The Erosion of the Off-Premises Lunch Defense

The Compensation Review Board (CRB) in DeForest v. Yale-New Haven Hospital, 6075 CRB-3-16-2 (April 6, 2017) issued a ruling that has continued the erosion of the off-premises lunch defense. In the late 1990s, injuries that occurred during an off-premises lunch break were typically not compensable based on the ground that such activity did not occur in the course and scope of employment. See Kaplan v. State of Connecticut/Department of Health Services, 2012 CRB-1-94-4 (September 11, 1995). The continued erosion of
Continue reading...

Sure, Work Can be Stressful. But Can that Result in a Workers’ Compensation Claim in New York?

Everyone has experienced stressful times while at work, whether they were tight deadlines, arguments with a coworker, or dealing with difficult customers. Can that stress, and any resulting psychological issues, be considered a compensable Workers’ Compensation claim in New York State? The answer, not surprisingly, is that some, but not all, psychological injuries are compensable. It has been held that undue or excessive work-related stress and anxiety may constitute an accident under the NYS Workers Compensation Law. Section 2(7) of
Continue reading...

To Litigate? Or to Split? That is the Question

Some of the most commonly litigated issues in Workers’ Compensation include degree of temporary disability and permanency (classification or schedule loss of use). More often than not, treating doctors and IMEs do not agree on issues concerning degree of disability or schedule loss of use. The question then arises as to whether the parties should litigate the issue through depositions of the doctors, or whether attempts should be made to negotiate a “split” of the disability rate or SLU award.
Continue reading...

A Last-Second Win for Missouri Employers

With the 2017 legislative session winding down, the Missouri legislature pulled out a big win for employers with several significant changes to the Missouri Workers’ Compensation Law and the Missouri Human Rights Act. Senate Bill 66 makes several critical changes to the Workers’ Compensation Law in response to recent Missouri Supreme Court decisions that created some uncertainty for employers. Senate Bill 43, on the other hand, raises the burden of proof in employment discrimination cases and should shut the door
Continue reading...

Parsons Presumption Still Applicable to Same Body Part

The North Carolina Court of Appeals has handed down a ruling that clarifies and potentially expands the “Parsons presumption,” a North Carolina precedent that posits a relationship between an original work-related injury and additional treatments required. This new ruling, in the case of Bell v. Goodyear, establishes that when a court accepts an injured body part as compensable, subsequent injury to the same body part is subject to the Parsons presumption, even if the exact location of the subsequent injury
Continue reading...

Lost in Translation: Proposed Changes to Interpretation for Non-English Speaking Claimants

The Workers’ Protection Coalition released a study that concludes claimants who need English language translation are not being sufficiently serviced by the current procedures of the New York Workers’ Compensation Board (WCB). Flaws in these procedures could expose claims to capricious appeals by claimant’s counsel. Over the course of seven months, the Workers’ Protection Coalition observed approximately 500 hearings throughout New York City. The results found that 88 hearings had a claimant who required interpretive services. Of those 88, at least
Continue reading...

Post-Accident Drug Testing: Part 7 — North Carolina

After every accident involving potential human error, North Carolina employers should perform a drug test. The test must enable the defense attorney to prove not only the presence of an intoxicating substance, but the concentration. Most simple urine drug screens do not provide that information. The North Carolina Workers’ Compensation Act makes “intoxication” by illegal drugs, or legal drugs not taken as prescribed, a defense to a claim for an injury by accident. But “intoxication” is harder to prove than
Continue reading...

Post-Accident Drug Testing: Part 6 — Pennsylvania

Under the Pennsylvania Workers’ Compensation Act, Act 44 excludes from coverage injuries that would not have occurred but for the intoxication of the employee. Mahon v. WCAB (Expert Window Cleaning), 835 A.2d 420 (Pa.Cmwlth. 2003). The burden of proof is on the employer and is two-pronged. First, the employer must establish that the employee was intoxicated either from drugs or alcohol. Second, the employer must establish that the use either caused the injury or was a major and very substantial
Continue reading...

Post-Accident Drug Testing: Part 5 — Connecticut

If we assume that the Occupational Safety and Health Administration’s (OSHA) commentary that mandatory post-accident drug testing will deter the reporting of workplace safety incidents, it will make it difficult for the employer/respondent to document and collect evidence to properly investigate the claim. In Connecticut, if a claimant’s intoxication, whether by alcohol or legal/illegal drugs, is a substantial contributing factor in causing a work place accident, then the accident is not compensable. See C.G.S. § 31-275(1)(C). The respondent is required
Continue reading...

Post-Accident Drug Testing: Part 4 — Illinois

No compensation is owed under the Illinois Workers’ Compensation Act if: (i) the employee’s intoxication proximately caused the injury, or (ii) the employee was so intoxicated at the time of the accident that the intoxication was a departure from the employment. Evidence of the concentration of alcohol, cannabis, a controlled substance, or an intoxicating compound in the employee’s blood, breath, or urine at the time the accident can be used as proof that the employee was intoxicated at the time
Continue reading...