Prewitt v. Alexson Servs., Inc., 2008 Ohio 4306, 2008 Ohio App. LEXIS 3612 (August 25, 2008). Appellant employee sued appellee employer in the Butler County Court of Common Pleas (Ohio) for the negligent hiring, supervision and retention of a fellow employee who raped the employee. The trial court granted summary judgment in favor of the employer, and the employee appealed.  The employee said it was error to find the employer was immune, under R.C. 4123.74. The appellate court held regardless of the nature of the employee's injuries from the rape, the controlling inquiry was whether they were accidental or occurred in the course of or arose out of the employment. The rape did not occur in the course of or arise out of the employment because rape was not a natural and probable consequence of the nature of the employment at a residential facility for the mentally disabled, nor was rape an "accident" included in the definition of "injury" in R.C. 4123.01(C). Thus, Ohio's workers' compensation scheme was not the employee's exclusive remedy. However, no fact issues existed regarding the employer's negligent hiring, retention and supervision of the fellow employee. At issue was whether the employer knew or should have known the fellow employee would sexually assault a co-worker, and by hiring him and letting him to continue to work committed negligence proximately causing the employee's injuries. The employee did not show the requisite foreseeability. The fellow employee's conviction for exposing himself did not show the rape was foreseeable.  The trial court's judgment was affirmed. See generally Larson’s Workers’ Compensation Law § 100.03, 103.07.

Duncan v. Workers' Comp. Appeals Bd. (Silca), 2008 Cal. App. LEXIS 1354 (August 26, 2008).  Petitioner, the Uninsured Employers Benefits Trust Fund (UEBTF), sought review of an order by respondent, the California Workers' Compensation Appeals Board (WCAB), which returned a matter to a workers' compensation judge to determine whether a sanction should be imposed on UEBTF for its delay in paying a workers' compensation applicant's attorney fees.  The applicant's husband had been killed in an industrial accident. The husband's employer was illegally uninsured for workers' compensation liability. The court concluded that WCAB erred in holding that sanctions could be imposed against UEBTF if its failure to comply with the award of attorney fees resulted from willful or bad faith actions. Under Lab. Code, § 3716.2, the legislature specified that UEBTF could not be liable for any penalties or for the payment of interest on any awards. The statutes defining and limiting UEBTF's obligations and liability did not permit imposition of any penalty mandated by Lab. Code, § 5814 against UEBTF, even for its own unreasonable delay in paying valid claims for workers' compensation. The request by the applicant's attorney for sanctions pursuant to Lab. Code, § 5813, originated as a request for § 5814 penalties against UEBTF for its delay in paying attorney fees awarded in a settlement reached with the applicant. However, it was the § 5814 penalty provisions, not § 5813, that addressed unreasonable delay in paying a workers' compensation award. Therefore, the applicant's attorney misused, and WCAB misapplied, § 5813 for that purpose.  WCAB's decision was annulled, and the matter was remanded to WCAB for further proceedings. See generally Larson’s Workers’ Compensation Law § 135.01.

Benton v. Hamilton County Educational Serv. Center, 2008 Ohio 4272, 2008 Ohio App. LEXIS 3586 (August 22, 2008).  Appellant employer sought review of a judgment from the Hamilton County Court of Common Pleas (Ohio), which dismissed its administrative appeal pursuant to R.C. 4123.512 from an order of appellee, the Administrator of the Ohio Bureau of Workers' Compensation, allowing appellee employee's workers' compensation claim and denying the employer's request to terminate her benefits.  The employee sustained injuries in a motor vehicle accident. She sought workers' compensation benefits, wherein she claimed that her injuries occurred in the scope of her employment with the employer. Her claim was allowed for various injuries. Thereafter, the employee's claim for additional conditions was granted. The employer sought a finding by the Industrial Commission pursuant to R.C 4123.52 that the employee's injuries had not occurred in the scope of employment, that she had committed fraud, and that such benefits were to be terminated. The employer's requests were denied. It appealed under § 4123.512(A), and the trial court dismissed the matter due to lack of subject-matter jurisdiction. On appeal, the court noted a split of authority among appellate districts as to the appealability of an employer's allegation of fraud by an employee in a workers' compensation proceeding. Following the Fifth and Tenth Appellate Districts, the court held that the issue was appealable. The employer's claim of fraud directly questioned whether the employee's injury had occurred in the course of her employment, such that it questioned her right to participate in the workers' compensation fund.  The court reversed the judgment of the trial court and remanded the matter for further proceedings. See generally Larson’s Workers’ Compensation Law § 130.03.

USA Waste of Md., Inc. v. Love, 2008 D.C. App. LEXIS 378 (August 21, 2008). The dispositive issue in this appeal was whether an employee of a temporary labor services company was also an employee, for purposes of workers' compensation law, of the business entity to which he was assigned to work.  Appellee Isaac Anthony Love was detailed by Ready Staffing, Inc. ("Ready Staffing") to work as a truck driver's assistant for appellant USA Waste of Maryland, Inc. ("USA Waste"), a Maryland trash collection company.  Love was seriously injured on the job and brought a personal injury action against USA Waste in Superior Court. In pretrial motions and at trial, USA Waste contended that, as one of Love's employers, it was immune from tort liability to him. The trial judge rejected the defense, ultimately ruling as a legal matter that USA Waste was not Love's employer under District of Columbia law.  At trial, the jury returned a verdict in Love's favor and awarded him damages of $1,335,938.56. USA Waste appealed.  The court of appeals reversed, holding that Love was USA Waste's employee under the so-called "lent employee" doctrine. The work Love performed as a trash collector was "essentially that of the second employer," USA Waste; and USA Waste had the right to and did control the details of the work, including the collection routes to be followed, the hours worked, the equipment used, and the specific manner of performance.  The court indicated that Love was indistinguishable from a regular employee of USA Waste doing the same work.  USA Waste, therefore, was immune from tort liability to Love, and was entitled to judgment as a matter of law. See generally Larson’s Workers’ Compensation Law § 67.01.