LexisNexis Workers' Compensation eNewsletter

Vol 1, Issue 16

Find Solutions & Strategies July 12, 2010

New York Aggregate Trust Funds

Court Refuses to Strike Down Insurer's Deposit Requirement

In This Issue

-FEATURED ARTICLE: aggregate trust funds

-LARSON'S SPOTLIGHT: attorney's fees, exclusive remedy, injury en route to medical appointment, total disability, off-duty torts

-BLOG ROUND UP: fraud, utilization review, DE rates, arbitration, federalization of WC

-NATIONAL NEWS

-STATE NEWS

-WHAT'S NEW IN LARSON'S: deliberate avoidance of employment relationship

-LARSON 50% OFF SALE

-eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

The 20th anniversary of the Americans with Disabilities Act is July 26th. I'll be featuring some new articles on the ADA written by special guest contributors this month.

Sincerely,
Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

Americans with Disabilities Act 20th Anniversary: July 26, 2010

Handicap symbol American Flag

Census Bureau ADA Facts

100 Days to the ADA Blogs

ADA Blogs by Jonathan Mook

Workers' Comp Profile

Philip J. Fulton, of Philip J. Fulton Law Office, Columbus, OH, is past Chairperson of the Franklin County Trial Lawyers Association Workers' Compensation Section, past Chairman (twice) of the Ohio Academy of Trial Lawyers' Workers Compensation Section, past President of the Ohio Association for Justice (formerly the Ohio Academy of Trial Lawyers) (2005), an Adjunct Professor at Capital University Law School teaching workers' compensation law, and the author of Ohio Workers' Compensation Law (LexisNexis). He also serves on the Larson's National Workers' Compensation Advisory Board.

FEATURED ARTICLE

New York ATF Deposit Requirement Upheld. One of the keys provisions in the 2007 workers' compensation reform bill was the requirement that the private carriers make a deposit into the Aggregate Trust Fund in all cases where a claimant was classified as having a permanent partial disability, if the classification took place on or after July 1, 2007. In two separate decisions involving six cases the Appellate Division - Third Department unanimously affirmed the Workers' Compensation Board and found no basis to strike down the Aggregate Trust Fund deposit provision of the Workers' Compensation Law. > Read more.

By Ronald Balter, Esq., Caruso, Spillane, Leighton, Contrastano, Ulaner & Savino, P.C. Co-author of New York Workers' Compensation Handbook (new 2010 edition now on sale).

Larson's spotlight: 5 recent cases you should know about

Tom Robinson thumbnail Larson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

> Read the case summaries and court decisions.

#1 CA: Trial Court Lacks Jurisdiction to Hear Attorneys' Class Action for Unpaid Interest on Awards of Attorney Fees

#2 CA: Plaintiff's Allegations of Intentional Infliction of Emotional Distress Are Barred by the Exclusive Remedy Provisions of the State's Workers' Compensation Law

#3 NE: Injuries Sustained in Traffic Accident on Way to Hospital for Treatment of Earlier Compensable Injury Are Also Compensable

#4 NC: Worker Awarded Total Disability Benefits Where Cancer Prevented Surgery to Repair Her Knee That Had Been Injured in Work-related Accident

#5 NC: Employer Not Liable for Off-Duty Torts of its Employees

blog round up

Fraud Sign

Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, Investigations 7/8/2010. Read it.

Has the World Gone Mad? DE IAB decision rules that doctor's testimony satisfies Section 2322F(a), by Cassandra Roberts. Read it.

Delaware: New (Lower) Workers' Comp Rates Effective June 22, 2010, by Cassandra Roberts. Read it.

Using Arbitration Forums Special Arbitration Agreement to Efficiently Pursue Statutory Right to Reimbursement of Workers Compensation Benefits, by Kenneth Murray. Read it.

The Truth About Federalization of Workers' Comp, by Rocky Comp Raccoon, an anonymous blogger. Read it.

national NEWS

> A.M. Best to Hold Webinar on Workers' Comp Coverage 7/20/2010
> OSHA Files Worker Safety Complaint Against USPS
> Top US DoL Officials to Travel to Gulf Coast to Meet With Affected Workers
> Rising Temperatures Increase Risks for Workers
> How to Prevent Deaths and Injuries of Fire Fighters
> Broadspire Welcomes Charles Harmon as Director of New Business

state NEWS

> CA: DWC Posts Revised Draft Physician Fee Schedule for Public Comment
> CA: Orange County Insurance Broker Gets Hit With $2M Civil Judgment, 10 Years in Jail
> CA: Workers' Comp Insurers Lost $1.5B in Underwriting 2009
> CA: WCIRB Spotlight Series Focuses on Experience Rating Eligibility
> CO: Democratic Lawmakers Ask Obama Administration to Help Injured Nuke Workers
> CT: Stewart M. Casper Elected Chairperson of Traumatic Brain Injury Litigation Group
> CT: Workers' Compensation Commissioner Donald H. Doyle, Jr. to Retire
> DC: Court Denies Post-Traumatic Stress Disorder Claim of Worker Who Underwent Drug and Alcohol Testing
> DC: Sedgwick CMS and Modern Medical Fight for Payment From Risk Management Director
> HI: Governor Lingle Officially Vetoes Workers' Comp Bill
> IL: Emergency Rules Filed on Implants, ASTCs
> MD: Lundy Promoted to IWIF's HR Vice President
> MI: David J. DeGraw Elected Chairperson of State Bar of Michigan's Workers' Compensation Section
> MI: ACLU Sues Wal-Mart on Behalf of Cancer Patient Fired for Legally Using Medical Marijuana
> MO: Labor Director Says Workers' Comp Prosecution Referrals Up 84 Percent
> NV: Employers Holdings Inc. Lays Off 161 Workers Nationwide, 44 in Reno
> NV: Court Dismisses Stone River (formerly WorkingRx) 3rd Party Collections Claims
> NV: New Insurance Commissioner Selected
> NY: WCB Chair's Statement on Release of the Medical Treatment Guidelines Proposed Regulations
> NY: WCB Publishes Proposed Regulations Adopting Medical Treatment Guidelines
> NY: Suspect Arrested in Alleged Law Firm Swindle
> NY: Brooklyn Biz Co-Owner Repays $100G in Comp Fraud
> NY: Wal-Mart Spends More than $1M in Legal Fees to Contest $7K OSHA Fine in Trampling Death
> OH: BP Stock Price Decline Hits Ohio BWC Portfolio
> OK: Workers' Comp Judge Runs Controversial Campaign for District Judge
> TX: State Bar to Offer Advanced Workers' Comp Course 8/19/2010-8/20/2010
> TX: Sunset Commission Approves Changes to DWC's Medical Quality Review Process
> TX: DOI Proposes Amendments to IRO
> TX: DOI Issues Call for 2Q Experience Workers' Comp Deductible Plans
> TX: Commissioner of Workers' Compensation Appoints New Medical Advisor
> WV: Workers' Comp Task Force Created to Address Volunteer Fire Dept. Dilemna
> WI: Supreme Court Hands Victory to Workers' Comp Insurers in Traumatic Injury Cases

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what's new in larson's workers' compensation law

Lexis.com subscribers to Larson's Workers' Compensation Law can link to the chapter discussion below.

Find out more about how to become a Larson's online subscriber by contacting: Caroline.Conway@lexisnexis.com.

Deliberate Avoidance of Employment Relation. At the core of the workers' compensation bargain is the employer-employee relationship. Where that relationship does not exist between the parties, as where there has been a conscious and deliberate effort to substitute an independent contractor relationship for an ordinary contract of employment, workers' compensation law usually acknowledges the desires of the parties and does not offer the burden and protection of the jurisdictions compensation act.

Chapter 63, which discusses whether such deliberate substitution is effective to avoid compensation liability, has also been upgraded and revised. In most cases, the actual facts of the relationship control; the legal name and form given it do not. While the law generally acknowledges that parties should be free to designate their working relationships as outside the usual bonds of employment, it must be remembered that society is also a party to the "workers' compensation bargain;" it has an interest in assuring itself that the cost of worker "wear and tear" is fully included in the price of the good or service and not borne disproportionately by the public.

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