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RECENT DEVELOPMENTS IN WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY LAW. By: Torrey, David B.; McIntyre, Lawrence D. Tort Trial & Insurance Practice Law Journal. Winter2016, Vol. 51 Issue 2, p749-776. 27p. Abstract: The article discusses legal developments in the U.S. workers' compensation and employers' liability law from October 2014 through September 2015. Topics discussed include limited effect of laws on workers' compensation systems, operative principle of workers' compensation systems, and the American Medical Association's manual "Guides to the Evaluation of Permanent Impairment" defining awards of permanent disability. Also it mentions benefits payable under workers' compensation insurance. (AN: 114638879) Academic Search Complete

RECENT DEVELOPMENTS IN WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY LAW

I. STATUTORY DEVELOPMENTS Retraction of benefits and the introduction of restrictive procedural rules have been themes of workers' compensation legislation for two decades.[ 2] This phenomenon is reflected in laws that restrict the parameters of coverage[ 3] and the types of medical conditions that are compensable,[ 4] require that employees treat with employer-designated physicians,[ 5] limit the period during which medical benefits may be collected,[ 6] and admonish that the law is not to be liberally construed.[ 7]

The ultimate retraction of benefits has recently been enacted in Oklahoma. This abrogation has taken the form of so-called "opt-out" legislation, which permits an employer to remove itself from the workers' compensation system entirely if it substitutes an ERISA-governed employee benefit plan for work accidents.[ 8] When an Oklahoma employer does so, it retains, remarkably, its historic immunity from tort suit -- that same immunity which formed the basis of the original workers' compensation compromise or "bargain." The intent of the opt-out legislation is employer cost-cutting, particularly of the medical benefits that form so large a share of work injury costs.[ 9] The employee does not have the option to choose whether he or she is covered by an opt-out plan or retains the protections of the state workers' compensation law. The "opt-out" choice is under the control of the employer. The Oklahoma enactment has come under attack in aggressive lawsuits, which seek to have the law declared unconstitutional.[ 10]

Opt-out, which is also being proposed in other states, constitutes a dramatic change, and opt-out proponents make "no pretense of altering the century-long bargain between employers and employees."[ 11] Indeed, the advocacy underlying opt-out rejects the reform calls of the 1972 National Commission on State Workmen's Compensation Laws. The Commission's over-arching recommendation was for "mandatory, universal coverage" with the specific admonition "that coverage by workmen's compensation laws be compulsory and that no waivers be permitted."[ 12]

A significant but less dramatic retraction among states is to tighten causation requirements by demanding that work causation predominate in the injury and/or disability. In this regard, some states, particularly California, maintain a liberal test that work causation exists as long as work is a "contributing factor."[ 13] Another common test, borrowed from tort law, requires the work impetus to be a "material" or "substantial" contributing factor in the worker's injury.[ 14] Florida and Oregon, however, are well known for having introduced causation standards more restrictive than these two common formulations. In these two states, the worker must show that work was a "major contributing cause."[ 15] In 2014, Tennessee followed this trend, as its 2013 reform law became effective.[ 16] The Tennessee proviso states that an " [i]njury . .. mean[s] an injury by accident​ , arising primarily out of and in the course and scope of employment​ ."[ 17] "Accidental," meanwhile, is narrowly defined as one "caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment​ ."[ 18] An injury "'arises primarily out of and in the course and scope of employment' only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent ​ causing the injury, considering all causes[.]"[ 19] Tennessee workers' compensation judges were at once faced with interpreting the new provision.[ 20]

Physicians have long dispensed pharmaceuticals directly from their offices, but in recent years some physicians have sought not only to dispense drugs from their offices, but to purchase drugs in bulk, "repackage" them, and resell them to patients at a significant profit. The Pennsylvania legislature, on October 14, 2014, amended Section 306(f.1)( 3) of the Pennsylvania Act[ 21] to limit the ability of physicians to undertake such dispensing. It did so in direct response to studies that showed that physician dispensing of prescription drugs in workers' compensation cases had increased dramatically in the state.[ 22]

II. THEORY, PRINCIPLE, CONSTITUTIONALITY Appreciation of the theory, principles, and constitutional basis of workers' compensation is critical for the true specialist.

The operative principle of workers' compensation is no-fault liability,[ 23] that is, the rule that no matter where fault may lie in an injury, the employer's insurance will pay benefits (as opposed to damages). In exchange for this remarkable imposition, the employer is immune from tort liability. As explained in 2015 by a California court, the theory underlying the exclusive remedy "is a presumed 'compensation bargain,' pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount ofthat liability."[ 24]

The retractive reforms mentioned above have, in some states, been so significant that injured worker advocates have sued, asserting that the "bargain" has been disrupted and that workers should be allowed to sue in tort. As discussed in the 2015 edition of this survey,[ 25] a Florida trial court, in response to such a challenge, granted summary judgment to an injured worker and held that the Florida law, as retractively amended over the last decades, was so parsimonious in benefits that it no longer constituted a fair remedy for injured workers.[ 26] Thus, the constitutional basis of the law was undermined and the plaintiff and others in her county were held to be allowed to file tort lawsuits.[ 27] In

June 2015, however, the Florida District Court of Appeal reversed,[ 28] holding that the issue of constitutionality had become moot when the employer in the initial lawsuit dropped its exclusive remedy defense[ 29] and that, as a consequence, the injured worker group intervenors no longer had standing.[ 30]

Many state laws provide that awards of permanent disability are to be based on impairment ratings derived by the American Medical Association manual, Guides to the Evaluation of Permanent Impairment. For years, challenges in various states have been made to the ability of legislatures to adopt the Guides by reference.[ 31] In 2015, such a challenge was successful when a Pennsylvania court held that the law's proviso that the impairment rating evaluation (IRE) physician is to utilize the "most recent edition" of the Guides[ 32] was violative of the Pennsylvania constitutional provision forbidding "unconstitutional delegation of authority."[ 33] In this case, the claimant sustained a work injury in April 2007 and was paid benefits voluntarily. Some four-and-a-half years later, she underwent an IRE.[ 34] The physician utilized the AMA Guides Sixth Edition (that is, the most recent) and determined that the claimant had a 10 percent permanent impairment.[ 35] The employer then sought an order establishing permanent partial disability. (Under the Pennsylvania Act, a worker with a rating less than 50 percent is entitled, at most, to another 500 weeks of partial disability.[ 36]) The workers' compensation judge (WCJ) granted the petition, but the claimant appealed. She argued that the law's proviso with regard to the IRE physician's use of the most recent edition of the Guides reflected an unconstitutional delegation of authority by the state legislature.[ 37] The Appeal Board affirmed, but Commonwealth Court reversed and remanded. The court held that the Act's proviso regarding use of the "most recent edition" indeed constituted an unconstitutional delegation of authority under the state constitution. The WCJ on remand was to utilize the Fourth Edition, that is, the edition that existed when the IRE statute was enacted in 1996.[ 38]

The court noted that the Pennsylvania Constitution provides, at Article II, Section 1, "the legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." This provision embodies "the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority."[ 39] It is true, the court acknowledged, that some delegation is permitted. The legislature may, in this regard, delegate authority to an independent agency or an executive branch agency where the General Assembly first "establishe[s] primary standards and impose[s] upon others the duty to carry out the declared legislative policy in accordance with the general provisions of the enabling legislation."[ 40]

When the legislature does choose to so delegate, two critical limits exist: "( 1) [t]he basic policy choices must be made by the legislature," and ( 2) the "legislation must contain adequate standards which will guide and restrain the exercise of the delegated administrative functions."[ 41] In the present case, these limits had not been honored. The court added, notably: "Even then if we had found that there are adequate standards allowing for a delegation to a governmental agency, Section 306(a.2) would still be unconstitutional because the delegation here was to a private party​ ."[ 42]

The dissent, meanwhile, perceived no unconstitutional delegation as having been committed, as both the physician applying the AMA Guides and the WCJ considering a dispute would presumably be undertaking their own review of the worker's impairment.[ 43]

Many state laws contain exclusions stipulating that certain categories of workers fall outside the scope of the state's workers' compensation act. In a New Mexico case dealing with such a provision, the state's intermediate appellate court found that the compensation act's exclusion of farm and ranch laborers did not comport with the New Mexico Constitution.[ 44] The workers in that case, a chile picker and a dairy worker, each suffered work-related injuries and sought compensation benefits. Both claims were dismissed pursuant to a provision in the New Mexico statute excluding farm and ranch laborers from workers' compensation coverage. In the New Mexico Court of Appeals, both workers argued that the exclusion violated their right to equal protection.

The court applied the rational basis test to determine the legitimacy of the restriction, concluding that the legislature's exclusion of farm and ranch laborers was not rationally related to a legitimate state interest. The employers had argued that the exclusion was based upon legitimate state interests, namely: ( 1) simplifying the administration of the compensation system; and ( 2) protecting the state's agricultural industry from additional overhead costs.[ 45] However, the court was not persuaded that the exclusion was rationally related to either of those interests, noting that "[t]here is nothing rational about a law that excludes from worker's compensation benefits employees who harvest crops from the field while providing benefits for the employees who sort and bag the very same crop."[ 46] The court held that the exclusion's disparate treatment was not rationally justified and could not stand. The New Mexico Supreme Court has granted certiorari in this case.[ 47]

III. EMPLOYER-EMPLOYEE RELATIONSHIP For a cognizable claim to exist, the worker must demonstrate that he or she is in an employee-employer relationship, that the injury arose in the course of employment and was medically related thereto (that is, that medical causation exists), and that the injury or disease is within the protection of the statute. A scholar of an earlier day referred to these substantive elements of the claim as the "three pillars upon which coverage rests."[ 48] The cases reviewed immediately below discuss the initial pillar of coverage.

A. In General In a South Carolina case, the state supreme court held that an exotic dancer was an employee of the Studio 54 Boom Boom Room, i.e., the gentlemen's club where she danced, and thus was entitled to compensation benefits.[ 49] There, the worker performed as an exotic dancer between five to seven days a week. She traveled throughout the Carolinas to dance at different establishments and had performed at the club only on three separate occasions. When she arrived at the club on the evening of her injury, the worker presented identification demonstrating she was at least eighteen years old, reviewed the club's rule sheet, and paid the club's $70 tip-out fee. During the worker's shift at the club, a fight broke out, and she was struck in the abdomen by a stray bullet, causing severe injuries and the loss of a kidney.

The worker filed a claim for temporary total disability benefits. Because her putative employer was not represented at the hearing, the South Carolina Uninsured Employer's Fund appeared, arguing that the

worker was an independent contractor and not an employee of the club. The commissioner and the appellate panel agreed that the worker was not an employee, but the Supreme Court of South Carolina reversed. The court concluded that an employer/employee relationship existed because the club retained the absolute right to terminate the worker for violations of the club's rules and policies. In this regard, the court emphasized that "[t]he absolute right to terminate the relationship without liability is not consistent with the concept of independent contract."[ 50]

In a Nevada case, the court struggled with the question of whether an inmate participating in a prison's early-release program was an employee of the state Department of Corrections. There, a worker, who was convicted and imprisoned for burglary two years earlier, was transferred from prison to serve out the remainder of his sentence in transitional housing (a so-called halfway house).[ 51] Because the housing program, operated by the Nevada Department of Corrections, required that participants maintain private sector employment, the worker obtained a job at a nearby carwash. While trimming trees outside of the carwash, the worker fell from a ladder and suffered a severe head injury. The owner of the carwash, on behalf of the employee, submitted a compensation claim, which the insurance carrier denied. The carrier asserted that the worker was in the legal custody of the Nevada Department of Corrections at the time of his injury and, therefore, it was financially responsible for the worker's injury under its own alternative insurance program. The carrier's argument was based upon a provision in the Nevada statute that entitles a person to "coverage under the modified program of industrial insurance established by regulations adopted by the Division" if that person is an "offender confined at the state prison, while engaged in work in a prison industry or work program."[ 52]

The Supreme Court of Nevada found the above quoted statutory language to be ambiguous. According to the court, " 'work program' could be broadly construed to include the work release program​ . On the other hand, it could be narrowly construed to refer to a specific type of program under the auspices of the prison industries."[ 53] Accordingly, the court turned to the legislative history of the provision. The court explained that, at one time, the statute applied only to persons "engaged in work in a prison industry program." However, the legislature amended the provision in 1995 to include persons "engaged in work in a prison industry or work program."

According to the court, "[t]he legislative history reveals that 'or work' was added to curtail a specific situation in which inmates who were participating in prison work camps with the Division of Forestry were suing the Division of Forestry for failure to train and [for providing] inadequate equipment."[ 54] Finding that the legislature did not intend for the language "or work" to encompass the sort of work release program at issue in this case, the court held that the carwash insurance carrier was liable for the worker's injury.

B. Coverage of Undocumented Workers The eligibility of undocumented employees for workers' compensation, an issue that has been explored at length in the legal literature in recent years,[ 55] remained an important issue during 2015. The Delaware Supreme Court held that an employer seeking termination of total disability benefits was not relieved of proving job availability in light of a worker's undocumented status.[ 56] There, a construction company

hired the claimant, who spoke almost no English, without verifying his Social Security number. The claimant labored for the employer for three years, but then suffered permanent impairment of his shoulder and back when he was thrown from a truck while working. The employer paid the claimant total disability at a compensation rate of $474.30 per week.

Eventually, the employer investigated the claimant's immigration status at the request of its insurance carrier. It found that the Social Security number that the claimant had provided was invalid. When the claimant was unable to provide a valid Social Security number, the employer discharged him and hired a doctor to re-evaluate his condition. The physician concluded that the claimant was still impaired, but able to return to light-duty work. The employer then sought termination of the claimant's benefits. The Board concluded that the employer had met its burden for termination of total disability benefits and declined to award partial disability benefits because the claimant's reduced earning capacity was caused by his immigration status rather than his injury.[ 57]

The high court reversed, holding that, in order to avoid making partial disability payments, the employer was required to prove that the claimant did not have a reduced earning power. Although the employer asserted that it would re-hire the claimant (for light-duty work) but for his immigration status, the court found that this evidence was insufficient to demonstrate job availability. The court expressed concern that a decision to the contrary would mean that "an employer could always hire an undocumented worker, have him suffer a workplace injury, and then avoid partial disability benefit payments by 'discovering' his immigration status, offering to re-employ him if he could fix it, and claiming that a job is available to him at no loss in wages."[ 58] According to the court, such a result "would be contrary to the Workers' Compensation Act."[ 59]

C. Leased/Temporary Employees The rise of the contingent workforce has featured the increased use of temporary workers and "leased employees."[ 60] This development has in turn created workers' compensation issues, as courts, faced with worker injuries, struggle to determine, among other things, precisely by whom the contingent worker is employed. The majority approach is for the worker to be considered an employee of both temporary agency/employee leasing enterprise and its client, the latter often called a "special employer."[ 61]

In a Kentucky case, a long-distance truck driver was employed by a transportation company.[ 62] Unbeknown to the employee, the company maintained an employee leasing arrangement with another entity, which handled all administrative functions, such as payroll, taxes, and insurance coverage. The trucking company did not maintain its own workers' compensation policy because its contract shifted the responsibility for such coverage to the employee leasing company.

In 2008, the employee suffered a work-related injury. Finding that the there was an employment relationship between the employee and the employee leasing company, the administrative law judge (ALJ) awarded benefits. Nevertheless, the Board and the Kentucky Court of Appeals concluded that the employee was not covered by the employee leasing company's insurance policy pursuant to the "loaned servant doctrine," a common law principle, which holds that a servant cannot be deemed to be an employee of a master of whom he has no knowledge. Because the employee believed that his employer

was the trucking company (indeed, the employee had never even heard of the employee leasing company), the court held that the leasing company could have no responsibility for his workers' compensation benefits.[ 63]

The supreme court reversed, holding that the Kentucky statute, which explicitly sanctions the employee leasing practice, does not require that workers subject to an employee leasing agreement have knowledge of their leased status, nor does it require that the worker be aware of the existence of the leasing company at all.[ 64] The court distinguished between "loaned servants" and "employee leasing arrangements" and held that the lower court erred in applying common law principles applicable to the former when the legislature had already sanctioned the latter.[ 65] Thus, the court concluded, the validity of an employee leasing arrangement is not dependent upon the employee's knowledge of the same. The court imposed liability on the employee leasing company's carrier.

IV. INJURIES IN THE COURSE OF EMPLOYMENT AND ARISING OUT OF EMPLOYMENT The second pillar of coverage under workers' compensation law is, as noted above, the requirement that the worker have sustained the injury "arising out of" and "in the course of employment." The worker who has clocked in and is hard at work at the lathe when injured will obviously meet this two-part test. Still, many gray areas exist that give rise to disputes.

A. Off-Premises Injuries In a 2015 case, Maine's Supreme Judicial Court affirmed the award of compensation death benefits to the widow of a financial advisor who died of a heart attack while exercising on his home treadmill.[ 66] With regard to the "course of employment" inquiry, the court noted that although the deceased was walking on the treadmill at the time of his death, his injury occurred during work hours, in a place that his employer had sanctioned for his work, and while he was using a BlackBerry that the employer provided to him for his work.

Nevertheless, the employer argued that the heart attack was brought about by causes unrelated to his employment and, therefore, did not "arise out of" the deceased's employment. indeed, the deceased had suffered a prior heart attack in 1993 and was experiencing chest pains several weeks before his death. In contrast, the widow offered evidence demonstrating that the deceased, who managed a large investment portfolio for his employer, was under substantial pressure and stress, worked long hours, and traveled frequently. Citing this evidence, the court held that the record supported the hearing officer's conclusion that the deceased "was under extraordinary and relentless stress in performing his duties" and affirmed the award of compensation death benefits.[ 67]

B. Horseplay The Supreme Court of South Dakota ruled that a worker's injury arose out of out and in the course of his employment where he sustained a broken leg while running away from a co-worker following a practical joke.[ 68] The case is remarkable because some states bar compensation when, as here, the injured worker is the original aggressor.[ 69]

In that case, a worker tricked one of his co-workers into giving up his spot inside an air-conditioned truck

on a hot day. To effectuate this ruse, the worker falsely told his colleague that someone needed to speak with him on the other side of the worksite and then promptly took his spot inside the truck. When the co- worker later encountered his prankster, he began to chase him. The worker jumped over a trench, but landed awkwardly and broke his leg.[ 70]

The ALJ and lower court denied benefits, holding that the worker's injury did not occur in the course of employment. The supreme court reversed. Because the horseplay occurred during a lull in the workday (the workers were waiting for a concrete truck to arrive), the court held that it did not constitute "a substantial deviation from employment and, therefore, the injury occurred 'in the course of the employment.'"[ 71]

C. Assault by a Co-Worker and Personal Motivation As discussed above, the operative principle of workers' compensation is no-fault liability. Still, an injury will not be conceived of as arising out of the employment when the worker imports into the workplace some exclusively personal issue that in turn leads to his or her assault by a third party.[ 72]

An employer successfully invoked this defense in a 2015 case.[ 73] There, a co-worker assaulted the claimant with a brass hammer because he discovered on the Internet that the claimant was a registered sex offender. The judge denied the worker's petition for compensation benefits, finding that the claimant was attacked for reasons personal to his assailant, and that nothing in the workplace precipitated the assault.[ 74] The Nebraska Court of Appeals affirmed, explaining that the evidentiary record was devoid of any indication of an employment dispute between the two workers or of any animosity over work performance. The court conceded that the employer provided an environment and opportunity for the assailant to carry out his attack. Nevertheless, it found ample support for the trial court's determination that the co-worker's personal animus toward sex offenders occasioned the assault.[ 75]

v. INJURY AND DISEASE COMPENSABLE The third pillar of coverage is the requirement that the worker have sustained an injury or incurred a disease that is in fact covered by the law. For example, the Montana Act explicitly states that mental stress causing mental disability injuries and mental stress causing physical disability injuries are not covered by the law.[ 76] The Pennsylvania Act, on the other hand, indicates affirmatively that Hepatitis C is a covered infectious disease; indeed, for certain workers, like professional and volunteer firefighters, a presumption of causation exists.[ 77]

A. Injury Definition In 2015, the Louisiana Supreme Court held that noise-induced hearing loss (NIHL) qualified as both a "personal injury by accident" and as an "occupational disease" within the meaning of the Louisiana Act.[ 78] In that case, employees who worked in a paper mill and box plant brought a negligence action against their employer alleging that they suffered from occupational NIHL caused by exposure to high noise levels during their tenure at the employer's facility. Following a bench trial, the district court found in favor of the plaintiffs and awarded damages. The court of appeal reversed, finding that noise-induced hearing loss is an "occupational disease" under the Louisiana Act.[ 79] Thus, the employees' sole remedy was in workers' compensation, and the employer was immune from liability in tort.

On appeal, the supreme court issued an even broader ruling. Agreeing with the court of appeal that NIHL constitutes an occupational disease, it went on to hold that the malady is also a "personal injury by accident" as used in the Act.[ 80] The court began by noting the well-established principle that courts must liberally construe the coverage provisions of the Act[ 81] and reviewed a litany of decisional law, which interpreted expansively the term "accident." Citing existing precedent, the court explained that just because "a condition may commonly be referred to as an illness or disease does not thereby preclude its classification as an accident."[ 82] Instead, Louisiana courts must consider whether the worker has suffered unexpected and unforeseen "violence to the physical structure of her body."[ 83] With these doctrines in mind, the court held that traumatic damage to the inner ear certainly qualifies as an "injury" ​ because the high levels of energy noise entering the ear cause damage to the inner ear "by violence to the physical structure of the body," i.e., the hairs and cells in the inner ear. Furthermore, the exposure to hazardous levels of industrial noise ​ qualifies as an accident because the hazardous level of industrial noise ​ was an "unexpected or unforeseen event happening suddenly or violently."[ 84]

Accordingly, the plaintiffs in this case were precluded from recovering from their employer in a negligence action.

B. Psychic Injuries In a 2015 case, the Tennessee Supreme Court held that a worker who suffered from post-traumatic stress disorder (PTSD) was entitled to workers' compensation benefits.[ 85] In that case, the worker (the store manager) was injured while pursuing into her employer's parking lot two customers who stole her purse while inside the store. Notably, although the store manager sustained physical injuries while attempting to retrieve her purse, her claim related only to her alleged PTSD. The trial court awarded the worker benefits. On appeal, the employer argued that the trial court erred in finding that the employee sustained a compensable mental injury. The supreme court disagreed, explaining that "a mental stimulus, such as fright, shock, or even excessive, unexpected anxiety could amount to an 'accident' sufficient to justify an award for a resulting mental or nervous disorder."[ 86] Accordingly, the worker was entitled to benefits.

C. Presumption of Causation in Firefighter Cases Many states have amended their laws in the last few decades to create presumptions of causation in cases involving firefighters. Although no two statutes are precisely the same, typically a statute lists a number of disease maladies and then provides that if a firefighter develops such malady, has in the relevant past been found negative for this affliction, and has so many years of active service, the disease is presumed to have been caused by his or her work. Such presumptions are rebuttable by the employer -- typically a municipality -- to show that the disease developed from some other source.

The Washington Supreme Court held in 2015 that a firefighter who developed valley fever was not entitled to the presumption that his injury had its genesis in an occupational disease.[ 87] In that case, the court was called upon to decide whether valley fever is a "respiratory disease" under the Washington Act. If so, the Act's presumption applied, shifting the burden of proving the disease's proximate cause from the employee to the employer.[ 88]

The employee urged the supreme court to adopt the broad "lay" meaning, or dictionary definition, of the phrase "respiratory disease," on the basis that the medical experts in the case had testified that valley fever is an infectious disease and not a respiratory one, but the court declined to do so. The court rejected the employee's reading and interpreted the phrase narrowly to include only diseases that medical experts would diagnose as respiratory diseases.[ 89]

In an alternative attempt to invoke the statutory presumption, the employee also argued that all "infectious diseases," such as valley fever, qualified for the presumption. The Washington Act provides that "[t]he presumption ​ shall be extended to any firefighter who has contracted any of the following infectious diseases: Human immunodeficiency virus/acquired immunodeficiency syndrome, all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis."[ 90] The employee argued that the statute's general reference to "infectious diseases" includes all infectious diseases, including valley fever, whereas his employer maintained that the presumption is limited only to those diseases enumerated.

Turning to the legislative history of the provision, the court noted that the legislature's intent was to restrict the infectious disease presumption in an effort to reduce costs to municipalities.[ 91] Thus, the court declined to adopt an expansive infectious disease presumption that the legislature had outright rejected. Nevertheless, the court emphasized that its holding "does not preclude firefighters with impaired breathing or other infectious diseases from obtaining workers' compensation benefits; it just requires them to prove causation just like any other injured worker."[ 92]

D. Compensable Consequences The California Supreme Court in 2015 clarified that the causation requirement in workers' compensation cases is less restrictive than the one used in tort law.[ 93] In that case, the employee, a carpenter, suffered a concussion and spinal injuries while working on a construction project. The employee's workers' compensation doctor prescribed three medications (Elavil, Neurontin, and vicodin). His personal doctor prescribed two other medications, Xanax (for anxiety) and Ambien (for insomnia). The employee subsequently died due to the combined toxic effects of four of those drugs, and his widow and three minor children sought death benefits.[ 94] According to the court, the dispute in this case "centered around which drugs played a role, how big that role was, and why the drugs were prescribed."[ 95]

The evidence demonstrated that the Xanax and Ambien (both of which were prescribed by the employee's personal physician) caused sedation significant enough to result in death. Nevertheless, the medical expert also testified that one of the medications prescribed by the workers' compensation physician, Elavil, could have played a minor role, when combined with the other two drugs, in causing the worker's death. The WCJ and Appeals Board awarded benefits, finding that Elavil contributed to the worker's death and that the worker had taken Xanax and Ambien because he could not sleep due to the pain resulting from his work injury.[ 96] The employer appealed, arguing that no substantial evidence supported the WCJ's causation finding. The California Court of Appeal reversed,[ 97] but the California Supreme Court reinstated the administrative ruling.

With regard to causation, the supreme court clarified that the Act requires only that employment be one of the contributing causes without which the injury would not have occurred. In doing so, the court plainly

rejected the more stringent "significant factor" and "material factor" tests, which some California courts had purported to apply in the past. The court remarked, in this regard:

The Court of Appeals reasoned that even if Elavil "played a role" in [the injured worker's] death, the evidence of causation was insubstantial because "it was not significant such that it constituted a material factor contributing" to his death. In doing so, it appeared to use the term "material" as a further substantive hurdle in determining whether a work injury was a contributing cause of death. No authority supports such use.[ 98]

VI. EXCLUSIVE REMEDY As noted at the outset, in exchange for imposition of liability regardless of fault, injured workers and their dependents are limited, as their exclusive remedy, to the insurance benefits available under the workers' compensation law. An exception exists in many states when the employee can plead an intentional tort. In the face of such an allegation, the "intentional tort exception" may defeat immunity and permit a civil suit.[ 99]

The precise boundaries of exclusive remedy immunity are always being tested. Two of the following cases are major examples. In a California case,[ 100] the survivors of a worker who had died of mesothelioma sued the employer in a tort action. The plaintiffs' theory in seeking to avoid the exclusive remedy was that the worker not only had asbestos exposure on the work premises, but at home as well.[ 101] In this regard, the employer permitted the deceased and other workers to bring home from the premises asbestos-containing scrap pipe for personal use. The worker had, indeed, used the pipe on projects around the house, including the building of a patio and flowerpots, and apparently in the construction of a storage shed and a roof.[ 102] The plaintiffs conceptualized this hazardous, at-home use of the pipe, facilitated via the employer, to constitute an independent injury from that which he sustained in the actual course of his employment.[ 103]

The trial court, however, agreed with the employer that the exclusive remedy applied and dismissed the case.[ 104] The California Court of Appeal affirmed. The court acknowledged that the deceased worker's use of the employer's pipe at home, off the clock, could well be found, as a matter of fact, to be outside the course of employment. Still, the claim was without merit as a matter of law.[ 105] The parties had agreed that the deceased had been subject to injurious exposure to asbestos in the course of his work and that such exposure was a contributing factor to the mesothelioma.[ 106] Thus, by necessity, the deceased's mesothelioma was a work-related injury compensable under the Workers' Compensation Act. [ 107] This was so because for causation to be shown under the Act, all that is required is that the work exposure constitutes a "contributing cause."[ 108] The fact that the worker's at-home use of the employer's product may also have been a contributing factor did not change this critical analysis. The court rejected the idea that the at-home use of the product somehow formed the basis of a "separate injury,"[ 109] conceptualizing any at-home injury as being "derivative" of the harm sustained in the course of employment.[ 110]

In recent cases, the boundaries of the exclusive remedy have been tested in cases where a worker incurs a disease but, because of a statute of repose, his claim has been time-barred. In a renowned 2013

case, the Pennsylvania Supreme Court allowed late-manifestation mesothelioma victims, barred from any workers' compensation remedy because of the law's 300-week statute of repose, to sue the employer in tort.[ 111] Influenced by that case, an Illinois appellate court in 2014 ruled the same way, holding that a worker whose mesothelioma did not manifest itself until forty-one years after his last exposure was permitted to sue his employer in tort.[ 112] The exclusive remedy did not provide immunity. In 2015, however, the state supreme court reversed.[ 113]

The worker in that case experienced asbestos exposure with his employer from 1966 to 1970. He was diagnosed with mesothelioma in 2011, beyond the Illinois law's twenty-five-year statute of repose. He sued his employer in tort. The trial court granted a motion to dismiss in the employer's favor, but the appellate court reversed, noting that under supreme court precedent, the exclusive remedy does not apply when the "injury is 'not compensable under the Act.' "[ 114] "[P]laintiff's injury," the court stated, "is quite literally not compensable under the Act, in that all possibility of recovery is foreclosed because of the nature of plaintiff's injury."[ 115]

The supreme court, in reversing, rejected this reasoning, noting that "an employee can escape the exclusivity provisions of the Act" if he or she shows that the injury "was not compensable under the Act."[ 116] However, the court accepted the employer's argument that "whether an injury is compensable is defined by the scope of the Act's coverage, and not on the particular employee's ability to recover benefits."[ 117] And, under the Illinois Act, injury and disease caused by asbestos exposure have always been held compensable.[ 118]

Further, the court had previously held that "despite limitations on the amount and type of recovery under the Act, the Act is the employee's exclusive remedy."[ 119] In one case, the worker sustained a work- related injury and was paid benefits voluntarily, but was left with permanent impotence. In that case, the worker's civil suit against the employer for this non-compensable aspect of damages was dismissed under the exclusive remedy.[ 120] In another case, a worker was fatally injured in a work-related accident. Her husband was a non-dependent, and hence the only benefit payable, at that time, was for burial expenses. In that case, the widower's wrongful death action was similarly dismissed based upon the exclusive remedy.[ 121]

Finally, the court observed that were it to allow a civil action in this situation, this "would mean that the statute of repose would cease to serve its intended function, to extinguish the employer's liability for a work related injury at some definite time."[ 122]

VII. MEDICAL BENEFITS The principal benefits payable under workers' compensation insurance are for disability and impairment (temporary or permanent) and medical treatment. The amount and duration of weekly wage loss benefits and the right to receive medical care are likely the most contested issues that arise in workers' compensation cases. The laws of the various states differ markedly in this realm. Four cases from 2015, however, deal with issues that should be of interest to lawyers in all states. The first deals with interpretation of a regulation that limited reimbursement of a particular procedure, and the others concern the thorny issue of treatment of an injured worker with medical marijuana.

In one case, the West Virginia Supreme Court invalidated a medical cost containment regulation, which provided that chelation therapy, a regimen for treating heavy metal toxicity, when provided in a doctor's office, is not reimbursable.[ 123] In that case, the claimant was a longtime furniture refurbisher. She worked in a small room with poor ventilation, and in this environment she was exposed to furniture and metal dusts. She became severely ill with neurological symptoms and was found to have elevated blood levels of aluminum, lead, and nickel.[ 124] She was successful in her workers' compensation claim, but her employer refused to pay for her physician's office-based chelation therapy -- "a chemical process in which a synthetic solution is injected into the bloodstream to help remove heavy metals and/or minerals from the body."[ 125] In denying the worker's request, the employer's agent was relying on a regulation which stated, among other things: "The ​ self-insured employer ​ will not reimburse for IV chelation therapy performed in office."[ 126] This regulation posed an insurmountable challenge to the worker because there were no in-hospital chelation programs in the state.

The worker appealed to the ALJ, who directed that the employer be responsible for the therapy. In the judge's view, the statute, which takes precedence over a regulation, controlled, and the law mandates that the employer "must provide medically related and reasonably required medical treatment, health care or health care goods and services ​ ."[ 127] The Board of Review, however, reversed, enforcing the regulation. The supreme court, however, agreed with the ALJ's position and granted the request. In so ruling, the court invalidated the regulation.[ 128] The court first noted that the plain language of the Act provided that an employer is liable for medical care, and rules that detail and enforce this mandate must have a rational basis.[ 129] Here, the court could discern none. The employer did not identify to the court any health and safety or economic efficiency purpose, but only a purported general concern over the "controversial nature of the therapy." But this contention, the court declared, lacked "merit both factually and legally." The controversy surrounding the use of chelation therapy is for unapproved uses and not for treatment of heavy metal toxicity.[ 130] As a general matter, the employer's defense of the regulation "lack[ed] merit ​ because it ignores the fundamental purpose of workers' compensation legislation. There is no rational basis to discourage medically necessary treatment: this reasoning is wholly incompatible with the Act's benevolent objectives."[ 131] The case was remanded for entry of an order directing that the chelation therapy be covered.

In a series of three cases, the New Mexico Court of Appeals unequivocally held that an injured worker who was eligible to access medical marijuana under the state's Compassionate Care Act has the right of recovery for the same under workers' compensation coverage. As discussed in the 2015 edition of this survey,[ 132] the court initially so held in May 2014, and the state supreme court thereafter denied the employer's request for review.[ 133] The court in that case had rejected the employer's argument that medical marijuana was not a benefit available under the workers' compensation law and that, in any event, the WCJ's order was made illegal because of its purported violation of federal law. The law, in the court's view, plainly provided for provision of "services" with the only criterion being reasonableness and necessity.[ 134] As to the conflict with federal law, the court acknowledged that the Controlled Substances Act (CSA) still criminalized the possession of marijuana. Still, the court noted that the federal government had, in an August 29, 2013, memorandum, indicated that enforcement would not be undertaken in the medical marijuana treatment context.[ 135] The employer had also complained that it

was being compelled "to commit a federal crime," but the court responded that the employer had failed to identify any such statute, "and we will not search for such a statute."[ 136]

In 2015, a different employer similarly resisted payment for medical marijuana, but on this occasion the employer did identify three federal laws that, were it obliged to pay for medical marijuana, would purportedly implicate it in "violation of the CSA by way of conspiracy or aiding and abetting."[ 137] The employer identified federal laws prohibiting a person from knowingly possessing a controlled substance, prohibiting a person from attempting or conspiring to commit a violation of federal law related to controlled substances, and generally making illicit the aiding and abetting of a federal criminal offense.[ 138] The court, however, was just as unmoved on this occasion as it was in the 2014 case. In its view, the employer was only engaging in "speculation" that it would ever be prosecuted, and the court noted that yet another memo from the Justice Department, this one dated February 14, 2014, did not alter its position as to enforcement.[ 139]

on the merits, the employer alleged that a defect existed in the claimant's proofs, namely that one of the two doctors who certified the claimant for medical marijuana was not one of the physicians who, in turn, was legally able to testify in the claimant's workers' compensation case.[ 140] The court was not persuaded by this argument, holding that the Compassionate Care Act's requirement of two physicians certifying the worker for marijuana treatment was to be considered separately from the requirements of the workers' compensation law on the issue of who could testify. And, in the present case, the claimant had submitted sufficient evidence from an authorized provider that the treatment was merited. The court insisted, "All that is required by the Workers Compensation Act is that the WCJ determine, based on evidence from one or more authorized health care providers, whether the workers' medical treatment for a work injury is reasonable and necessary."[ 141]

In the third case, a WCJ had denied the claimant's attempt at recovery for medical marijuana treatment, but the New Mexico Court of Appeals reversed.[ 142] The WCJ had, in this regard, held that the claimant could not show that a physician had "prescribed" marijuana, as seemingly required by regulations. In addition, the judge ruled that the claimant had not shown that, in his particular case, marijuana was reasonable and necessary. The appellate court, however, explained that marijuana is not a prescription drug in the first place[ 143] and that, in any event, the certification by physicians for a worker to receive medical marijuana was the equivalent of a prescription. In any event, the court held that the fact that the physician "had not provided a prescription as defined in the regulations [did] not support the WCJ's conclusion that medical marijuana was not reasonable and necessary medical care."[ 144] Further, while the claimant's physician had recorded in a note that he certified the claimant for the therapy because the claimant would continue to use marijuana in any case, a review of the whole record demonstrated the treating physician's view that the marijuana use was reasonable and necessary.[ 145]

Irony obviously surrounds the fact that medical marijuana has been legitimized in some states, but that possession and use of the same remains a federal crime. The New Mexico court had no problem resolving the quandary in its state, but in a 2015 case, the full implications of this divergent authority were apparent in Colorado.[ 146] This case did not involve workers' compensation rights and liabilities, but it is

nevertheless a critical development for employers with employees who have sustained work-related injuries.

There, a worker with quadriplegia and a spastic disorder had been approved for a license, under Colorado law, to use medical marijuana. When his employer's random blood testing revealed marijuana use, the worker advised his employer of his license and his intention to continue using medical marijuana. The employer thereupon fired the worker for violation of its anti-drug policy.[ 147] The worker, in turn, sued the employer in a wrongful discharge action, alleging that he had been fired for "lawful" activities.[ 148] The trial, appellate, and supreme court, however, all dismissed the suit. The "federal Controlled Substances Act prohibits medical marijuana," and the " 'Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail^]' "[ 149] As far as the court was concerned, the worker's use of medical marijuana was unlawful under federal law, "and we decline to engraft a state law limitation onto the term."[ 150]

VIII. SUBROGATION All state workers' compensation laws provide for employer subrogation, that is, the right to be reimbursed for payments of compensation it has made out of the worker's third-party action settlement or verdict.[ 151] States vary on how this subrogation right is enforced, and this is particularly so when the injured worker takes no action to sue the third party. The New York statute handles this situation by providing that, after six months of the award of benefits, the worker's right of action, in lieu of his own action, is assigned to the employer or insurance carrier.[ 152] In some states, like Pennsylvania, however, no provision for assignment is made. This omission has been controversial for a century. In 2015, the supreme court held that the subrogee has no independent cause of action against a third-party defendant. The court, in a didactic opinion, reaffirmed the rule that the right of action "abides" in the insured, that is, the injured worker, and that if the latter will not sue, the carrier must sue "to the use" of the injured worker.[ 153]

IX. SETTLEMENT The seeming majority rule among states is that a worker, in an acknowledged claim, can settle the case, but the release he or she tenders is not effective to bar other parties, such as the surviving spouse. This issue arose in a 2015 Kentucky case, in which a worker sustained serious injuries and was paid benefits voluntarily.[ 154] He settled his case, accepted a lump sum, and thereafter died. His widow filed a claim for death benefits, but the employer pleaded the release as a defense. The ALJ rejected this argument, but the Appeal Board reversed and held that the fatal claim was barred. On appeal, however, the court restored the ALJ's ruling. The court noted that precedent existed from a 1930 holding that survivors' claims are not barred by the worker's release. The court also surveyed the law of other states, including that of New Jersey, and observed that this was a mainstream rule.

The court noted that the original release was not signed by the widow, nor did it address her rights. Still, these omissions do not seem pivotal to the critical analysis. The 1930 precedent, in this regard, declared that the "compensation due [to the widow] ​ is quite a different thing from the compensation paid to her husband."[ 155] And, indeed, most courts interpret workers' compensation statutes as establishing, in the

surviving spouse, a separate cause of action that cannot be released before it ever manifests itself.[ 156] Thus, in the Kentucky case, even if the original release purported to extinguish the rights of the widow, such a proviso would have been unenforceable.

X. RETALIATORY DISCHARGE Like most states, Pennsylvania recognizes a common law right of action by an injured worker against an employer if he or she is fired, or otherwise discriminated against, for exercise of workers' compensation rights. A Pennsylvania appellate court, in 2014, held that an employee could pursue such a wrongful discharge claim against her employer after she was allegedly fired for seeking workers' compensation benefits, notwithstanding the fact that she never actually filed a formal claim petition.[ 157]

In that case, the plaintiff alleged that she suffered a work-related injury, reported the injury to her employer, was paid short-term disability in lieu of workers' compensation, and was discharged when her short-term disability ended due to an accumulation of claims for work-related injuries. Following her termination, she filed a wrongful termination lawsuit. The employer, however, argued that the action failed as a matter of law because she never filed a claim petition.

In rejecting the employer's argument, the court noted "the Workers' Compensation Act reflects both the historical quid pro quo between employers and employees, and the public policy of the Commonwealth."[ 158] If, however, "an employer could discharge an employee for a work-related injury because the employee received payment in lieu of compensation, rather than compensation administered by the Bureau, the public policy embodied by the Workers' Compensation Act would be undermined."[ 159] If the wrongful termination cause of action at issue in this case required plaintiffs to demonstrate that they had filed a formal claim petition, the court worried that it "would create an incentive for employers to steer employees away from filing workers' compensation petitions in order to retain the right to discharge the employee due to the injury."[ 160] Thus, the court held that the plaintiff's claim was cognizable and remanded to the trial court for further proceedings.

XI. PROCEEDINGS TO SECURE WORKERS' COMPENSATION The workers' compensation dispute resolution systems of some states have adopted the Daubert standard to govern the admissibility of expert proofs.[ 161] A leading example is Florida, where the standard was introduced in 20 1 3.[ 162] In a 2015 case, the Florida District Court of Appeals, in an appeal from a Judge of Compensation Claims (JCC) specifically wrote a highly didactic opinion "to address the steps necessary for [courts to undertake the Daubert] analysis."[ 163]

In that case, an injured worker was apparently prosecuting an original claim. The employer submitted the trial depositions of two medical experts, but the claimant objected, on the basis of Daubert, to the admissibility of their testimony. The JCC, however, applied Daubert, concluded that both doctors' opinions complied, accepted the testimony as credible, and ruled in the employer's favor. The appellate court affirmed. The court first summarized the 2013 law and then explored several nuances of Daubert, as developed over the years, that were relevant in the appeal. For example, the court pointed out that objections based on Daubert must be timely raised[ 164] and be made with specificity.[ 165] The court also stated that the legislature had undertaken a "codification of the federal Daubert test​ ."[ 166] Thus,

federal court rulings are authority to which Florida's judges may turn in interpreting the new test. Indeed, the court in the new case cited federal circuit court cases as authority.[ 167]

The court also emphasized that, given Florida's adoption of Daubert, "pure opinion" testimony, that is, "testimony based only on the personal experience and training of the expert," is no longer admissible. To the contrary, opinions must have a scientific basis: "the cornerstone of section 90.702 is relevance and reliability based upon scientific knowledge."[ 168] Here, the JCC had determined that the experts' opinions were based not only on clinical examinations and forensic reviews, but also upon scientific studies.[ 169] She thus committed no error in overruling the objections and admitting the opinions.[ 170]

Notes 1. See, e.g., Moore v. K-Mart Corp., 769 S.E.2d 35, 41-42 (W. Va. 2015) (in invalidating regulation that disallowed payment for physician-office based chelation therapy, court cited Colorado case that allowed massage therapy performed by massage therapist, even though regulation required "on-site supervision of a physician or registered physical therapist") (citing Riley Family Tr. v. Hood, 874 P.2d 503 (Colo. Ct. App. 1994)); Folta v. Ferro Eng'g, 43 N.E.3d 108, 123 (111. 2015) (Freeman, J., dissenting) (observing that Pennsylvania Supreme Court had held that widow of deceased worker whose mesothelioma had manifested itself only outside of 300-week statute of repose had cognizable cause of action in tort against employer) (citing Tooey v. AK Steel, 81 A.3d 851 (Pa. 2013)).

2. See generally Martha T. McCluskey, The Illusion of Efficiency in Workers' Compensation Reform, 50 RUTGERS L. REV. 657 (1998).

3. See, e.g., Jivan Econ. Inns & Suites, 260 S.W.3d 281, 284 (Ark. 2007) (explaining that 1993 amendment introduced proviso that "compensable injury does not include an '[i]njury which was inflicted upon the employee at a time when employment services were not being performed ​ .'") (quoting ARK. CODE § 11-9-102(4)(A)(i)).

4. See, e.g., OR. REV. STAT. § 656.005(7)(a) (providing that "[n]o injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition"); see Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001) (holding that Oregon Constitution did not allow legislature to eliminate both workers' compensation remedy and tort remedy when employment (as in the statute) is not the major contributing cause of the condition).

5. See, e.g., Section 306(f.1)(1)(i) of the Pennsylvania Workers' Compensation Act, PA. STAT. ANN. tit. 77, § 531(1)(i) (injured worker obliged to be treated by designated physician for first ninety days of treatment).

6. See, e.g., GA. CODE ANN. § 34-9-200 (2013 change indicating that, for most injuries, medical care will have to be provided by employer and insurer only for 400 weeks from date of injury).

7. See, e.g., ARK. CODE § 11-9-704(b)(3). See Super. Indus. v. Thomaston, 32 S.W.3d 52, 54-55 (Ark. 2000) (noting 1993 change and, ironically, applying same to detriment of employer).

8. 85A OKLA.STAT. §§ 200-213. The law is called the Oklahoma Employee Injury Benefit Act (effective Feb. 1, 2014).

9. See Nancy Grover, The Future of Workers' Compensation: Is Opt-Out the Answer?, WORKERS' COMPENSATION 2013 ISSUES REPORT (2013) (on file with author).

10. See Coates v. Fallin, 316 P.3d 924 (Okla. 2013) (ruling that legislation was not unconstitutional as an illicit "multiple-subject" bill). The dissent features a harsh condemnation of the law. As of Nov. 13, 2015, other actions are pending in the lower courts.

11. Statement of the American Insurance Association: Legislation Permitting Employer Opt-Out of the Tennessee Workers' Compensation System (Mar. 9, 2015) (on file with author).

12. NAT'L COMM'N ON STATE WORKMENS' COMP. LAWS, THE REPORT OF THE NATIONAL COMMISSION ON STATE WORKMENS' COMPENSATION LAWS 45 (1972), available at http://workerscompresources.com/?page%5Fid=28 (last visited Nov. 9, 2015).

13. This rule was reconfirmed in a 2015 case of the California Supreme Court. See S. Coast Framing, Inc. v. Workers' Comp. Appeals Bd., 349 P.3d 141 (Cal. 2015). See also infra Part V.D.

14. See, e.g., Sapko v. State, 44 A.3d 827, 835 (Conn. 2012) (explaining that in workers' compensation cases "the test of proximate cause is whether the [employer's] conduct is a substantial factor in bringing about the [employee's] injuries").

15. See generally Walker v. Broadview Assisted Living, 95 So. 3d 942 (Fla. Dist. Ct. App. 2012); In re Comp. of Pruitt, 198 P.3d 429 (Or. Ct. App. 2008).

16. See Marvel v. Roane Transp. Serv., 2015 Tenn. LEXIS 587 (Tenn. July 23, 2015) (court rejecting employer argument that new, more restrictive standard should be applied retroactively), available at https://www.tncourts.gov/sites/default/files/marvelc.pdf (last visited Nov. 16, 2015).

17. TENN. CODE § 50-6-102(14).

18. TENN. CODE § 50-6-102(14)(A).

19. TENN. CODE § 50-6-102(14)(B).

20. See, e.g., Cullum v. K-Mac Holding Corp. d/b/a Taco Bell, No. 2014-07-0006 (Tenn. W.C.A.B., filed Dec. 23, 2014) (restaurant worker who, in midst of her work, turned and heard pop in her knee, but could not isolate precisely what she was doing at time, had not shown that she sustained her injury primarily in course and scope of her employment).

21. PA. STAT. ANN. tit. 77, § 531(3).

22. See DONGCHUN WANG, TE-CHUN LIU & VENNELA THUMULA, PHYSICIAN DISPENSING IN

THE PENNSYLVANIA WORKERS' COMPENSATION SYSTEM (Work. Comp. Research Inst. 2013). In a subsequent, September 2014 report, the WCRI stated that "[w]ith an additional year of data, the study continued to find higher and growing prices paid for physician-dispensed drugs ​ ." DONGCHUN WANG, TE-CHUN LIU & VENNELA THUMULA, PHYSICIAN DISPENSING IN PENNSYLVANIA, 2ND EDITION (Work. Comp. Research Inst. 2014).

23. See S. Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark), 349 P.3d 141, 146 (Cal. 2015) (remarking, in explaining why tort concept of proximate cause does not apply in workers' compensation cases, that "the workers' compensation system is not based upon fault"); Folta v. Ferro Eng'g, 43 N.E.3d 108, 112 (Ill. 2015) (referring to workers' compensation as "a system of no-fault liability").

24. See Melendrez v. Ameron Corp., 240 Cal. App. 4th 632, 638 (Ct. App. 2015) (employer was entitled to immunity in negligence case filed by widow of employee/mesothelioma victim).

25. See David B. Torrey, Recent Developments in Workers' Compensation and Employers Liability Law, 50 TORT TRIAL & INS. PRAC. L.J. 667, 672-73 (2015).

26. Florida Workers' Advocates v. State of Florida, Office of the Attorney General, No. 11:13661 CA 25 (11th Jud. Cir. Miami-Dade Cty. (filed Aug. 13, 2014) (slip opinion on file with the author), available at http://www.floridaconstructionupdate.com/files/2014/11/ Padgett-v.-State-of-Florida.pdf (last visited Nov. 10, 2015).

27. Id. at 19-20.

28. State of Florida v. Florida Workers' Advocates, 167 So. 3d 500 (Fla. Dist. Ct. App. 2015).

29. Id. at 505.

30. Id. at 506. The plaintiffs have sought review in the Florida Supreme Court. Memorandum to WCJ Torrey from Deputy Chief Judge of Compensation Claims David W. Langham (Nov. 10, 2015) (on file with author). Three other cases are pending in that court addressing the constitutionality of the Act in the wake of retractive changes. See Stahl v. Hialeah Hosp., 160 So. 3d 519 (Fla. Dist. Ct. App. 2015) (requirement of employee co-pay did not render law unconstitutional), appeal granted (Fla. Oct. 13, 2015); Castellanos v. Next Door Co., 124 So. 3d 392 (Fla. Dist. Ct. App. 2014) (restriction on attorney fees did not render Act unconstitutional), appeal granted, 145 So. 3d 822 (Fla. Mar. 24, 2014); Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. Dist. Ct. App. 2013) (restriction on permanent partial disability, leaving severely disabled worker without remedy, disallowed), appeal granted, 143 So. 3d 924 (Fla. 2013).

31. See STEVEN BABITSKY & JAMES J. MANGRAVITI, UNDERSTANDING THE AMA GUIDES IN WORKERS' COMPENSATION, FIFTH EDITION 3-1 et seq. (5th ed., 2015 Supp.).

32. See Section 306(a.2) of the Pennsylvania Workers' Compensation Act, PA. STAT. ANN. tit. 77, § 511.2.

33. Protz v. Workers' Comp. Appeals Bd. (Derry Area School Dist.), 124 A.3d 406 (Pa. Commw. Ct. 2015). This summary of Protz is prepared exclusively by Judge Torrey and not by Mr. McIntyre.

34. Id. at 408.

35. Id.

36. See Section 306(a.2) of the Pennsylvania Workers' Compensation Act, PA. STAT. ANN. tit. 77, § 511.2(2).

37. Protz, 124 A.3d at 411.

38. Id. at 416.

39. Id. at 412 (citing Ass'n of Settlement Cos. v. Dep't of Banking, 977 A.2d 1257 (Pa. Commw. Ct. 2009)).

40. Id. (citing Blackwell v. Commonwealth, State Ethics Comm'n, 567 A.2d 630 (Pa. 1989)).

41. Id. (citing Gilligan v. Pennsylvania Horse Racing Comm'n, 422 A.2d 487 (Pa. 1980)).

42. Id. at 416. In so holding, the court distinguished a 2010 precedent. See Pennsylvania Builders Ass'n v. Dep't of Labor & Indus., 4 A.3d 215 (Pa. Commw. Ct. 2010). In Pennsylvania Builders Association, the court rejected the proposition that the legislature had undertaken unlawful delegation in enacting a provision of the Construction Code requiring the Department of Labor & Industry "to promulgate regulations adopting the then-current versions of the National Building Code and the International One and Two-Family Dwelling Code." Id.

43. Id. at 417 (Simpson, J., dissenting).

44. Rodriguez v. Brand W. Dairy, 356 P.3d 546 (N.M. Ct. App. 2015).

45. Id. at 554.

46. Id. at 555.

47. Rodriguez v. Brand W. Dairy, 2015 N.M. LEXIS 322 (N.M. Aug. 31, 2015) (cert. granted).

48. Stephan A. Riesenfeld, Forty Years of American Workmen's Compensation, 7 NAT'L ASS'N OF CLAIMANTS' COMP. ATTY'S L.J. 15 (1951).

49. Lewis v. L.B. Dynasty, 770 S.E.2d 393, 397 (S.C. 2015).

50. Id. at 397.

51. Nev. Dep't of Corrections v. York Claims Servs., 348 P.3d 1010, 1013 (Nev. 2015).

52. NEV. REV. STAT. § 616B.028(1) (emphasis added).

53. York Claims Servs., 348 P.3d at 1013-14.

54. Id. at 1014.

55. See, e.g., Paul Holdsworth, America's (Not so) Golden Door: Advocating for Awarding Full Workplace Injury Recovery to Undocumented Workers, 48 UNIV. OF RICHMOND L. REV. 1369 (2014); see also Gregory T. Presmanes & Seth Eisenberg, Hazardous Condition: The Status of Illegal Immigrants and Their Entitlement to Workers' Compensation Benefits, 43 TORT TRIAL & INS. PRAC. L.J. 247 (2008).

56. Campos v. Daisy Constr. Co., 107 A.3d 570 (Del. 2014).

57. Id.

58. Id.

59. Id.

60. See generally Steven P. Perlmutter, The Law of "Leased Worker" and "Temporary Worker" Under a CGL Policy, 45 TORT TRIAL & INS. PRAC. L.J. 761 (2010). For an extensive explanation by a California court, see Diamond Woodworks, Inc. v. Argonaut Insurance Co. ,135 Cal. Rptr. 2d 736, 741 (Cal. Ct. App. 2003) ("[s]uch an enterprise contracts with client companies to provide leased labor and labor-related services, i.e., payroll, safety and tax services and employment benefits, including workers' compensation insurance. In a typical arrangement, the employee leasing company does not bring employees to the client company. Rather, the client company already has the personnel, and it selects which of its workers will become employees of the leasing company and which, if any, will be maintained as the client company's direct employees​ ."), overruled in part on other grounds, Bullock v. Phillip Morris, USA, Inc., 131 Cal. Rptr. 3d 382 (Cal. Ct. App. 2011).

61. See, e.g., Wedeck v. Unocal Corp., 69 Cal. Rptr. 2d 501 (Ct. App. 1997) (skilled chemist who had been supplied on long-term basis to oil refinery employer by temporary agency was employee of both agency and refinery).

62. Ky. Uninsured Emp'rs Fund v. Hoskins, 449 S.W.3d 753 (Ky. 2014).

63. Id. at 755.

64. Id. at 763.

65. See KY. REV. STAT. § 342.615(1)(d).

66. Est. of Sullwoldv. Salvation Army, 108 A.3d 1265 (Me. 2015).

67. Id. at 1270.

68. Petrik v. JJ Concrete, Inc., 865 N.W.2d 133 (S.D. 2015).

69. See McKnightv. Consol. Concrete Co., 186 So. 2d 144, 148 (Ala. 1966) (remarking, in denying benefits to widow of worker who had perished during horseplay of his own design: "In early compensation law, aggressor and victim alike were denied compensation in horseplay cases. But it seems to be the rule now in practically all jurisdictions that a non-participating victim of horseplay may recover compensation ​ . But as to the claim where the injury resulted from the employee's own horseplay, the courts are not in accord and the decisions cannot be reconciled ​ .").

70. Petrick, 865 N.W.2d at 135.

71. Id. at 142.

72. See Section 301(c)(1) of the Pennsylvania Workers' Compensation Act, PA. STAT. ANN. tit. 77 § 411(1) ("The term 'injury arising in the course of his employment,' as used in this article, shall not include an injury caused by an act ofa third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment.").

73. McDaniel v. W. Sugar Coop., 867 N.W.2d 302 (Neb. Ct. App. 2015).

74. Id. at 305.

75. Id. at 307.

76. MONT. CODE § 39-71-105(6)(a) ("It is the intent of the legislature that ​ (a) stress claims, often referred to as 'mental-mental claims' and 'mental-physical claims,' are not compensable ​ . The legislature recognizes that these claims are difficult to objectively verify and that the claims have a potential to place an economic burden on the workers' compensation and occupational disease system. The legislature also recognizes that there are other states that do not provide compensation for various categories of stress claims and that stress claims have presented economic problems for certain other jurisdictions. In addition, not all injuries are compensable under the present system, and it is within the legislature's authority to define the limits of the workers' compensation and occupational disease system.").

77. Section 108(m.1) of the Pennsylvania Workers' Compensation Act, PA. STAT. ANN. tit. 77, § 27.1(m.1). See Section 301(e) of the Pennsylvania Workers' Compensation Act, PA. STAT. ANN. tit. 77, § 413.

78. Arrant v. Graphic Packaging Int'l, Inc., 169 So. 3d 296 (La. 2015).

79. Id. at 300.

80. Id. at 308.

81. Id. at 301.

82. Id. at 306.

83. Id. at 307.

84. Id. at 308.

85. Mattress Firm, Inc. v. Mudryk, 2015 Tenn. LEXIS 690 (Tenn. 2015), available at http://www.tncourts.gov/courts/workers-compensation-panel/opinions/2015/08/24/mattress-firm-inc-et-al- v-deanna-mudryk (last visited Nov. 16, 2015).

86. Id., slip op. at 8 (citing Beck v. State, 779 S.W.2d 367, 370 (Tenn. 1989)).

87. Gorre v. City of Tacoma, 357 P.3d 625 (Wash. 2015).

88. See WASH. REV. CODE § 51.32.185(1).

89. Gorre, 357 P.3d at 630.

90. REV. CODE WASH. § 51.32.185(4).

91. Gorre, 357 P.3d at 641.

92. Id. at 633.

93. S. Coast Framing, Inc. v. Workers' Comp. Appeals Bd., 349 P.3d 141 (Cal. 2015).

94. Id. at 143.

95. Id.

96. Id. at 144.

97. Id. at 145.

98. Id. at 151.

99. For a major Ohio 2015 declaratory judgment case discussing the exception, see Hoyle v. DTJ Enterprises, Inc., 36 N.E.3d 122 (Ohio 2015) (under Ohio intentional tort exception, as amended in 2005, injured worker must prove deliberate intent, not mere substantial certainty and, as insurance coverage is not, as a matter of public policy, permitted for acts of deliberate intent, insurance carrier was necessarily free of liability).

100. Melendrez v. Ameron Corp., 240 Cal. App. 4th 632 (Cal. Ct. App. 2015).

101. Id. at 636.

102. Id. at 636-37, 636 n.2.

103. Id. at 637.

104. Id.

105. Id.

106. Id.

107. Id. at 639-40.

108. Id. at 640 (citing S. Coast Framing, Inc. v. Workers' Comp. Appeals Bd., 349 P.3d 141 (Cal. 2015)).

109. See id. at 642-43.

110. Id. at 642 ("the exclusivity provisions encompass all injuries 'collateral to or derivative of' an injury compensable by the exclusive remedies of the [Workers' Compensation Act]​ .") (quoting Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 14 P.3d 234, 243 (Cal. 2001)).

111. Tooey v. AK Steel, 81 A.3d 851 (Pa. 2013). See David B. Torrey, Recent Developments in Workers' Compensation and Employers Liability Law, 50 TORT TRIAL & INS. PRAC. L.J. 667, 690-91 (2015).

112. Folta v. Ferro Eng'g, 14N.E.3d 717 (Ill. App. Ct. 2014), reversed, 43 N.E.3d 108 (Ill. 2015).

113. Folta, 43 N.E.3d 108.

114. See id. at 121.

115. See id. at 123.

116. See id. at 122 (citing Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222 (Ill. 1990)).

117. See id.

118. Id. at 115 (citing, among others, Kieffer & Co. v. Indus. Comm'n, 636 N.E.2d 7 (Ill. 1994)).

119. Id. at 116.

120. See Moushon v. Nat'l Garages, Inc. 137 N.E.2d 842 (Ill. 1956).

121. See Duley v. Caterpillar Tractor Co., 253 N.E.2d 373 (Ill. 1969).

122. Folta v. Ferro Eng'g, 43 N.E.3d 108, 117 (Ill. 2015).

123. Moore v. K-Mart Corp., 769 S.E.2d 35 (W. Va. 2015).

124. Id. at 37.

125. Id.

126. W. VA. CODE § 85-20-62.2.

127. Moore, 769 S.E.2d at 39. The ALJ was referring to West Virginia Code § 23-4-3, which provides: " [A]ll ​ [employers] or their agents, shall disburse and pay for personal injuries to the employees who are entitled to benefits ​ as follows: (1) Sums for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items as may be reasonably required ​ ."

128. Moore, 769 S.E.2d at 42.

129. Id. at 40-41.

130. Id.

131. Id. at 41.

132. See David B. Torrey, Recent Developments in Workers' Compensation and Employers Liability Law, 50 TORT TRIAL & INS. PRAC. L.J. 667, 694 (2015).

133. Vialpandov. Ben's Auto. Servs., 331 P.3d975 (N.M. Ct. App.), cert. denied, 331 P.3d 924 (N.M. 2014).

134. Id.

135. Id.

136. Id.

137. Lewis v. Am. Gen. Media, 355 P.2d 850, 859 (N.M. 2015).

138. Id. (citing, respectively, 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. § 2(a)).

139. Id. at 858-59.

140. Id. at 853-54. As for this limitation on who may testify, see N.M. Stat. § 52-1-51(C). Only authorized health care providers and appointed IMEs may testify.

141. Lewis, 355 P.2d at 854.

142. Maezv. Riley Indus., 347 P.3d 732 (N.M. 2015).

143. Id. at 735.

144. Id.

145. Id. at 738.

146. Coats v. Dish Network, 350 P.3d 849 (Colo. 2015).

147. Id. at 850-51.

148. Id. Colorado law features a statute that "generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee's 'lawful' outside-of-work activities." Id. at 850. See COLO. STAT. § 23-34-402.5(1).

149. Coats, 350 P.3d at 852.

150. Id. at 850.

151. See, e.g., CAL. LABOR CODE § 3858.

152. N.Y. WORK. COMP. § 29 ("If [the] injured employee ​ has taken compensation ​ but has failed to commence action against [the third party] within [six months] ​ such failure shall operate as an assignment of the cause of action ​ for the benefit of the ​ insurance carrier liable for the payment of such compensation."). See, e.g., Graziano v. Medford Plaza Assocs., Ltd., 769 N.Y.S.2d 546 (N.Y. App. Div. 2003) (illustrating operation of assignment provision).

153. Liberty Mut. Ins. Co., as subrogee of George Lawrence v. Domtar Paper Co., 113 A.3d 1230 (Pa. 2015).

154. Baytos v. Family Dollar, 2015 WL 1610075 (Ky. Ct. App. 2015).

155. Id. at *2 (quoting Brashear v. Old Straight Creek Coal Corp., 32 S.W.2d 217, 218 (Ky. 1930)).

156. See David B. Torrey, Compromise Settlements Under State Workers' Compensation Acts: Law, Policy, Practice and Ten Years of the Pennsylvania Experience, 16 WIDENER L.J. 199, 331-34 (2007).

157. Owens v. Lehigh Valley Hosp., 103 A.3d 859 (Pa. Commw. Ct. 2014).

158. Id. at 868.

159. Id.

160. Id.

161. See Daubert v. Merrill Dow Pharm., Inc., 113 S. Ct. 2786 (1993).

162. FLA. STAT. ANN. § 90.702. See Giaimo v. Florida Autosport, Inc., 154 So. 3d 385 (Fla. Dist. Ct. App. 2014) (discussing adoption of standard).

163. Booker v. Sumter Cty. Sheriff's Office, 166 So. 3d 189, 191 (Fla. Dist. Ct. App. 2015).

164. Id. at 192-93.

165. Id. at 193.

166. See, e.g., id. at 194 (citing an Eleventh Circuit case recounting "some of the flexible and non-flexible factors which a judge may consider for assessing the reliability of the methodology used by experts​ .") (citing United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001)).

167. Booker, 166 So. 3d at 192-93.

168. Id. at 194.

169. Id. at 195.

170. Id.

~~~~~~~~ By David B. Torrey and Lawrence D. McIntyre

David B. Torrey is a Workers' Compensation Judge in Pittsburgh and is Adjunct Professor of Law at the University of Pittsburgh School of Law.

Lawrence D. McIntyre, Esq., graduated from the University of Pittsburgh School of Law in 2015 and is a Law Clerk to The Honorable David N. Wecht, Supreme Court of Pennsylvania.

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