Case Summary - October 9, 2008

Worker's Compensation News

Case Summary - October 9, 2008

EXCLUSIVE REMEDY

Hatke v. Fiddler, 868N.E.2d 60 (I.N. 2007)

The Worker’s Compensation Act was the exclusive remedy for an employee who was injured in an auto accident involving a co-employee in a separate vehicle. Since both employees were in the course of their employment (although in two different vehicles going two different places) the non-negligent driver did not have a civil action against the negligent co-employee.

Eichstadt v. Frisch’s Restaurants, Inc., 879N.E.2d 1207 (I.N. 2008)

The Worker’s Compensation Act was the exclusive remedy for an employee who was injured when a manager hit her on her buttocks with a clipboard. While the manager’s act may have been intentional and outside the scope of his employment, there was no showing that the manager was the alter ego of the employer or that his actions and her injury were the intended result of the employer’s policies.

Procare Rehab Services of Community Hospital v. Vitatoe, 888N.E.2d 349(I.N. 2008)

The Worker’s Compensation Act was the exclusive remedy for a hospital employee who claimed malpractice as to the employer’s hospital’s physical therapy department where she was receiving treatment for a work related injury. Procare was not a separate legal entity from Community Hospital and its actions, even if they aggravated the injury, arose out of the employment and not as a the result of the employer acting in a dual capacity.

Rice ex rel. Lopez v. Harper, 892N.E.2d 209 (I.N. 2008)

The Worker’s Compensation Act was the excusive remedy as to a contractor who hired an employee through a temporary staffing agency. The contractor and the staffing agency were joint employers and the employee was an employee of both. The majority and the most significant of the seven factors for an employment relationship weighed in favor of employment by the contractor.

THIRD PARTY LITIGATION:

Doerr v. Lancer Transportation Services, 868N.E.2d 840 (I.N. 2007)

The settlement of a third party claim terminated the employer’s obligation to pay worker’s compensation benefits. The payment of the settlement proceeds to the employer would not negate the effect of the third party release, the failure of the employee to obtain the employer’s consent to the settlement or the third party’s belief of and reliance upon the settlement.

Roberts v. ACandS, Inc., 873N.E.2d 1055 (I.N. 2007)

A settlement and a paid judgment terminated the employers obligation to pay occupational disease benefits. The amounts received were well in excess of the statutory benefit and the fact that there were still some actions against bankrupt 3rd parties did not justify the preservation of the employee’s occupational disease action.

Casper v. L.E. Isley & Sons, 876N.E.2d 776 (I.N. 2007)

A settlement in excess of the value of the statutory occupational disease benefit terminates the employer’s obligation to pay the occupational disease claim, despite the fact that several third party claims remained as to bankrupt defendants.

BURDEN OF PROOF:

Gerlach v. Woodke, 886N.E.2d 41 (I.N. 2008)

An employer attempting to raise the agricultural employment exception to coverage under the Worker’s Compensation Act has the burden of proving that the injured employee was working as an agricultural employee at the time of his injury. The employee had been helping a welder repair a farm truck, but was run over by a tractor when going to have lunch. There was no evidence that the employee had returned to his agricultural work at the time of the injury.

Pavese v. Cleaning Solutions, _____NE2d_____ (I.N. 2008)

An employee has the burden of proving an injury by accident, arising out of and in the course of the employment and the recent statutory amendment requiring such proof without reliance upon a presumption (positional risk doctrine) is constitutional. The employee failed to meet her burden of proving causation because it was unclear whether she fell because of a syncopal episode (a personal risk) or a slippery floor (an employment risk).

DEPENDENCY:

Gonzalez v. Walmart Associates, Inc., 881N.E.2d 19 (I.N. 2008)

The presumptive dependency of spouses upon each other requires that they be living together at the time of the accidental death of one of them. Planning to reconcile or seeing each other frequently is not sufficient to overcome the actual separation of residencies and the independent requests for government assistance which existed for more than two years.

TERMINATION OF COMPENSATION FOR FAILURE TO COMPLY:

Krause v. IUPUI, 866N.E.2d 846, (I.N. 2007)

Compensation may be terminated when an employee fails to comply with employer directed medical treatment. But, the employer must provide written notice to the employee of the right to suspend benefits, even if the employee knew that the treating physician must be authorized by the employer.

INTEREST:

Christopher Brown v. Decatur Memorial Hospital, 873N.E.2d 69 (I.N. 2007)

The provider of medical services under the Worker’s Compensation Act is not entitled to pre-judgment interest on unpaid charges. Even though the employers worker’s compensation insurer failed to pay for several years, the Board was not authorized to award pre-judgment interest, because the Worker’s Compensation Act is statutory in origin. It is up to the legislature to include interest within the statute.

SECOND INJURY FUND:

Kohlmeyer v. Second Injury Fund, 888N.E.2d 281 (I.N. 2008)

The settlement of a worker’s compensation claim prohibits the receipt of Second Injury Fund compensation. The exhaustion of benefits requirement cannot be met by combining worker’s compensation benefits with Social Security disability benefits.

Mayes v. Second Injury Fund, 888N.E.2d 773 (I.N. 2008)

The settlement of a third party case prohibits an Award of Second Injury Fund compensation. This is so because the receipt of Second Injury Fund benefits is derivative of the employer’s liability under the Worker’s Compensation Act and where the employer’s liability has been terminated, the Second Injury Fund liability is also terminated. But here, the employee and the employer agreed to a continuation of worker’s compensation benefits despite the settlement and the Worker’s Compensation Board approved that agreement. Thus, the Second Injury Fund was bound by the Board’s approval of continued compensation.

Robert Fanning
October 10, 2008

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