Workers Comp Cases
Balance
IL: Child welfare worker wins benefits for injuries in workplace restroom. In Illinois, a worker's injuries arise out of her employment if her employment was a contributing factor in the accident. ?
Case name: Davis v. Illinois Department of Children and Family Services, 19 ILWCLB 189 (Ill. W.C. Comm. 2011)
Ruling: The Illinois Workers' Compensation Commission awarded benefits to a worker who sustained injuries when she fell in the restroom at work because her employment was a contributing factor in the accident.
What it means: In Illinois, a worker's injuries arise out of her employment if her employment was a contributing factor in the accident.
Summary: A child welfare specialist and call floor worker's employment required her to take incoming phone calls concerning abused and neglected children. The call floor was understaffed. She took her designated break to use the restroom. While she was washing her hands in the restroom, she heard a coworker call out her name and thought she was needed for an urgent call. As she turned around to respond, she ran into the garbage can located in the restroom, which began to fall. She attempted to grab the garbage can to keep it from falling, but she fell to the floor and injured her spine and knee. The arbitrator found the claimant's accident arose out of and in the course of her employment and awarded benefits. The commission affirmed the arbitrator's decision.
The commission said it was undisputed that the accident occurred in the course of the claimant's employment, as she had gone to the restroom for her personal comfort during her designated break. The evidence showed that her fall was due to her response to the coworker's call for her. Thus, some phase of the worker's employment was a contributing factor in the accident.
IL: Comp doesn't cover worker's collision with tree in employer's parking lot
In Illinois, an employee is not entitled to benefits if his activities did not expose him to an increased risk of injury.
What it means: In Illinois, an employee is not entitled to benefits if his activities did not expose him to an increased risk of injury.
Summary: A building maintenance worker for a university was pulling into a parking lot that was close to the building where he worked. The lot was owned by the university and could only be used by faculty and staff during the week. He said it was foggy when he drove to work, and as he pulled into the parking lot, he bent down to find the defogger button. He believed he "cranked his wheel" and ran into a tree that was inside the lot. His head struck the windshield, and he alleged head, neck, and arm injuries. He admitted to drinking two to three beers at least an hour and a half before the accident. The commission found the claimant's accident was not compensable.
The commission found that the worker's use of the university's parking lot did not expose him to an increased risk of injury. The worker acknowledged he was not required to park in any particular spot in the lot. The commission concluded that the worker failed to prove the accident arose out of his employment.
Indiana Case Summary:
Ruling: The Indiana Court of Appeals held that a worker could reduce his lien by attorney's fees and costs, but not in the same proportion that his full recovery was reduced.
What it means: In Indiana, an injured worker who settles with a third party for substantially less than the damages value of his claim without the consent of his employer or the workers' compensation carrier can reduce his lien by attorney's fees and costs.
Summary: A worker for a business suffered third degree burns to his hands and face while performing maintenance on a slag processing system at a steel company. The business's workers' compensation carrier paid him temporary total disability benefits and medical expenses. He sued the steel company and one of its supervisors. The parties reached a settlement agreement for substantially less than the damages value of his claim. The agreement provided that that the worker was responsible for paying all liens, including the workers' compensation lien for the benefits received from the business. The agreement was reached without the consent of the business or its carrier. The worker sought to reduce his workers' compensation subrogation lien. The Indiana Court of Appeals held that the worker could reduce the lien by attorney's fees and costs.
The court explained that if an injured worker settles with a third party for an amount more than his workers' compensation benefits, he must reimburse the workers' compensation payor and keep the remainder of the settlement, relinquishing his right to the compensation benefits.
The court said that the worker was barred from seeking a lien reduction because he settled the case without the business's consent. The worker argued that he set aside the lien amount in an escrow account. However, the court said this did not protect the business by court order, as required by state law. Therefore, the lien could not be reduced in the same proportion that the worker's full recovery was reduced.
Case name: Channels v. Bureau of Workers' Compensation, et al., No. 10JE16 (Ohio Ct. App. 03/14/11)
Ruling: The Ohio Court of Appeals held that a worker's injury did not occur while in the course of and arising out of his participation in a vocational rehabilitation program.
What it means: In Ohio, a worker injured at home when he returned to continue a job search through a vocational rehabilitation program is not entitled to compensation.
Related Coverage
Deputy sheriff can't secure medical benefits for back problems (11/16/09)
Employee entitled to attorney's fees in appeal, but not as a sanction (09/28/09)
Witness discredits claimant's contention that he was assaulted by coworker (05/28/09)
First employer on hook for later surgery costs (08/23/10)
Coal miner's claim doesn't abate at his death (03/19/09)
What it means: If at the time a worker reaches a settlement with a third party her workers' compensation claim was rejected, the bureau is not entitled to subrogation from the worker and third party.
Summary: A worker for a charity worked principally out of her home since the charity was closing its local office. The worker was driving to the office to acquire some needed materials when she was struck broadside by a truck. The worker made a claim against the truck driver's insurance policy, which was settled. The worker also sought and was awarded workers' compensation benefits although her claim was first denied. The bureau sought to recover sums the worker received from the bureau and the insurer for her injuries. The Ohio Court of Appeals held that the bureau was not entitled to subrogation.
The bureau argued that the worker was a "claimant" who was required to notify it of her claim with the insurer. After analyzing the state law, the court concluded that a claimant is a person presently eligible to receive compensation. The court said that at the time the worker settled with the insurer, her workers' compensation claim had been rejected. As a result, she had no right to compensation, so she was not a "claimant."
The bureau also argued that the purpose of subrogation law was to prevent a worker from enjoying a double recovery. The court explained that the worker had no duty to inform the bureau about her settlement with the insurer since she was not a "claimant." The court noted that the bureau may have recourse against the worker under another theory of recovery.
Michael Ready was killed in a construction accident and his Estate sued the general contractor and a sub-contractor for negligence. Those defendants filed third-party contribution complaints against Michael's employer. The Estate settled with the general contractor and the employer and proceeded to trial against the sub-contractor. The Estate sought to exclude evidence regarding the conduct of the general contractor and the employer because, under the Illinois Contribution Among Joint Tortfeasors Act, the jury does not apportion fault among non-parties but rather, the remaining defendant is entitled to a judicial set-off of the amount of the settlement. The defendant opposed the motion to exclude evidence, arguing that it retains the affirmative defense that the settling defendants were the sole proximate cause of the accident so that such evidence is relevant and material to the case.
In a prior ruling, the Illinois Supreme Court ruled that a jury may not apportion fault among settling defendants. Ready v. United, 232 Ill.2d 369 (2008). However, it left open the issue of whether evidence of the settling defendants' conduct should be excluded, whether the remaining defendant may argue that the settling defendants' negligence were the sole proximate cause of the accident and whether a "sole proximate cause" jury instruction is warranted.
In its most recent ruling, the Illinois Supreme Court ruled that, provided there is some evidence in the record to justify an instruction, the remaining defendant is entitled to present evidence that the negligence of the settled defendants was the sole proximate cause of the accident and is entitled to a jury verdict to that effect. (Having thus ruled, the Illinois Supreme Court went on to find that any error in the trial court by failing to allow the remaining defendant to present evidence of the negligence of the settled defendants was harmless error because there was ample evidence to support a finding of negligence against the remaining defendant. Accordingly, this remaining defendant won the appeal but lost the case!)
In a specially concurring opinion, Justice Garman points out that the ruling is inconsistent with the intent of the Illinois Code provision which provides joint and several liability against any defendant found to be 25% or greater of "the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third-party defendants who could have been sued by the plaintiff..." 110 Ill.Rev.Stat. 2-1117 (2010). Justice Garman points out that the effect of this statute is nullified if the jury cannot apportion fault to the settling defendants and the result may be unfair to a "deep pocket" defendant which refuses to settle out. The jury will have no occasion to apportion fault as required by the statute and, unless that remaining defendant prevails in its argument that it was not negligent and that the settling defendants were the sole proximate cause of the accident, it may face joint and several liability (after set-off for the amount of the settlement) for the entire verdict.
Illinois Supreme Court decision which clarifies the rights of the defendant to present evidence at trial regarding the culpability of settling defendants. In Ready v. United, docket no. 108910 (October 21, 2010), the Illinois Supreme Court ruled that non-settling defendants may present evidence, argument and jury instruction to support a viable claim that the settled defendants were the sole proximate cause of the accident. Illinois does not allow the jury to apportion fault to settled defendants. The culpability of settling defendants, however, can now be presented to the jury.
Practice Pointer: Be aware that when the co-defendants settle out, the remaining defendant has the right to present evidence of the settling defendants' culpability, based on the argument that their negligence was the sole proximate cause of the accident. At the same time, be aware that the remaining defendant runs the risk of joint and several liability if the jury apportions 25% or more of the fault to the remaining defendant.
Ruling: The Michigan Workers' Compensation Appellate Commission reversed the magistrate's decision awarding benefits to a store manager who left the work premises to purchase coffee for his employees and was injured on his way back to the store when tires slipped off a truck.
What it means: In Michigan, breaktime activities off the employer's premises, such as buying coffee, are not compensable in the absence of a work-related purpose.
Summary: The commission reversed the magistrate's decision awarding benefits to a store manager who left the work premises to purchase coffee for his employees and was injured on his way back to the store when tires slipped off a truck. The manager's supervisor indicated that the manager had a flexible work schedule and purchasing coffee for the employees was not part of the manager's job description. In reversing, the commission noted that the magistrate erred in finding that the manager purchased coffee to boost morale. He purchased coffee because his workers spoke imperfect English. The manager was required to provide evidence that connected the reason he left work to purchase coffee for the employees to his job as the store manager.
The commission rejected the magistrate's contention that because the injury occurred within 50 meters of the building in which the store was located, the injury occurred on an extension of the employer's premises. The law requires ownership, maintenance, or control, and none existed in this case.
Read more at the Risk & Insurance WorkersComp Forum homepage.
In overturning Kriener, the Supreme Court, retroactively, held that: 1) whether an impairment (not an injury) is objective is not determined by the existence of medical evidence, 2) whether a body function is important is subjective and must be determined on a case-by-case basis, and 3) whether an impairment affects a person's "general ability to lead his normal life" is determined by whether the impairment merely "influenced some of the person's power or skill, i.e., the person's capacity, to lead a normal life." How the standard jury instructions will be altered due to these holdings remains unclear.
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The plaintiffs, six employees of Cassens, alleged that Cassens, its TPA and a doctor engaged in an illegal scheme to deny them worker’s compensation benefits. They relied upon the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). Cassens moved to dismiss the RICO claim, which motion was denied. Cassens appealed to the US Court of Appeals (Six Circuit) which affirmed the denial of the Motion to Dismiss. Cassens appealed to the US Supreme Court, which refused to hear the appeal. Thus, the case was returned to the Federal District Court for further action and the court then ruled that the employee’s claim was within the exclusive remedy provision of the Michigan Worker’s Disability Compensation Act and also that the RICO statute was not applicable because the plaintiff failed to allege an “injury to business or property” as required by the Act.
Jarrells was injured at work and Travelers paid worker’s compensation benefits in the amount of $66,000. Jarrells filed a third party suit and was awarded approximately $509,000. Travelers demanded payment of its lien, reduced for Jarrells’comparative fault and attorney’s fees. Jarrells refused to pay the lien. Travelers intervened in the civil suit and the trial court held that the jury had already set off the lien from Jarrells’ award and that to make Jarrells pay Travelers would impose a double set off. The Court of Appeals reversed and entered judgment for Travelers, but the Supreme Court held that the trial court was correct.
At trial, the Indiana pattern jury instruction with regard to collateral sources was used, but the Supreme Court found that instruction to be ambiguous as it relates to worker’s compensation. The Supreme Court reasoned that the trial court was in the best position to determine what the jury intended and also that there was no way by which the jury could have determined the amount Jarrells would have to repay to Travelers when the comparative fault was taken into consideration.
D.B. is a Wisconsin resident hired by O.I.S.1 on August 16, 2003, as a private investigator to perform services wherever O.I.S. transacted business. On October 5, 2003, O.I.S. assigned D.B. to perform surveillance in two separate cases involving Indiana residents. On October 9, 2003, the vehicle D.B. was operating crossed the center line of the highway and caused a catastrophic head-on collision in Lakeland, Indiana. D.B. filed a worker's compensation claim against O.I.S. in Wisconsin in 2004. Ultimately, O.I.S., with two of its worker's compensation carriers, negotiated a compromise settlement in Wisconsin with D.B. for a total payment of $100,000.00. The compromise settlement was approved by the Wisconsin Department of Workforce Development, Worker's Compensation Division. Prior to the approval of the compromise settlement in Wisconsin, D.B. filed a second worker's compensation claim against O.I.S., this time in Indiana, for the same motor vehicle accident. O.I.S. had worker's compensation coverage through a different carrier in Indiana. After approval of the compromise settlement in Wisconsin, an issue arose in the Indiana claim regarding whether the claim should be dismissed because O.I.S. claimed that D.B. had submitted to jurisdiction in Wisconsin and had reached a settlement with O.I.S. in Wisconsin. O.I.S. filed a motion to dismiss the Indiana claim on May 14, 2009, alleging: (1) that "Indiana is not the state with preferred venue"; (2) that re-litigation of the claim in Indiana was barred by res judicata; and (3) the defensive use of collateral estoppel. Appellant's App. at 11-12. D.B. filed a response to the motion to dismiss claiming that the compromise settlements reached with O.I.S.'s Wisconsin worker's compensation carriers included provisions whereby the carriers denied liability and that D. B. had reserved the right to proceed against O.I.S.'s Indiana worker's compensation carrier. Read more
Howell was injured at work in June, 2005 and Eastern Alliance was the worker’s compensation insurance carrier. Howell claimed an aggravation of the same injury at work in February, 2007 and Chubb was the worker’s compensation insurance carrier. Neither Eastern Alliance nor Chubb paid the second claim, each contending that the other was responsible for it. The Board awarded damages for a lack of due diligence against Eastern Alliance in the amount of $6,667 and against Chubb in the amount of $13,333. Eastern Alliance appealed; Chubb did not. The evidence showed that Eastern Alliance had received the medical records and had a good faith belief that those records established that the plaintiff’s problem was due to the second accidental aggravation of her condition and was thus Chubb’s responsibility. Even so, Eastern Alliance offered to split the claim with Chubb subject to a later determination as to which of the insurance carriers was responsible. Chubb refused and so neither carrier paid for the claim.
The Court of Appeals found that Eastern Alliance’s actions and their proposal to resolve the dispute showed due diligence and therefore the penalty against Eastern Alliance was reversed with instructions to the Board to determine whether the $6,667 should be assessed against Chubb.
Abbott v. Mainsource Financial Group –
The employee had a compensable injury when she was confronted by a back robber. She suffered cardiac and psychological symptoms for which the employer provided treatment. The cardiac condition returned to normal and the psychological condition resulted in a 5% permanent partial impairment rating which the employer paid. The attending physician prescribed Lipitor and Coreq, both of which were intended to prevent a future heart attack. The attending physician also indicated that any future cardiac symptoms would likely be precipitated by another stressful event.
The Board found that the employer was not responsible to pay for the medications because they were not prescribed to limit or reduce the impairment, since she had no impairment with regard to the heart. The employee appealed and the Court of Appeals affirmed, stating also that since any future cardiac symptoms would be the result of a new stressful event, the medications prescribed to reduce the reaction to such an event were not required because of the compensable event.
Smith v. Champion Trucking-
Smith was employed by Champion and was injured at work. Champion paid $4,342.42 in medical expenses. The injury was caused by a third party and Smith settled with the third party for $10,342. A few weeks later, Smith was assigned a PPI rating worth $26,500 in additional compensation and demanded that from Champion. Champion claimed that the third party settlement was a complete bar to an additional worker’s compensation recovery. The Board agreed with Champion, the Court of Appeals reversed holding that the termination provision of the Act did not apply to cases pending at the Board, and the Supreme Court reversed the Court of Appeals, holding that the third party settlement released the third party and the Worker’s Compensation Act clearly provides that a settlement with a third party without the employer’s consent bars the worker’s compensation claim.
Washington Township v. Beltway-
Washington Township underpaid Beltway’s medical billing based on a review by a billing review service. Beltway filed an Application with the Board claiming that the payment was not consistent with Indiana law. The Board held that Washington Township had the burden of proving that the amount It paid was consistent with Indiana law; that is, at the 80th percentile of all charges for like service in the same community. The Court of Appeals agreed with the Board and the Supreme Court affirmed that decision.
Tony v. Elkhart County-
Tony was injured while working for Elkhart County. He returned to work with restrictions, but claimed that his restrictions were being ignored and that his complaints about that resulted in his being told not to complain anymore and his co-workers being told that he was a “faker”. Tony quit his job and filed a civil suit against Elkhart County claiming that its actions amounted to a constructive discharge in retaliation for his making a worker’s compensation claim. The Trial Court dismissed his case, but the Court of Appeals reversed that decision and held that in Frampton v. Central Indiana Gas Co., a discharge from employment in retaliation for the exercise of a statutory right was held to be an exception to the employment at will doctrine and Elkhart County’s actions could be held to have been so intolerable that Tony had no other option but to resign, therefore creating constructive retaliatory discharge.
Barrett v. City of Brazil-
Barrett was killed by a third party in a work related accident. The third party was ordered to pay $4,350 in restitution to Barrett’s widow. The insurance company for the third party vehicle tendered its $50,000 policy limits, and Barrett’s insurance company tendered its $50,000 underinsured motorist policy limits. Barrett’s widow filed a worker’s compensation case and City of Brazil asked the Board to dismiss the the claim based on the fact that $104,350 had been paid on behalf of the third party and the Board dismissed the case. The Court of Appeals reversed, holding that the payments were other than by agreement. They were judgments for a lesser sum than the amount of the workers compensation payable and therefore Barrett’s widow could pursue the worker’s compensation case by assigning the rights under the judgments to City of Brazil.
The single hearing member of the Indiana Worker’s Compensation Board awarded death benefits to the widow of Juan Hernandez. This decision was affirmed by the full Indiana Worker’s Compensation Board. The employer appealed the decision and the Court of Appeals affirmed the Board’s findings. The issue was whether the Board erred in finding that Hernandez’ death was a death by accident arising out of and in the course of his employment with Wright. Full Story
IND. DECISIONS - SUPREME COURT DECIDES ONE TODAY
In Kohlmeyer v. Second Injury Fund, a 7-page, 5-0 decision, Justice Dickson writes: Indiana's statutory worker's compensation scheme enables certain totally disabled workers who have exhausted the maximum benefits from their employers to seek additional compensation from the Second Injury Fund. Full Story
COURT RULES ON WORKER'S COMP DISPUTE
The Indiana Court of Appeals reversed a finding that a company had acted in bad faith in denying workers' compensation benefits because there was a dispute over who should pay the benefits. The appellate court also encouraged employers to come to an early agreement to share treatment costs pending a liability determination to avoid a situation similar to the one in the instant case. Full Story
THAT'S NOT AMORE-COURT DELIVERS DEEP DISH TO EMPLOYER
A recent decision from the Court of Appeals is causing great concern among employers and their attorneys because, if upheld, it is likely to greatly increase your medical costs and the claims you have to cover. The case, Boston Gourmet Pizza v. Childers, 910 N.E.2d 809 (Ind. Ct. App. 2009), involved an obese employee who had a back injury. Full Story
NATION’S TRANSPORTATION V. GEORGE BUJAROSKI
Bujaroski was a truck driver who leased his truck to Nation’s. The lease referred to Bujaroski as an independent contractor. Bujaroski was killed in an accident. The single hearing member found Bujaroski to be an employee of Nation’s and awarded his widow worker’s compensation benefits. The full Board adopted the single hearing member’s finding on a 3/3 vote. One of the full Board members was unavailable. On appeal, Nation’s contended that a 3/3 tie meant that Bujaroski did not carry his burden of proof since the finding in his favor was not by a majority of the Board. Full Story
WASHINGTON TOWNSHIP FIRE DEPARTMENT V. BELTWAY SURGERY CENTER
An employee of Washington Township received medical services from Beltway for a work related injury. Washington Township had the bill reviewed by Mednet who “repriced” the bill. Washington Township paid the “repriced” amount and Beltway filed a provider fee claim for the unpaid portion0. Full Story
BOYD VANDENBERG V. SNEDEGAR CONSTRUCTION
Vandenberg attended the company Christmas party and drank too much. His boss was not critical of that and indicated that he would call Vandenberg’s wife to pick him up. Vandenberg attempted to leave anyway and while doing so bumped his company truck into another vehicle. Full Story
Case name: Davis v. Illinois Department of Children and Family Services, 19 ILWCLB 189 (Ill. W.C. Comm. 2011)
Ruling: The Illinois Workers' Compensation Commission awarded benefits to a worker who sustained injuries when she fell in the restroom at work because her employment was a contributing factor in the accident.
What it means: In Illinois, a worker's injuries arise out of her employment if her employment was a contributing factor in the accident.
Summary: A child welfare specialist and call floor worker's employment required her to take incoming phone calls concerning abused and neglected children. The call floor was understaffed. She took her designated break to use the restroom. While she was washing her hands in the restroom, she heard a coworker call out her name and thought she was needed for an urgent call. As she turned around to respond, she ran into the garbage can located in the restroom, which began to fall. She attempted to grab the garbage can to keep it from falling, but she fell to the floor and injured her spine and knee. The arbitrator found the claimant's accident arose out of and in the course of her employment and awarded benefits. The commission affirmed the arbitrator's decision.
The commission said it was undisputed that the accident occurred in the course of the claimant's employment, as she had gone to the restroom for her personal comfort during her designated break. The evidence showed that her fall was due to her response to the coworker's call for her. Thus, some phase of the worker's employment was a contributing factor in the accident.
IL: Comp doesn't cover worker's collision with tree in employer's parking lot
In Illinois, an employee is not entitled to benefits if his activities did not expose him to an increased risk of injury.
What it means: In Illinois, an employee is not entitled to benefits if his activities did not expose him to an increased risk of injury.
Summary: A building maintenance worker for a university was pulling into a parking lot that was close to the building where he worked. The lot was owned by the university and could only be used by faculty and staff during the week. He said it was foggy when he drove to work, and as he pulled into the parking lot, he bent down to find the defogger button. He believed he "cranked his wheel" and ran into a tree that was inside the lot. His head struck the windshield, and he alleged head, neck, and arm injuries. He admitted to drinking two to three beers at least an hour and a half before the accident. The commission found the claimant's accident was not compensable.
The commission found that the worker's use of the university's parking lot did not expose him to an increased risk of injury. The worker acknowledged he was not required to park in any particular spot in the lot. The commission concluded that the worker failed to prove the accident arose out of his employment.
Indiana Case Summary:
Ruling: The Indiana Court of Appeals held that a worker could reduce his lien by attorney's fees and costs, but not in the same proportion that his full recovery was reduced.
What it means: In Indiana, an injured worker who settles with a third party for substantially less than the damages value of his claim without the consent of his employer or the workers' compensation carrier can reduce his lien by attorney's fees and costs.
Summary: A worker for a business suffered third degree burns to his hands and face while performing maintenance on a slag processing system at a steel company. The business's workers' compensation carrier paid him temporary total disability benefits and medical expenses. He sued the steel company and one of its supervisors. The parties reached a settlement agreement for substantially less than the damages value of his claim. The agreement provided that that the worker was responsible for paying all liens, including the workers' compensation lien for the benefits received from the business. The agreement was reached without the consent of the business or its carrier. The worker sought to reduce his workers' compensation subrogation lien. The Indiana Court of Appeals held that the worker could reduce the lien by attorney's fees and costs.
The court explained that if an injured worker settles with a third party for an amount more than his workers' compensation benefits, he must reimburse the workers' compensation payor and keep the remainder of the settlement, relinquishing his right to the compensation benefits.
The court said that the worker was barred from seeking a lien reduction because he settled the case without the business's consent. The worker argued that he set aside the lien amount in an escrow account. However, the court said this did not protect the business by court order, as required by state law. Therefore, the lien could not be reduced in the same proportion that the worker's full recovery was reduced.
Ohio Court
Case name: Channels v. Bureau of Workers' Compensation, et al., No. 10JE16 (Ohio Ct. App. 03/14/11)
Ruling: The Ohio Court of Appeals held that a worker's injury did not occur while in the course of and arising out of his participation in a vocational rehabilitation program.
What it means: In Ohio, a worker injured at home when he returned to continue a job search through a vocational rehabilitation program is not entitled to compensation.
Read more at the Risk & Insurance WorkersComp Forum homepage.
State of Ohio Bureau of Workers' Compensation v. Dernier, No. L-10-1126 (Ohio Ct. App. 01/14/11).
Ruling: The Ohio Court of Appeals held that the Bureau of Workers' Compensation was not entitled to subrogation from a worker or a third-party insurer.Related Coverage
Deputy sheriff can't secure medical benefits for back problems (11/16/09)
Employee entitled to attorney's fees in appeal, but not as a sanction (09/28/09)
Witness discredits claimant's contention that he was assaulted by coworker (05/28/09)
First employer on hook for later surgery costs (08/23/10)
Coal miner's claim doesn't abate at his death (03/19/09)
What it means: If at the time a worker reaches a settlement with a third party her workers' compensation claim was rejected, the bureau is not entitled to subrogation from the worker and third party.
Summary: A worker for a charity worked principally out of her home since the charity was closing its local office. The worker was driving to the office to acquire some needed materials when she was struck broadside by a truck. The worker made a claim against the truck driver's insurance policy, which was settled. The worker also sought and was awarded workers' compensation benefits although her claim was first denied. The bureau sought to recover sums the worker received from the bureau and the insurer for her injuries. The Ohio Court of Appeals held that the bureau was not entitled to subrogation.
The bureau argued that the worker was a "claimant" who was required to notify it of her claim with the insurer. After analyzing the state law, the court concluded that a claimant is a person presently eligible to receive compensation. The court said that at the time the worker settled with the insurer, her workers' compensation claim had been rejected. As a result, she had no right to compensation, so she was not a "claimant."
The bureau also argued that the purpose of subrogation law was to prevent a worker from enjoying a double recovery. The court explained that the worker had no duty to inform the bureau about her settlement with the insurer since she was not a "claimant." The court noted that the bureau may have recourse against the worker under another theory of recovery.
Read more at the Risk & Insurance WorkersComp Forum homepage.
Illinois Court
Ready v. United -Michael Ready was killed in a construction accident and his Estate sued the general contractor and a sub-contractor for negligence. Those defendants filed third-party contribution complaints against Michael's employer. The Estate settled with the general contractor and the employer and proceeded to trial against the sub-contractor. The Estate sought to exclude evidence regarding the conduct of the general contractor and the employer because, under the Illinois Contribution Among Joint Tortfeasors Act, the jury does not apportion fault among non-parties but rather, the remaining defendant is entitled to a judicial set-off of the amount of the settlement. The defendant opposed the motion to exclude evidence, arguing that it retains the affirmative defense that the settling defendants were the sole proximate cause of the accident so that such evidence is relevant and material to the case.
In a prior ruling, the Illinois Supreme Court ruled that a jury may not apportion fault among settling defendants. Ready v. United, 232 Ill.2d 369 (2008). However, it left open the issue of whether evidence of the settling defendants' conduct should be excluded, whether the remaining defendant may argue that the settling defendants' negligence were the sole proximate cause of the accident and whether a "sole proximate cause" jury instruction is warranted.
In its most recent ruling, the Illinois Supreme Court ruled that, provided there is some evidence in the record to justify an instruction, the remaining defendant is entitled to present evidence that the negligence of the settled defendants was the sole proximate cause of the accident and is entitled to a jury verdict to that effect. (Having thus ruled, the Illinois Supreme Court went on to find that any error in the trial court by failing to allow the remaining defendant to present evidence of the negligence of the settled defendants was harmless error because there was ample evidence to support a finding of negligence against the remaining defendant. Accordingly, this remaining defendant won the appeal but lost the case!)
In a specially concurring opinion, Justice Garman points out that the ruling is inconsistent with the intent of the Illinois Code provision which provides joint and several liability against any defendant found to be 25% or greater of "the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third-party defendants who could have been sued by the plaintiff..." 110 Ill.Rev.Stat. 2-1117 (2010). Justice Garman points out that the effect of this statute is nullified if the jury cannot apportion fault to the settling defendants and the result may be unfair to a "deep pocket" defendant which refuses to settle out. The jury will have no occasion to apportion fault as required by the statute and, unless that remaining defendant prevails in its argument that it was not negligent and that the settling defendants were the sole proximate cause of the accident, it may face joint and several liability (after set-off for the amount of the settlement) for the entire verdict.
Illinois Supreme Court decision which clarifies the rights of the defendant to present evidence at trial regarding the culpability of settling defendants. In Ready v. United, docket no. 108910 (October 21, 2010), the Illinois Supreme Court ruled that non-settling defendants may present evidence, argument and jury instruction to support a viable claim that the settled defendants were the sole proximate cause of the accident. Illinois does not allow the jury to apportion fault to settled defendants. The culpability of settling defendants, however, can now be presented to the jury.
Practice Pointer: Be aware that when the co-defendants settle out, the remaining defendant has the right to present evidence of the settling defendants' culpability, based on the argument that their negligence was the sole proximate cause of the accident. At the same time, be aware that the remaining defendant runs the risk of joint and several liability if the jury apportions 25% or more of the fault to the remaining defendant.
Michigan Court
Case name: Suarez v. Michigan Multi King, Inc., 25 MIWCLR 3 (Mich. W.C.A.C. 2011)Ruling: The Michigan Workers' Compensation Appellate Commission reversed the magistrate's decision awarding benefits to a store manager who left the work premises to purchase coffee for his employees and was injured on his way back to the store when tires slipped off a truck.
What it means: In Michigan, breaktime activities off the employer's premises, such as buying coffee, are not compensable in the absence of a work-related purpose.
Summary: The commission reversed the magistrate's decision awarding benefits to a store manager who left the work premises to purchase coffee for his employees and was injured on his way back to the store when tires slipped off a truck. The manager's supervisor indicated that the manager had a flexible work schedule and purchasing coffee for the employees was not part of the manager's job description. In reversing, the commission noted that the magistrate erred in finding that the manager purchased coffee to boost morale. He purchased coffee because his workers spoke imperfect English. The manager was required to provide evidence that connected the reason he left work to purchase coffee for the employees to his job as the store manager.
The commission rejected the magistrate's contention that because the injury occurred within 50 meters of the building in which the store was located, the injury occurred on an extension of the employer's premises. The law requires ownership, maintenance, or control, and none existed in this case.
Read more at the Risk & Insurance WorkersComp Forum homepage.
McCormick v. Carrier -
In overturning Kriener, the Supreme Court, retroactively, held that: 1) whether an impairment (not an injury) is objective is not determined by the existence of medical evidence, 2) whether a body function is important is subjective and must be determined on a case-by-case basis, and 3) whether an impairment affects a person's "general ability to lead his normal life" is determined by whether the impairment merely "influenced some of the person's power or skill, i.e., the person's capacity, to lead a normal life." How the standard jury instructions will be altered due to these holdings remains unclear.
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Federal Court
The plaintiffs, six employees of Cassens, alleged that Cassens, its TPA and a doctor engaged in an illegal scheme to deny them worker’s compensation benefits. They relied upon the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). Cassens moved to dismiss the RICO claim, which motion was denied. Cassens appealed to the US Court of Appeals (Six Circuit) which affirmed the denial of the Motion to Dismiss. Cassens appealed to the US Supreme Court, which refused to hear the appeal. Thus, the case was returned to the Federal District Court for further action and the court then ruled that the employee’s claim was within the exclusive remedy provision of the Michigan Worker’s Disability Compensation Act and also that the RICO statute was not applicable because the plaintiff failed to allege an “injury to business or property” as required by the Act.
Indiana Supreme Court
Travelers v. Jarrells –Jarrells was injured at work and Travelers paid worker’s compensation benefits in the amount of $66,000. Jarrells filed a third party suit and was awarded approximately $509,000. Travelers demanded payment of its lien, reduced for Jarrells’comparative fault and attorney’s fees. Jarrells refused to pay the lien. Travelers intervened in the civil suit and the trial court held that the jury had already set off the lien from Jarrells’ award and that to make Jarrells pay Travelers would impose a double set off. The Court of Appeals reversed and entered judgment for Travelers, but the Supreme Court held that the trial court was correct.
At trial, the Indiana pattern jury instruction with regard to collateral sources was used, but the Supreme Court found that instruction to be ambiguous as it relates to worker’s compensation. The Supreme Court reasoned that the trial court was in the best position to determine what the jury intended and also that there was no way by which the jury could have determined the amount Jarrells would have to repay to Travelers when the comparative fault was taken into consideration.
Indiana Courts of Appeal
D.B., Appellant-Claimant, v. A.C., Appellee-Employer. No. 93A02-1010-EX-1172. Court of Appeals of Indiana
FACTS AND PROCEDURAL HISTORYD.B. is a Wisconsin resident hired by O.I.S.1 on August 16, 2003, as a private investigator to perform services wherever O.I.S. transacted business. On October 5, 2003, O.I.S. assigned D.B. to perform surveillance in two separate cases involving Indiana residents. On October 9, 2003, the vehicle D.B. was operating crossed the center line of the highway and caused a catastrophic head-on collision in Lakeland, Indiana. D.B. filed a worker's compensation claim against O.I.S. in Wisconsin in 2004. Ultimately, O.I.S., with two of its worker's compensation carriers, negotiated a compromise settlement in Wisconsin with D.B. for a total payment of $100,000.00. The compromise settlement was approved by the Wisconsin Department of Workforce Development, Worker's Compensation Division. Prior to the approval of the compromise settlement in Wisconsin, D.B. filed a second worker's compensation claim against O.I.S., this time in Indiana, for the same motor vehicle accident. O.I.S. had worker's compensation coverage through a different carrier in Indiana. After approval of the compromise settlement in Wisconsin, an issue arose in the Indiana claim regarding whether the claim should be dismissed because O.I.S. claimed that D.B. had submitted to jurisdiction in Wisconsin and had reached a settlement with O.I.S. in Wisconsin. O.I.S. filed a motion to dismiss the Indiana claim on May 14, 2009, alleging: (1) that "Indiana is not the state with preferred venue"; (2) that re-litigation of the claim in Indiana was barred by res judicata; and (3) the defensive use of collateral estoppel. Appellant's App. at 11-12. D.B. filed a response to the motion to dismiss claiming that the compromise settlements reached with O.I.S.'s Wisconsin worker's compensation carriers included provisions whereby the carriers denied liability and that D. B. had reserved the right to proceed against O.I.S.'s Indiana worker's compensation carrier. Read more
Howell was injured at work in June, 2005 and Eastern Alliance was the worker’s compensation insurance carrier. Howell claimed an aggravation of the same injury at work in February, 2007 and Chubb was the worker’s compensation insurance carrier. Neither Eastern Alliance nor Chubb paid the second claim, each contending that the other was responsible for it. The Board awarded damages for a lack of due diligence against Eastern Alliance in the amount of $6,667 and against Chubb in the amount of $13,333. Eastern Alliance appealed; Chubb did not. The evidence showed that Eastern Alliance had received the medical records and had a good faith belief that those records established that the plaintiff’s problem was due to the second accidental aggravation of her condition and was thus Chubb’s responsibility. Even so, Eastern Alliance offered to split the claim with Chubb subject to a later determination as to which of the insurance carriers was responsible. Chubb refused and so neither carrier paid for the claim.
The Court of Appeals found that Eastern Alliance’s actions and their proposal to resolve the dispute showed due diligence and therefore the penalty against Eastern Alliance was reversed with instructions to the Board to determine whether the $6,667 should be assessed against Chubb.
Abbott v. Mainsource Financial Group –
The employee had a compensable injury when she was confronted by a back robber. She suffered cardiac and psychological symptoms for which the employer provided treatment. The cardiac condition returned to normal and the psychological condition resulted in a 5% permanent partial impairment rating which the employer paid. The attending physician prescribed Lipitor and Coreq, both of which were intended to prevent a future heart attack. The attending physician also indicated that any future cardiac symptoms would likely be precipitated by another stressful event.
The Board found that the employer was not responsible to pay for the medications because they were not prescribed to limit or reduce the impairment, since she had no impairment with regard to the heart. The employee appealed and the Court of Appeals affirmed, stating also that since any future cardiac symptoms would be the result of a new stressful event, the medications prescribed to reduce the reaction to such an event were not required because of the compensable event.
Smith v. Champion Trucking-
Smith was employed by Champion and was injured at work. Champion paid $4,342.42 in medical expenses. The injury was caused by a third party and Smith settled with the third party for $10,342. A few weeks later, Smith was assigned a PPI rating worth $26,500 in additional compensation and demanded that from Champion. Champion claimed that the third party settlement was a complete bar to an additional worker’s compensation recovery. The Board agreed with Champion, the Court of Appeals reversed holding that the termination provision of the Act did not apply to cases pending at the Board, and the Supreme Court reversed the Court of Appeals, holding that the third party settlement released the third party and the Worker’s Compensation Act clearly provides that a settlement with a third party without the employer’s consent bars the worker’s compensation claim.
Washington Township v. Beltway-
Washington Township underpaid Beltway’s medical billing based on a review by a billing review service. Beltway filed an Application with the Board claiming that the payment was not consistent with Indiana law. The Board held that Washington Township had the burden of proving that the amount It paid was consistent with Indiana law; that is, at the 80th percentile of all charges for like service in the same community. The Court of Appeals agreed with the Board and the Supreme Court affirmed that decision.
Tony v. Elkhart County-
Tony was injured while working for Elkhart County. He returned to work with restrictions, but claimed that his restrictions were being ignored and that his complaints about that resulted in his being told not to complain anymore and his co-workers being told that he was a “faker”. Tony quit his job and filed a civil suit against Elkhart County claiming that its actions amounted to a constructive discharge in retaliation for his making a worker’s compensation claim. The Trial Court dismissed his case, but the Court of Appeals reversed that decision and held that in Frampton v. Central Indiana Gas Co., a discharge from employment in retaliation for the exercise of a statutory right was held to be an exception to the employment at will doctrine and Elkhart County’s actions could be held to have been so intolerable that Tony had no other option but to resign, therefore creating constructive retaliatory discharge.
Barrett v. City of Brazil-
Barrett was killed by a third party in a work related accident. The third party was ordered to pay $4,350 in restitution to Barrett’s widow. The insurance company for the third party vehicle tendered its $50,000 policy limits, and Barrett’s insurance company tendered its $50,000 underinsured motorist policy limits. Barrett’s widow filed a worker’s compensation case and City of Brazil asked the Board to dismiss the the claim based on the fact that $104,350 had been paid on behalf of the third party and the Board dismissed the case. The Court of Appeals reversed, holding that the payments were other than by agreement. They were judgments for a lesser sum than the amount of the workers compensation payable and therefore Barrett’s widow could pursue the worker’s compensation case by assigning the rights under the judgments to City of Brazil.
The single hearing member of the Indiana Worker’s Compensation Board awarded death benefits to the widow of Juan Hernandez. This decision was affirmed by the full Indiana Worker’s Compensation Board. The employer appealed the decision and the Court of Appeals affirmed the Board’s findings. The issue was whether the Board erred in finding that Hernandez’ death was a death by accident arising out of and in the course of his employment with Wright. Full Story
FIRED EMPLOYEE WANTS COMP: SHOULD HE GET IT?
An employee who was receiving workers’ comp was assigned to light-duty work. While on the job, the employee violated the company’s conduct policy by destroying company property. Full StoryCOURT SAYS GOOD FAITH DISPUTE IS NOT BAD
In the case Ag One Co-Op & Trane Co. v. Scott, the Court of Appeals took up the question of whether there could be a finding of bad faith claims handling against the employer if the Worker's Compensation Board of Indiana had found that the employer had properly denied the employee's claim. Full StoryIND. DECISIONS - SUPREME COURT DECIDES ONE TODAY
In Kohlmeyer v. Second Injury Fund, a 7-page, 5-0 decision, Justice Dickson writes: Indiana's statutory worker's compensation scheme enables certain totally disabled workers who have exhausted the maximum benefits from their employers to seek additional compensation from the Second Injury Fund. Full Story
COURT RULES ON WORKER'S COMP DISPUTE
The Indiana Court of Appeals reversed a finding that a company had acted in bad faith in denying workers' compensation benefits because there was a dispute over who should pay the benefits. The appellate court also encouraged employers to come to an early agreement to share treatment costs pending a liability determination to avoid a situation similar to the one in the instant case. Full Story
THAT'S NOT AMORE-COURT DELIVERS DEEP DISH TO EMPLOYER
A recent decision from the Court of Appeals is causing great concern among employers and their attorneys because, if upheld, it is likely to greatly increase your medical costs and the claims you have to cover. The case, Boston Gourmet Pizza v. Childers, 910 N.E.2d 809 (Ind. Ct. App. 2009), involved an obese employee who had a back injury. Full Story
NATION’S TRANSPORTATION V. GEORGE BUJAROSKI
Bujaroski was a truck driver who leased his truck to Nation’s. The lease referred to Bujaroski as an independent contractor. Bujaroski was killed in an accident. The single hearing member found Bujaroski to be an employee of Nation’s and awarded his widow worker’s compensation benefits. The full Board adopted the single hearing member’s finding on a 3/3 vote. One of the full Board members was unavailable. On appeal, Nation’s contended that a 3/3 tie meant that Bujaroski did not carry his burden of proof since the finding in his favor was not by a majority of the Board. Full Story
WASHINGTON TOWNSHIP FIRE DEPARTMENT V. BELTWAY SURGERY CENTER
An employee of Washington Township received medical services from Beltway for a work related injury. Washington Township had the bill reviewed by Mednet who “repriced” the bill. Washington Township paid the “repriced” amount and Beltway filed a provider fee claim for the unpaid portion0. Full Story
BOYD VANDENBERG V. SNEDEGAR CONSTRUCTION
Vandenberg attended the company Christmas party and drank too much. His boss was not critical of that and indicated that he would call Vandenberg’s wife to pick him up. Vandenberg attempted to leave anyway and while doing so bumped his company truck into another vehicle. Full Story
