
Merle C. Rabine on Recent California WCAB Panel Decisions on Spinal Treatment Modalities: Sepeda v. Sepeda Brothers Dairy and Barrera v. State of California. Examines whether controversial and expensive spinal treatments -- artificial disc replacement (see Sepeda v. Sepeda Brothers Dairy, 2007 Cal. Wrk. Comp. P.D. LEXIS 182) and manipulation under anesthesia (see Barrera v. State of California, 2007 Cal. Wrk. Comp. P.D. LEXIS 61) -- are reasonable and necessary to cure or relieve from applicants' industrial injuries.
Robert G. Rassp and James Ponzio on Noteworthy California WCAB Decisions Denied Judicial Review. Examines four recent "writ denied" cases dealing with medical treatment in the form of two-level arthroplasty disc surgery (see Glagola Construction Company v. WCAB (2007) 72 Cal. Comp. Cas. 1016), attorney's fees in a situation where a compromise and release was entered into with an unrepresented applicant (see Monument Car Parts v. WCAB (Teach) (2007) 72 Cal. Comp. Cas. 1021), an applicant's blood-borne methicillin-resistant staphylococcus aureus (MRSA), which was found to be a compensable consequence of his left shoulder injury (see Ralphs Grocery Company v. WCAB (Romano) (2007) 72 Cal. Comp. Cas. 1028), and a recent review of case law that covers the criteria for eligibility for Subsequent Injuries Benefits Trust Fund benefits (see Rea v. WCAB (Rasmussen) (2007) 72 Cal. Comp. Cas. 1035).
Thomas A. Robinson on Carrier Payment for Gastric Bypass Surgery "Associated" With Treatment for Knee Injury: Sprague v. SAIF Corp. Analyzes the case and discusses relevant issues related to the payment of medical expenses only indirectly associated with a compensable injury.
Thomas A. Robinson on Free Choice of Doctor Issues: Meyers v. Wildcat Materials, Inc. Analyzes Meyers v. Wildcat Materials, Inc., 2008 Mo. App. LEXIS 927 (July 9, 2008), which illustrates the competing issues at play with regard to whether an injured employee may choose his or her own doctor and control the treatment processes; here, the court's decision strikes an appropriate and reasonable compromise as it gives deference to the concerns of the injured employee, yet takes seriously the issue of whether the employers rights have been prejudiced.
Thomas A. Robinson onRecent Workers' Compensation Cases: Employer's Choice of Medical Care Provider Does Not Apply to Choice of Pharmacy. Includes discussion of Davis Plumbing Co. v. Burns, 2007 Ala. Civ. App. LEXIS 253 (Ala. Civ. App. April 20, 2007), where the court ruled that while the employer is allowed to choose the physician under Ala. Code § 25-5-77, it may not choose the particular pharmacy from which the claimant will receive medication., as well as court decisions in other jurisdictions involving separate topics.
Thomas A. Robinson onRecent Workers' Compensation Cases: Refusal of Blood Transfusion for Religious Reasons as Grounds for Disqualifying Worker or Worker's Survivors From Workers' Compensation Benefits. Includes discussion of Wilcut v. Innovative Warehousing, 2007 Mo. App. LEXIS 915 (Mo. Ct. App. June 19, 2007), where appellate court was called upon to rule on a host of unusual issues: refusal of blood transfusions on religious grounds, as well as court decisions in other jurisdictions involving separate topics.
VernonSumwalt on the Physician-Patient Privilege in Workers' Compensation Cases. Lays out the basic theory of the physician-patient privilege and provides advice on how to avoid its pitfalls in practice, with discussion of Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), Salaam v. North Carolina Department of Transportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996), and N.C. Gen. Stat. § 97-25.6.
VernonSumwalt on Proving Causation of Work-Related Medical Conditions. Examines Legette v. Scotland Memorial Hospital, 640 S.E.2d 744 (2007), in which the Court of Appeals affirmed the Commission's finding that lifting a patient had caused or aggravated a nurse's lymphedema in her arm, even though conflicting medical testimony indicated that her history of breast cancer placed her at an increased chance of contracting lymphedema as well.
Misclassification
Thomas A. Robinson on Misclassification of Employees as Independent Contractors, 2008 Emerging Issues 227. Examines the issue of whether an employer should be able to subdivide its business, hire out important core elements of its operation to so-called independent contractors and, accordingly, avoid the payment of employment taxes, overtime wages, fringe benefits, unemployment compensation, and workers' compensation medical care and disability benefits, and includes discussion of the sometimes conflicting tests currently utilized by the IRS, the Department of Labor, and the various state jurisdictions, the proposals in the Obama bill [S. 2044], as well as recently enacted (and pending) state legislation.
Misconduct
Thomas A. Robinson on Employee Misconduct and Workers' Compensation: Brackett v. Focus Hope, Inc. Anayzes the case and then discusses the states, and the relevant statutes, in which willful misconduct is a possible defense to a worker’s compensation claim.
Thomas A. Robinson on Employee Misconduct in Workers' Compensation Context: Sisco v. Quicker Recovery. Analyzes Sisco v. Quicker Recovery, 218 Ore. App. 376, 180 P.3d 46 (March 12, 2008), in which the state court of appeals was called on to determine if the injuries sustained by a tow truck driver during a confrontation with police officers who had stopped the driver for speeding were within the course and scope of the driver's employment.
Thomas A. Robinson onRecent Workers' Compensation Cases: Delaware Adopts "Larson" Test for Horseplay Cases. Includes discussion of Grabowski v. Mangler, 2007 Del. LEXIS 301 (Del. July 9, 2007), an exclusivity issue case, in which the Delaware Supreme Court expressly adopted the "Larson" four-part test for horseplay cases, as well as court decisions in other jurisdictions involving separate topics.
Misrepresentations by Employee
Vernon Sumwalt on Misrepresentation in Contract of Employment: Freeman v. Rothrock. Analyzes the court's holding and consequences of Freeman v. Rothrock, 657 S.E.2d 389 (2008), 2008 N.C. App. LEXIS 430, in which a majority of the North Carolina Court of Appeals announced that an employee's misrepresentations in an application for employment rendered the subsequent employment contract-and also the employer-employee relationship-void ab initio, thus providing the employer with an affirmative defense against an otherwise legitimate workers' compensation claim related to the misrepresented medical condition.
Notice of Injury
Merle C. Rabine on Recent California WCAB Panel Decisions: Audiss v. City of Rohnert Park and Dover v. Fresh Start Bakeries, Inc. Examines Audiss v. City of Rohnert Park, 2007 Cal. Wrk. Comp. P.D. LEXIS 9, which involves "the bump" in permanent disability payments set forth in Cal. Labor Code § 4658(d)(2), (3), which is supposed to encourage return to work, and Dover v. Fresh Start Bakeries, Inc., 2006 Cal. Wrk. Comp. P.D. LEXIS 53, which involves "contemporaneous" notices of termination and injury, which do not bar compensation pursuant to Cal. Labor Code § 3600(a)(10).
Permanent Disability
Philip J. Fulton on Ohio Permanent Total Disability: State ex rel. Spohn v. Indus. Comm. Discusses the impact and implications of the Ohio Supreme Court's decision in State ex rel. Spohn v. Indus. Comm., 115 Ohio St. 3d 329, 2007 Ohio 5027, in which the Court reaffirmed that a permanent total disability award may be terminated upon a showing of new and changed circumstances.
James Ponzio on the California Supreme Court Affirming the Fuentes Rule for the Calculation of Permanent Disability Indemnity. Examines from the perspective of a defense attorney the major implications and unanswered questions of the interpretation of Cal. Labor Code §§ 4663, 4664 and Formula A as set forth in Brodie v. Workers' Comp. Appeals Bd., 40 Cal. 4th 1313 (2007).
Merle C. Rabine on California WCAB Overrules Wilkinson: Benson v. Permanente Medical Group. Examines the recent en banc decision Benson v. Permanente Medical Group (2007) 72 Cal. Comp. Cas 1620, in which the WCAB held that the repeal of Cal. Lab. Code § 4750 and enactment of Cal. Lab. Code § 4663 (as amended) and Cal. Lab. Code § 4664 by SB 899, 2004 Cal ALS 34, means that the permanent disabilities caused by successive injuries that become permanent and stationary at the same time may not be combined but must be analyzed separately in almost all cases, thus overruling the Wilkinson doctrine.
Merle C. Rabine on Recent California WCAB Panel Decisions: Audiss v. City of Rohnert Park and Dover v. Fresh Start Bakeries, Inc. Examines Audiss v. City of Rohnert Park, 2007 Cal. Wrk. Comp. P.D. LEXIS 9, which involves "the bump" in permanent disability payments set forth in Cal. Labor Code § 4658(d)(2), (3), which is supposed to encourage return to work, and Dover v. Fresh Start Bakeries, Inc., 2006 Cal. Wrk. Comp. P.D. LEXIS 53, which involves "contemporaneous" notices of termination and injury, which do not bar compensation pursuant to Cal. Labor Code § 3600(a)(10).
Merle C. Rabine on Recent California WCAB Panel Decisions: Kong v. San Francisco and Sanchez v. Sunrise Mushroom. Examines Kong v. San Francisco, 2007 Cal. Wrk. Comp. P.D. LEXIS 22, which involved "overlap" between factors of disability in the 1997 and 2005 Permanent Disability Rating Schedules, and Sanchez v. Sunrise Mushroom, 2007 Cal. Wrk. Comp. P.D. LEXIS 19, which involved unreasonable refusal to submit to surgery under Labor Code § 4056, where the employers failed to sustain their burden of proof of affirmative defenses.
Robert G. Rassp on Affirming Fuentes Rule for Permanent Disability Indemnity Calculation. Examines from the perspective of an applicant's attorney the ramifications of the interpretation in Brodie v. Workers' Comp. Appeals Bd., 40 Cal. 4th 1313 (2007) of Cal. Labor Code § 4663 and Cal. Labor Code § 4664 and Formula A.
Physicians
Stuart D. Colburn on Texas Medical Reimbursement Policies and Guidelines. Analyzes the Texas Division of Workers' Compensation's adoption of new reimbursement rules and procedures set forth in Rules 134.1, 134.2, 134.203, and 134.204, effective March 1, 2008. (Copyrighted by Downs Stanford.)
Stephen C. Embry on Connecticut Medical Fee Schedule and the Medicare Resource Based Relative Value Scale. Examines how Connecticut recently joined a growing list of states that use Medicare Resource Based Relative Value Scales (RBRVS) for setting medical fees in workers' compensation cases.
Denis Paul Juge on Preferred Provider Organization Litigation in Louisiana Subject Matter Jurisdiction: "How to Fit a Round Peg into a Square Hole". Discusses the evolving jurisprudence in Louisiana on the issue of which court (state district court or workers' compensation court (OWC)) has subject matter jurisdiction to adjudicate the provider claims and the ancillary claims of other parties (third party claims of employers against the PPO, and the PPO's right to intervene in the provider/employer dispute).
Denis Paul Juge on Status of PPO Litigation in Louisiana : What's The Problem? Examines the impact of the Preferred Provider Organization (PPO) statute, La. Rev. Stat. §§ 40:2201-2210, on workers' compensation patients and their healthcare providers and analyzes the status of this litigation.
David Bryan Leonard on Silent PPOs and California Workers' Compensation. Discusses the tempest that appears to be brewing in the California workers' compensation system regarding so-called "Silent PPOs", which are created when a preferred provider organization sells its reduced provider rates to others, such as workers' compensation insurers and self-insured employers without proper disclosure to the medical provider.
Dr. Steven E. Levine on Medical Specialists in Workers' Compensation, California Implications. Examines how medical specialists' willingness to accept workers' compensation patients has been trending downward in a number of states over the past 10 years due to increased regulatory burdens and declines in specialist fees. (Copyrighted by Steven E. Levine.)
Merle C. Rabine on Recent California WCAB Panel Decisions on Sanctions on Reconsideration, Underground Regulations Issued by Medical Unit, and State Disability Payments Not Counted Toward Temporary Disability Cap: Deza v. The Home Depot, Nuno v. Carniceria La Mejor, Schoonover v. First Financial Federal, and Adame v. Automotive Engineered Products. Examines four recent panel decisions: two involving sanctions on reconsideration (see Deza v. The Home Depot 2008 Cal. Wrk. Comp. P.D. LEXIS 228; Nuno v. Carniceria La Mejor 2008 Cal. Wrk. Comp. P.D. LEXIS 253); one involving second QME panels and "underground regulations" (see Schoonover v. First Financial Federal 2008 Cal. Wrk. Comp. P.D. LEXIS 264); and one involving state disability benefits and the 104-week cap on temporary disability indemnity (see Adame v Automotive Engineered Products, Inc. 2008 Cal. Wrk. Comp. LEXIS 217).
Thomas A. Robinson on Free Choice of Doctor Issues: Meyers v. Wildcat Materials, Inc. Analyzes Meyers v. Wildcat Materials, Inc., 2008 Mo. App. LEXIS 927 (July 9, 2008), which illustrates the competing issues at play with regard to whether an injured employee may choose his or her own doctor and control the treatment processes; here, the court's decision strikes an appropriate and reasonable compromise as it gives deference to the concerns of the injured employee, yet takes seriously the issue of whether the employers rights have been prejudiced.
Thomas A. Robinson onRecent Workers' Compensation Cases: Employer's Choice of Medical Care Provider Does Not Apply to Choice of Pharmacy. Includes discussion of Davis Plumbing Co. v. Burns, 2007 Ala. Civ. App. LEXIS 253 (Ala. Civ. App. April 20, 2007), where the court ruled that while the employer is allowed to choose the physician under Ala. Code § 25-5-77, it may not choose the particular pharmacy from which the claimant will receive medication., as well as court decisions in other jurisdictions involving separate topics.
VernonSumwalt on the Physician-Patient Privilege in Workers' Compensation Cases. Lays out the basic theory of the physician-patient privilege and provides advice on how to avoid its pitfalls in practice, with discussion of Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), Salaam v. North Carolina Department of Transportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996), and N.C. Gen. Stat. § 97-25.6.
Preexisting Injury
Merle C. Rabine on Recent California WCAB Panel Decisions on Apportionment, Preexisting Impairment, Third Party Settlements, QME Reports: Odle v. Heintschel Plastering, Anzevino v. Subsequent Injuries Fund, Lacentra v. Cal State Hayward, and Karas v. Los Rios Community College District. Examines Odle v. Heintschel Plastering, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 226, Anzevino v. Subsequent Injuries Fund 2008 Cal. Wrk. Comp. P.D. LEXIS 2, Lacentra v. Cal State Hayward 2008 Cal. Wrk. Comp. P.D. LEXIS 9, and Karas v. Los Rios Community College District 2008 Cal. Wrk. Comp. P.D. LEXIS 8, involving LeBoeuf and apportionment; proving preexisting impairment to testimony alone; "reimbursement" and "credit" in third-party settlements; and inadmissibility of untimely QME reports, respectively.
Presumption of Injury
Merle C. Rabine on Recent California WCAB Panel Decisions on Stipulations, Commutation of Award, and Commercial Traveler: Garcia v. Santa Clara Warehouse, Myers v. City of Salinas, O'Hagan v. Los Angeles Unified School District, and Esposito v. Northwest Airlines, Inc. Examines a psychiatric injury case, in which the employer was bound by trial stipulation that the injury was industrial, despite the claim that applicant worked for less than six months (see Garcia v. Santa Clara Warehouse, 2007 Cal. Wrk. Comp. P.D. LEXIS 192); a case in which the employer was bound by trial stipulation that the "duty belt" presumption applied to applicant's low back injury, despite the claim that applicant used a shoulder holster, not duty belt (see Myers v. City of Salinas 2008 Cal. Wrk. Comp. P.D. LEXIS 13); a case in which commutation of applicant's 100% award to enable her to buy a rental property was held to be in her best interest (see O'Hagan v. Los Angeles Unified School District 2007 Cal. Wrk. Comp. P.D. LEXIS 205); and a case in which the panel found no exception to the "commercial traveler rule" for "kind of dumb" travelers, such as when the employee slipped and fell from a hotel balcony while smoking (see Esposito v. Northwest Airlines, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 217).
Psychiatric Injury
Merle C. Rabine on Recent California WCAB Panel Decisions on Stipulations, Commutation of Award, and Commercial Traveler: Garcia v. Santa Clara Warehouse, Myers v. City of Salinas, O'Hagan v. Los Angeles Unified School District , and Esposito v. Northwest Airlines, Inc. Examines a psychiatric injury case, in which the employer was bound by trial stipulation that the injury was industrial, despite the claim that applicant worked for less than six months (see Garcia v. Santa Clara Warehouse, 2007 Cal. Wrk. Comp. P.D. LEXIS 192); a case in which the employer was bound by trial stipulation that the "duty belt" presumption applied to applicant's low back injury, despite the claim that applicant used a shoulder holster, not duty belt (see Myers v. City of Salinas 2008 Cal. Wrk. Comp. P.D. LEXIS 13); a case in which commutation of applicant's 100% award to enable her to buy a rental property was held to be in her best interest (see O'Hagan v. Los Angeles Unified School District 2007 Cal. Wrk. Comp. P.D. LEXIS 205); and a case in which the panel found no exception to the "commercial traveler rule" for "kind of dumb" travelers, such as when the employee slipped and fell from a hotel balcony while smoking (see Esposito v. Northwest Airlines, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 217).
Thomas A. Robinson on Psychiatric Injuries and the Workplace: Verga v. WCAB. Analyzes Verga v. Workers' Comp. Appeals Bd, 159 Cal. App. 4th 174, 2008 Cal. App. LEXIS 111 (January 23, 2008), in which the Court of Appeal of California held among other things that substantial evidence supported the WCAB's findings that a claimant's supervisor and co-workers did not persecute or harass the claimant and that to the extent her psychiatric injury was caused by a stressful work environment, she had been the cause of most of the stress and should not be allowed to recover on her claim.
Refusal of Medical Treatment
Merle C. Rabine on Recent California WCAB Panel Decisions: Kong v. San Francisco and Sanchez v. Sunrise Mushroom. Examines Kong v. San Francisco, 2007 Cal. Wrk. Comp. P.D. LEXIS 22, which involved "overlap" between factors of disability in the 1997 and 2005 Permanent Disability Rating Schedules, and Sanchez v. Sunrise Mushroom, 2007 Cal. Wrk. Comp. P.D. LEXIS 19, which involved unreasonable refusal to submit to surgery under Labor Code § 4056, where the employers failed to sustain their burden of proof of affirmative defenses.
Thomas A. Robinson on Recent Workers' Compensation Cases: Refusal of Blood Transfusion for Religious Reasons as Grounds for Disqualifying Worker or Worker's Survivors From Workers' Compensation Benefits. Includes discussion of Wilcut v. Innovative Warehousing, 2007 Mo. App. LEXIS 915 (Mo. Ct. App. June 19, 2007), where appellate court was called upon to rule on a host of unusual issues: refusal of blood transfusions on religious grounds, as well as court decisions in other jurisdictions involving separate topics.
Reimbursement
Joseph B. McDonnell on Evans v. Doherty Construction. Examines Evans v. Doherty Construction, Inc., 2008 Ill. App. LEXIS 382 (April 25, 2008), which holds that an employer, who has obtained reimbursement of the compensation benefits paid to an employee and is required under the law to pay the employee's attorney 25% of the amount reimbursed, plus a pro-rata share of employee's litigation expenses, cannot avoid this obligation by "selling" the right to reimbursement to the defendants sued by the employee and being dismissed from the case.
Merle C. Rabine on Recent California WCAB Panel Decisions on Apportionment, Preexisting Impairment, Third Party Settlements, QME Reports: Odle v. Heintschel Plastering, Anzevino v. Subsequent Injuries Fund, Lacentra v. Cal State Hayward , and Karas v. Los Rios Community College District. Examines Odle v. Heintschel Plastering, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 226, Anzevino v. Subsequent Injuries Fund 2008 Cal. Wrk. Comp. P.D. LEXIS 2, Lacentra v. Cal State Hayward 2008 Cal. Wrk. Comp. P.D. LEXIS 9, and Karas v. Los Rios Community College District 2008 Cal. Wrk. Comp. P.D. LEXIS 8, involving LeBoeuf and apportionment; proving preexisting impairment to testimony alone; "reimbursement" and "credit" in third-party settlements; and inadmissibility of untimely QME reports, respectively.
Retaliatory Discharge
Thomas A. Robinson on Recent Workers' Compensation Cases Involving Retaliatory Discharge Claims: Trosper v. Bag 'N Save and Sims v. Ashley Furniture Industries. Examines whether the retaliatory discharge exception should be extended to situations in which the injured worker is not discharged, but is only demoted in retaliation for filing a claim (see Trosper v. Bag 'N Save, 273 Neb. 855, 734 N.W.2d 704 (July 6, 2007), and Sims v. Ashley Furniture Industries, 964 So.2d 625 (Miss. Ct. App. September 11, 2007)).
James M. Stone & Nicole M. Monachino on the Limitation of Workers' Compensation Retaliation Claims. Discusses the Ohio Supreme Court case, Bickers v. W. & S. Life Ins. Co., 116 Ohio St. 3d 351, 2007 Ohio 6751 (2007), in which the Court narrowed the number of claims and potential recovery for employees who are terminated while receiving workers' compensation benefits to statutory claims under Ohio Revised Code § 4123.90, effectively barring the public policy claims created by Coolidge v. Riverdale Local Sch. Dist., 100 Ohio St. 3d 141 (2003).
Return to Work
Dr. Jennifer Christian on ACOEM's New Work Disability Prevention Guideline. Presents the American College of Occupational & Environmental Medicine (ACOEM) work disability prevention guideline as a way to better handle key non-medical aspects of the process that determines if an injured or ill person will stay at work or return to work will improve outcomes. (Copyrighted by Webility Corporation.)
Laughlin, Falbo, Levy & Moresi, LLP, on Returning Injured Employees to Work. Addresses issues such as who qualifies for the permanent disability adjustment; how the adjustment is applied; what happens if the regular, modified, or alternative work offered to the employee is terminated before the end of the period for which permanent disability payments are owing; and how the supplemental job displacement statute affects adjustments under Cal. Labor Code Section 4658. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Second Injury Fund
Doug McCoy on Elimination of Second Injury Funds and Impact on Iraqi War Veterans. Examines the policies behind the closure of Funds by several states beginning in 1992, and the potential impact on Iraqi War Veterans and others.
Doug McCoy on the Closing of the Subsequent Injury Trust Fund. Examines the impact of the July 1, 2006 Georgia legislation that closed the Subsequent Injury Trust Fund to new claims with injury dates on or after that date, and provides strategies and best practices for both claims handlers and recovery specialists.
Robert G. Rassp and James Ponzio on Noteworthy California WCAB Decisions Denied Judicial Review. Examines four recent "writ denied" cases dealing with medical treatment in the form of two-level arthroplasty disc surgery (see Glagola Construction Company v. WCAB (2007) 72 Cal. Comp. Cas. 1016), attorney's fees in a situation where a compromise and release was entered into with an unrepresented applicant (see Monument Car Parts v. WCAB (Teach) (2007) 72 Cal. Comp. Cas. 1021), an applicant's blood-borne methicillin-resistant staphylococcus aureus (MRSA), which was found to be a compensable consequence of his left shoulder injury (see Ralphs Grocery Company v. WCAB (Romano) (2007) 72 Cal. Comp. Cas. 1028), and a recent review of case law that covers the criteria for eligibility for Subsequent Injuries Benefits Trust Fund benefits (see Rea v. WCAB (Rasmussen) (2007) 72 Cal. Comp. Cas. 1035).
Settlement
Laughlin, Falbo, Levy & Moresi, LLP, on Pro Per Settlements. Provides a checklist to be used as a guide for claims administrators and practitioners when assembling the settlement documents and attachments in a case involving pro per or unrepresented applicants. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Robert G. Rassp and James Ponzio on Noteworthy California WCAB Decisions Denied Judicial Review. Examines four recent "writ denied" cases dealing with medical treatment in the form of two-level arthroplasty disc surgery (see Glagola Construction Company v. WCAB (2007) 72 Cal. Comp. Cas. 1016), attorney's fees in a situation where a compromise and release was entered into with an unrepresented applicant (see Monument Car Parts v. WCAB (Teach) (2007) 72 Cal. Comp. Cas. 1021), an applicant's blood-borne methicillin-resistant staphylococcus aureus (MRSA), which was found to be a compensable consequence of his left shoulder injury (see Ralphs Grocery Company v. WCAB (Romano) (2007) 72 Cal. Comp. Cas. 1028), and a recent review of case law that covers the criteria for eligibility for Subsequent Injuries Benefits Trust Fund benefits (see Rea v. WCAB (Rasmussen) (2007) 72 Cal. Comp. Cas. 1035).
Teddy Snyder on Preserving Public Benefits: A Settlement Primer. Provides the workers' compensation practitioner with basic information that highlights issues critical to the settlement process.
Teddy Snyder on Settling a Workers' Compensation Case: Why, When, and How. Discusses the benefits and risks of settling workers’ compensation claims, from the viewpoint of both employees and employers.
Spouse
Thomas A. Robinson on Death Benefits for Partners in Civil Union: Langan v. State Farm. Analyzes a case of first impression, Matter of Langan v. State Farm Fire & Casualty, 2007 N.Y. App. Div. LEXIS 13242 (December 27, 2007), in which a New York a state appellate court was faced with a highly charged issue: does the surviving member or partner of a state sanctioned civil union have standing as "legal spouse" of the deceased employee so as to entitle him/her to death benefits under the New York Workers' Compensation Act?
Subrogation
Laughlin, Falbo, Levy & Moresi, LLP, on California Subrogation Strategies. Discusses California subrogation strategies when the injured worker is not a party to the civil case, including circumstances when the employer prosecutes the civil case alone, recovery of damages owed to the employee, recovery of future workers' compensation expenditures, and recovery of prejudgment interest. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Laughlin, Falbo, Levy & Moresi: Taking the Fear Out of Subrogation (Part One). Seeks to provide helpful information to claims examiners who must venture beyond the relatively familiar territory of workers' compensation into the unknown realm of third party fault and damages, civil court rules and procedures. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Laughlin, Falbo, Levy & Moresi: Taking the Fear Out of Subrogation (Part Two). Seeks to provide helpful information to claims examiners who must venture beyond the relatively familiar territory of workers' compensation into the unknown realm of third party fault and damages, civil court rules and procedures. (Copyrighted by Laughlin, Falbo, Levy & Moresi, LLP.)
Thomas A. Robinson on Subrogation Lien and Verdict Risk Limiting Agreements: Pool v. Morristown Memorial Hosp. Analyzes Pool v. Morristown Memorial Hosp., 948 A.2d 712, 2008 N.J. Super. LEXIS 128 (June 16, 2008), in which the injured worker unsuccessfully attempted to prevent the carrier from reaching the proceeds of the worker's medical malpractice civil action by arguing that since the worker's recovery was paid according to the provisions of a "verdict risk limiting" or "high/low" agreement with one of the defendants, not actually upon the basis of the jury's verdict -- the jury returned a verdict favorable to the defendant -- there was no "wrongdoer" and, hence, no actual "proceeds" to which the carrier's lien might attach.
Taxes
Alan D. Campbell on George R. Willis and D. Thomas-Willis v. Commissioner. Examines the U. S. Tax Court's decision in George L. Willis and D. Thomas-Willis v. Commissioner, TC Memo 1997-290, 73 TCM 3183 (1997) to determine under what circumstances workers' compensation benefits are taxable and if there is any tax relief available for a taxpayer who receives a lump-sum payment of Social Security benefits attributable to previous tax years.
Temporary Disability
John J. Dubreuil on the Florida District Court's Latest Word on Temporary Partial Disability BenefitsAfter Economic Layoff. Examines Arnold v. Florida 's Blood Ctrs., Inc., 949 So. 2d 242 ( Fla. 1st DCA Jan. 24, 2007), which provides that an employee may collect temporary partial disability after she leaves her employment because her employer declines to continue her employment under restrictions that are dictated by her disability.
Merle C. Rabine on Recent California WCAB Panel Decisions on Sanctions on Reconsideration, Underground Regulations Issued by Medical Unit, and State Disability Payments Not Counted Toward Temporary Disability Cap: Deza v. The Home Depot, Nuno v. Carniceria La Mejor, Schoonover v. First Financial Federal, and Adame v. Automotive Engineered Products. Examines four recent panel decisions: two involving sanctions on reconsideration (see Deza v. The Home Depot 2008 Cal. Wrk. Comp. P.D. LEXIS 228; Nuno v. Carniceria La Mejor 2008 Cal. Wrk. Comp. P.D. LEXIS 253); one involving second QME panels and "underground regulations" (see Schoonover v. First Financial Federal 2008 Cal. Wrk. Comp. P.D. LEXIS 264); and one involving state disability benefits and the 104-week cap on temporary disability indemnity (see Adame v Automotive Engineered Products, Inc. 2008 Cal. Wrk. Comp. LEXIS 217).
Jesse N. Rosen on California Temporary Disability Limitation - An Overview and Interpretations of Cal. Lab. Code § 4656(c)(1) Four Years After SB 899. Provides an overview of the limit on temporary disability under SB 899, enacted as Cal. Lab. Code § 4656(c)(1), which was one of the more draconian aspects of the reform act, and how after four years the major aspects of the subsection have been clarified by case law.
Jesse N. Rosen on California Temporary Disability Limitation and Multiple Injuries: Foster v. Workers' Comp. App .Bd. Analyzes a case of first impression, Foster v. Workers' Comp. App. Bd. (2008) 161 Cal. App. 4th 1505, 73 Cal. Comp. Cas. 466, in which the Court of Appeal interpreted the application of the two-year aggregate temporary disability limit under Cal. Lab. Code § 4656(c)(1) when an applicant has suffered multiple injuries.
Termination
Merle C. Rabine on Recent California WCAB Panel Decisions: Audiss v. City of Rohnert Park and Dover v. Fresh Start Bakeries, Inc. Examines Audiss v. City of Rohnert Park, 2007 Cal. Wrk. Comp. P.D. LEXIS 9, which involves "the bump" in permanent disability payments set forth in Cal. Labor Code § 4658(d)(2), (3), which is supposed to encourage return to work, and Dover v. Fresh Start Bakeries, Inc., 2006 Cal. Wrk. Comp. P.D. LEXIS 53, which involves "contemporaneous" notices of termination and injury, which do not bar compensation pursuant to Cal. Labor Code § 3600(a)(10).
Third Party Actions
Joseph B. McDonnell on Gallagher v. Lenart. Examines the Illinois Supreme Court's decision in Gallagher v. Lenart, 226 Ill. 2d 208, 2007 LEXIS 1150 (Ill. 2007), that a employer's waiver of its lien against a third party recovery must be clear and unmistakable from the language used in the settlement contract and may not be inferred or implied.
Merle C. Rabine on Recent California WCAB Panel Decisions on Apportionment, Preexisting Impairment, Third Party Settlements, QME Reports: Odle v. Heintschel Plastering, Anzevino v. Subsequent Injuries Fund, Lacentra v. Cal State Hayward , and Karas v. Los Rios Community College District. Examines Odle v. Heintschel Plastering, Inc. 2007 Cal. Wrk. Comp. P.D. LEXIS 226, Anzevino v. Subsequent Injuries Fund 2008 Cal. Wrk. Comp. P.D. LEXIS 2, Lacentra v. Cal State Hayward 2008 Cal. Wrk. Comp. P.D. LEXIS 9, and Karas v. Los Rios Community College District 2008 Cal. Wrk. Comp. P.D. LEXIS 8, involving LeBoeuf and apportionment; proving preexisting impairment to testimony alone; "reimbursement" and "credit" in third-party settlements; and inadmissibility of untimely QME reports, respectively.
Vernon Sumwalt on "Last Clear Chance" Doctrine under N.C. Gen. Stat. § 97-10.2(e): Outlaw v. APAC-Atlantic, Inc.Examines the facts and the law behind the Outlaw v. APAC-Atlantic decision, which holds that a negligent employer cannot recover its workers' compensation lien even though a negligent third party had the last clear chance of avoiding an injury, as well as the lessons that advocates can take from the court's decision
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