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

I invite everyone to share their thoughts about these cases.

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

Florida Retail Federation, Inc. v. Attorney General of Florida, 2008 Dist. LEXIS 59182 (July 28, 2008).  Several plaintiffs challenged Fla. Stat. § 790.251, that, according to the judge, requires some Florida businesses but not others to allow customers and some workers to have guns secured in their vehicles in the parking lot.  The plaintiffs' principal assertion was that the statute is unconstitutional because, without sufficient justification, it compels property owners to make their property available for purposes they do not support  and that it violates the federal Occupational Safety and Health Act because it endangers workers.  The plaintiffs also asserted that the statute was unconstitutional because it drew an irrational distinction between the businesses that are and are not required to allow guns in the parking lot.  After a hearing, the federal district court concluded that—at least for purposes of the preliminary injunction ruling—the statute was constitutional in some respects and not others. The court determined that plaintiffs were entitled to a preliminary injunction based on the familiar four-factor test and a number of conclusions, which were subject to revision when the action was fully submitted on the merits in due course.  The court stated that the Florida Legislature acted within its constitutional authority when it afforded a worker with a concealed-carry permit a statutory right to have a gun secured in a vehicle in a parking lot. The Legislature also acted within its constitutional authority in protecting that right by prohibiting a business from asking such a worker whether he or she has a gun in a vehicle in a parking lot, taking action against such a worker based on a statement about whether the worker has a gun in a vehicle in a parking lot for lawful purposes, searching such a worker's vehicle for a gun, conditioning employment on whether a worker has a concealed-carry permit, or terminating or otherwise discriminating against a worker with a concealed-carry permit for having a gun in a vehicle in a parking lot.  The Legislature violated the United States Constitution, however, when it imposed limitations on a business's treatment of its customers but made those limitations applicable only to a business with a worker with a concealed-carry permit, not to an otherwise-identically-situated business with no such worker.  According to the court, there was no rational basis for this disparate treatment of such businesses.  Incidentally, the court also held that the statute’s operation was not preempted by the OSH Act. On August 15, 2008, the district court issued a clarification making it clear that employees with concealed-carry permits only have the right to keep locked guns in their vehicles in employer parking lots; the new law does not authorize a person to carry a gun on his or her person on the property of another without that property owner’s consent. See generally Larson’s Workers’ Compensation Law § 9.03.

McDannald v. Robert L. Fry & Assocs., 2008 Ohio 4169; 2008 Ohio App. LEXIS 3522 (August 18, 2008).  Appellant employee sued appellee employer in the Madison County Court of Common Pleas ( Ohio ) for termination in retaliation for filing and/or pursuing workers' compensation claims, contrary to R.C. 4123.90 and public policy. The trial court granted summary judgment in favor of the employer, and the employee appealed.  The employee said that, after the employer told him he could not return to work after an injury, due to a lack of work, the employer hired other people. The appellate court held the employee failed to address the elements of a prima facie case of retaliatory discharge, specifically that his employment was terminated. His claim that he was not allowed to work did not prove he was fired. He was told he would be called when work was available, but, rather than wait, he sued the employer less than a month later. His claim that six new employees were hired since his termination was unpersuasive because the employer only hired one new person between the time the employee was cleared to work and the time he filed suit.  That worker was an apprentice, whose pay scale was less than the employee's. Regardless of the employee's claims that the employer did not show a legitimate, nondiscriminatory reason for his termination, he did not prove a prima facie case of retaliatory termination. It was not error to dismiss the employee's common law public policy claim because his exclusive remedy was under R.C. 4123.90. See generally Larson’s Workers’ Compensation Law § 104.07.

State ex rel. Smurfit-Stone Container Enters. v. Sells, 2008 Ohio 4108; 2008 Ohio App. LEXIS 3472 (August 14, 2008).  Relator employer requested a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order granting respondent employee's motion for authorization of left knee surgery, and to enter an order denying the motion. A magistrate recommended denial of the writ. No objections were filed.  The employer argued that the surgeon's reference to the ACL reconstruction in his January 26, 2006 office note had to be viewed as an indication that the need for a left total knee arthroplasty was not related to the 1993 industrial claim since the ACL reconstruction was performed in 1985 prior to the 1993 injury. The appellate court held that, as the magistrate found, the relied upon evidence from the surgeon provided some evidence supporting the Commission's determination that the requested surgery was related to the 1993 industrial injury. While the surgeon did reference the ACL reconstruction, he went on to say that the employee had gone on to develop very significant end-stage degenerative arthritis, a clear reference to an allowed condition of the 1993 claim. It was well within the Commission's discretion, as the interpreter of the evidence, to conclude that the January 26, 2006 office note was evidence of a causal relationship between an allowed condition of the 1993 claim and the requested surgery. The reference to the ACL reconstruction that occurred prior to the 1993 injury did not necessarily detract from that conclusion. The writ of mandamus was denied. The magistrate's decision was adopted, including the findings of fact and conclusions of law contained in it. See generally Larson’s Workers’ Compensation Law § 130.01.

Jamison v. Workers' Comp. Appeal Bd., 2008 Pa. Commw. LEXIS 385 (August 19, 2008). Claimant sought review of an adjudication of the Workers' Compensation Appeal Board (Board) dismissing her claim petition. The Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant was not a traveling employee and, therefore, the injury she sustained while traveling to her place of employment was not compensable under the Workers' Compensation Act.  On the day of her injury, Claimant was scheduled to visit two clients for the employer.  She was not required to check in at her employer’s. While traveling from her home to the first client's home, Claimant was involved in a motor vehicle accident and sustained injuries.  The Commonwealth Court determined that since the employer required Claimant to work for the employer's clients in their homes, Claimant had to travel to get to those homes.  She did not work on the employer's premises; was not required to go to the employer's office before or after any visits; and did not have a fixed place of work for the employer.  Because Claimant had to travel to patient homes, travel was an essential element of her work. As such, she was a traveling employee and the normal “going and coming rule” did not apply.  The Commonwealth Court accordingly reversed the Board's adjudication and remanded the matter for further proceedings. See generally Larson’s Workers’ Compensation Law §§ 13.01, 14.01.

Combine v. Workers' Comp. Appeal Bd. (Nat'l Fuel Gas Distrib. Corp.), 2008 Pa. Commw. LEXIS 380 (August 14, 2008).  Petitioner claimant sought review of an order of respondent, the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ) granting a modification petition filed by respondent employer that converted the claimant's disability status from total disability to partial disability based on a 20% impairment rating.  The claimant sustained a work-related injury in the nature of a medial meniscus tear to his left knee on December 4, 2000 and was paid total disability benefits. In 2006, the employer filed a modification petition. The claimant asserted that modification was not appropriate under the Pennsylvania Workers' Compensation Act, 77 Pa. Stat. Ann. §§ 1-1041.4, 2501-2708, as he had not reached maximum medical improvement (MMI). The WCJ granted the modification petition, and the Board affirmed. On appeal, the court reversed. Section 306(a.2) of the Act, 77 Pa. Stat. Ann. § 511.2, provided that an impairment rating evaluation (IRE) had to be conducted pursuant to the American Medical Association "Guides to the Evaluation of Permanent Impairment"; the Guides specifically indicated that a permanent impairment could only be rated after MMI had been reached. Based on the mandatory language of "shall" in § 511.2, a finding of MMI was required. The IRE physician did not indicate that the claimant was at MMI based on his continued discomfort after a partial knee replacement and the fact that a total knee replacement would probably not be undertaken for a few years based on the claimant's young age.  The court reversed the Board's order and returned the claimant's disability status to that of total disability. See generally Larson’s Workers’ Compensation Law § 80.03.

Birnie v. Electric Boat Corp., 2008 Conn. LEXIS 307 (August 19, 2008).  Defendant appealed the decision of the workers' compensation commissioner to the compensation review board that had determined that the defendant was collaterally estopped from disputing the payment of survivor's benefits to the plaintiff.  The review board affirmed the commissioner's decision, and the defendant appealed.  At issue was whether the causation standard applied by a United States Department of Labor administrative law judge (administrative law judge) in a prior proceeding brought under the federal Longshore and Harbor Workers' Compensation Act (Longshore Act); 33 U.S.C. § 901 et seq.; was less stringent than the "substantial factor" causation standard utilized in cases brought under the Connecticut Workers' Compensation Act (state act); General Statutes § 31-275 et seq.; such that the relitigation of causation under the state act was barred by the doctrine of collateral estoppel.  The state supreme court concluded that the application of collateral estoppel was improper in this case because the decision of the administrative law judge in the Longshore Act proceeding did not articulate clearly the scope of the contributing factor standard he had applied, and there was no basis, therefore, to conduct an adequate comparison of the contributing factor and the substantial factor causation standards.  Accordingly, the court reversed the decision of board. See generally Larson’s Workers’ Compensation Law § 127.07.