Each week I'll be blogging about recent, interesting workers' compensation cases.

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© Copyrighted 2008 by Matthew Bender & Co., Inc., part of the LexisNexis Group. All rights reserved.

Fast Tract Framing, Inc. v. Caraballo, 2008 Fla. App. LEXIS 14081 (September 15, 2008). In 2004, Claimant began working for Mendez, a subcontractor of Fast Tract Framing, a housing contractor. Mendez paid Claimant in cash and did not withhold any federal taxes from Claimant's pay.  Claimant did not report his income from Mendez to the IRS.  Claimant suffered a compensable accident and sought workers' compensation benefits against Fast Tract, contending it was his statutory employer.  Fast Tract contended it did not owe Claimant benefits because he had earned no wages within the meaning of Fla. Stat. § 440.02(28), which speaks of wages “earned and reported for federal income tax purposes on the job where the employee is injured ...”.  The judge of compensation claims determined that Fast Tract was Claimant’s statutory employer under section 440.10(1)(b), and granted him full temporary total disability benefits for an 104-week period for an average weekly wage of $280 a week.  Fast Tract appealed, and the appellate court reversed the trial judge's decision. The appellate court noted that section 440.02(28) requires wages to be “reported for federal income tax purposes,” that it was for the legislature, and not the courts, to address any public policy issues that resulted from the exclusion of wages that a worker failed to report.  See generally Larson’s Workers’ Compensation Law § 93.01.

State ex rel., International Truck and Engine Corp. v. Industrial Comm’n, 2008 Ohio 4494; 2008 Ohio LEXIS 2310 (September 11, 2008).  Appellant employer sought review of a judgment from the Court of Appeals for Franklin County ( Ohio ), which affirmed a decision of appellee, the Industrial Commission of Ohio (IC), awarding appellee employee temporary total disability (TTD) compensation during the employee's recuperation from surgery. The matter arose in the employer's mandamus action.  The employee's workers' compensation claim was allowed for several low back conditions. He thereafter sought authorization for back surgery. An examination by a doctor resulted in the conclusion that the employee was not an acceptable candidate for surgery, and a staff hearing officer (SHO) for the IC denied the employee's request. A second request by the employee resulted in a SHO's determination that the surgery was not necessary and not reasonably related to the allowed industrial injury. The employee elected to have the surgery, and his request for post-surgery TTD compensation during the recovery period was allowed upon a finding that the surgery stemmed from the allowed conditions. The employer's mandamus action resulted in a decision upholding the IC's TTD award. On appeal, the court held that the prior finding by the SHO that there was no causal relationship between the injury and the surgery was res judicata. As that determination was not vacated and there was no formal assertion of continuing jurisdiction under R.C. 4123.52, the IC abused its discretion in later finding a causal relationship between the surgery and the allowed conditions for purposes of the TTD.  The court reversed the judgment of the court of appeals.  See generally Larson’s Workers’ Compensation Law § 127.07.

State ex rel., AK Steel Corp. v. Davis, 2008 Ohio 4591; 2008 Ohio App. LEXIS 3835 (September 11, 2008).  Relator employer filed an action in mandamus, seeking a writ to compel respondent Industrial Commission of Ohio to vacate its order granting respondent employee an award for a violation of a specific safety requirement (VSSR). A magistrate recommended granting the writ. The employee filed objections.  The employee asserted that the temper roll mills in which she was injured performed a dual function and therefore constituted feed rolls. The rolls both fed the steel and tempered the steel. The appellate court held that the magistrate erred when it found that the Commission erred by granting the VSSR application because some evidence supported the Commission's factual finding. The Commission, in granting the VSSR, did not view the facts as demonstrating that the rolls were not feed rolls because their primary purpose was to temper the steel, not to move it. Feed rolls have clearly been allowed to perform multiple functions despite VSSR Bulletin 203's express limitation that feed rolls perform no other function than to feed material to the point of operation. Therefore, deference was given to the Commission's interpretation of what constituted a feed roll, an interpretation that seemed to be consistent with the ruling in Harris. Because the rolls fed 6,000 pounds of steel, they were feed rolls and required a guard rail.  The objections to the magistrate's decision were sustained and the writ of mandamus was denied. The magistrate's findings of fact were adopted, but the conclusions of law were not.  See generally Larson’s Workers’ Compensation Law § 105.06.

Cincinnati Indemnity Co. v. A & K Const. Co., 2008 App. LEXIS 19546 (8^th Cir. September 15, 2008).  Plaintiff indemnity company issued a workers' compensation policy.  Plaintiff sued for a declaratory judgment that defendant employee was not defendant construction company's employee when he was injured.  Defendants, the construction company and the employee, moved to dismiss for lack of subject matter jurisdiction.  The United States District Court for the Western District of Missouri granted the motions to dismiss. Plaintiff appealed.  A district court had subject matter jurisdiction to try an original action concerning a state workers' compensation claim, if the requisites of diversity jurisdiction were met.  The complaint sought only a declaratory judgment. Presented with the motion to dismiss, the 8^th Circuit Court found that the district court should have considered abstaining from exercising jurisdiction in the declaratory case because a parallel state lawsuit was pending.  Because plaintiff requested a declaratory judgment pursuant to 28 U.S.C.S. § 2201, the district court had the discretion to determine whether and when to entertain an action under the Declaratory Judgment Act. The parties and the issues were identical in the federal and state courts. Missouri law governed the issues. All necessary parties were already joined in the state case. Finally, the state proceedings were adequate to resolve the issue of the employee's status at the time of the accident, which would have resulted in uniform decisions within the state's statutory scheme. The question in controversy would have been better settled in the pending state case. The district court erred by not abstaining on the facts.  The judgment of the district court was vacated. The case was remanded for consideration of whether it should have been dismissed without prejudice or stayed.  See generally Larson’s Workers’ Compensation Law § 124.02.

Samp v. MeritCare Health System, 2008 Dist. LEXIS 69841 (D. N.D. September 16, 2008). Samp, a Minnesota resident, worked for Thoreson Plumbing.  Samp lacerated his leg with a "chop saw" while on a job site in Minnesota .  Samp received treatment from MeritCare Occupational Health in Fargo, North Dakota as well as workers compensation benefits for his injuries.  Samp filed an action for medical malpractice against MeritCare, alleging that the care he received was negligent and had caused significant injuries. Thoreson intervened, seeking reimbursement from MeritCare for increased insurance premiums under Minn. Stat. § 176.061(5)(b) and administrative costs associated with handling its part of the claim.  Applying Minnesota (rather than North Dakota ) law, the district court held that it could not yet determine if Minn. Stat. § 176.061(5)(b) was applicable.  It did determined, however, that Thoreson could not recover the "significant administrative costs" allegedly incurred in processing Samp's medical bills.  See generally Larson’s Workers’ Compensation Law § 122.01.

Guarascio v. Drake Assocs., Inc., 2008 Dist. LEXIS 69474 (S.D. N.Y. September 15, 2008). The litigation arose out of a diving accident in which Plaintiffs' ward (the diver) sustained permanent severe brain damage after his air supply was cut off.  Defendant Drake Associates Inc. moved for partial summary judgment on the ground that the diver did not qualify as a "seaman" under the Jones Act. Drake admited that the diver performed some Jones Act work and was paid some Jones Act wages during the course of his employment. The diver was hired as a commercial diver, but performed a variety of assignments for Drake, including construction, dock building, maintenance, diving and dive tending. Some of the diver’s work at Drake required that he work on or from a vessel, or be transported to a work site on a boat.  Plaintiffs contended that the diver's work also involved "crewing" on Drake's fleet of vessels. The open question was whether the diver performed enough of this Jones Act work to qualify as a "seaman" under the Act.  The district court found that And Drake had not demonstrated that the diver had a "clearly inadequate temporal connection to vessels in navigation."  Partial summary judgment was, accordingly, not appropriate.  See generally Larson’s Workers’ Compensation Law § 146.02.