Conflict Over Neutral Risk Work Injuries

Neutral risk injuries have become a contentious topic in Illinois Workers’ Compensation law. In Illinois Senate Bill 12, the legislature attempted to codify recent trends that courts have taken by calling for an analysis of whether an injured worker’s employment quantitatively or qualitatively contributes to a neutral risk to determine a compensable injury. The First District Appellate Court of Illinois applied these factors in Noonan v. Illinois Workers’ Compensation Commission and determined that a neutral risk is compensable where the employee proves he was qualitatively …

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Revisiting Apportionment for Private Sector Injuries in the District of Columbia

On May 2, 2019, the Compensation Review Board (CRB) issued a decision opening the door for apportionment claims in private sector injuries in the District of Columbia. James M. Lyles, Jr. v. Howard University Hospital, (CRB No. 17-036). This decision was in response to a remand from the D.C. Court of Appeals directing the CRB to revisit their interpretation of D.C. Code § 32-1508 (6).

The crux of the analysis centers around the changes to the Act in 1998 which eliminated the Special Fund …

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SLU or Not to SLU- That is the Question

Claimants may be entitled to schedule loss of use (SLU) awards for permanent injuries sustained to arms, legs, hands, feet, eyes, fingers, and toes, known as “schedule injuries.” Injuries sustained to the head, neck, and back, known as “nonscheduled injuries,” are typically subject to classification of a permanent partial disability (PPD) or permanent total disability (PTD), based on loss of wage earning capacity. An issue arises when a claimant has injuries to schedule and nonscheduled sites.

In 2018, the New York State Supreme Court Appellate …

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Getting the Most From the Labor Market Attachment

In New York State, the minimum requirements for the labor market attachment provide a truly low hurdle for a claimant to jump over. Rather than actually attempt to find gainful employment, a claimant usually needs to simply go through the motions: go to a one-stop career center a few times, apply to a handful of jobs each week online, or otherwise spend less than an hour each week trying to find work. So long as there is at least a colorable attempt to find work, …

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Maryland Statutes of Limitation are Not Liberally Construed in Favor of the Claimant

Bonnie Miller v. Jacobs Technology, Inc.[1] , an unreported case handed down from the Court of Special Appeals earlier this year is unequivocal in its holding that the all statutes of limitation in the Workers’ Compensation Act will not be liberally construed in favor of the claimant.

In Bonnie Miller v. Jacobs Technology, Inc., the claimant sustained an accidental injury on September 29, 2011 and filed a claim with the commission in October 2011. The claim was not contested by the employer and an …

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One Missing IME, Too Many

I recently attended a hearing that was scheduled pursuant to claimant’s RFA-1, requesting reinstatement of awards. You’re probably wondering, why were awards suspended in the first place? Because claimant had missed three scheduled independent medical examinations (IMEs)! She also did not have current medical evidence of a further causally related disability at the last hearing. The prior notice of decision read wonderfully, “suspension is effective until such time that the claimant produces up to date evidence of disability and indicates a willingness to attend the …

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Is the Labor Market Attachment Forever Over?

As of 2017, a claimant with a permanent partial disability (PPD) who is entitled to awards when they are classified does not have to demonstrate ongoing labor market attachment (LMA). The mentality since the change in 2017 has been that if a claimant is entitled at classification then there is no way to bring up LMA in the future.

Prior to the 2017 reform, from December 23, 2010 through February 1, 2012, the Third Department Decision in the matter of Zamora (12/23/10), controlled labor market …

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New York Court of Appeals Caps the “Additional Compensation” Awarded to Claimants Who Exhaust a Schedule Loss of Use Award

On December 11, 2018, the New York State Court of Appeals decided Matter of Mancini v. Office of Children and Family Services, 2018 N.Y. Slip. Op. 08425, 2018 WL 6492707. At issue was the “additional compensation” entitled to injured workers who exhausted their Schedule of Loss award (SLU) when such award was 50 percent or greater. The claimant argued that the reference to WCL Section 15(3)(w) in Section 15(3)(v) only incorporates that part of 15(3)(w) that calculates the weekly award. Thus, he was entitled …

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Verbal Threshold Does Not Bar Employers’ Subrogation

Section 40 of the New Jersey workers’ compensation statute allows employers or workers’ compensation carriers to automatically receive reimbursement of benefits paid to an injured worker from a third party tortfeasor – either directly from the tortfeasor, or from an award received by the injured worker in a third party claim.

But what happens when an injured worker is barred from suing the third party tortfeasor? Can the employer or carrier still seek reimbursement for benefits paid in the workers’ compensation claim? The Appellate Division …

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Recent Trends an “Inextricably Intertwined’ Universe

Oftentimes we see applicants who sustain a specific injury but continue to work thereafter and simultaneously developed a cumulative trauma injury. When evaluating an applicant, the California Labor Code specifically requires a physician to determine what percentage of disability was caused by each industrial injury. This is consistent with the new system of apportionment under SB 899 and the enactment of Labor Code section 4663 and section 4664 which is based on causation. This means that each distinct industrial injury must be separately compensated based …

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