National Edition Banner March 2010
Vol 2, Issue 4

Find Solutions & Strategies                           January 24, 2011

Video Blue MouseSex, Lies and Videotape

 

Injured worker's pornographic videos posted on the Internet show violation of his medical restrictions

In This Issue
-INTERNET; VIDEOTAPE
-LARSON'S SPOTLIGHT: Claimant Status, Horseplay, Average Weekly Wage, Medical Evidence, Notice of Injury
-TOP 10 MUST-READS IN THE BLOGOSPHERE
-BLOG ROUND UP AT THE WCLC: Fraud, DE cat tribute
-MSP COMPLIANCE BOOK
-NATIONAL NEWS
-STATE NEWS
-WHAT'S NEW IN LARSON'S: Course of employment
-eNEWSLETTER ARCHIVES
A Note From the Editor
Robin Kobayashi 2010
Dear WC Professionals:
 
I've recently rented "The Social Network" and it got me thinking about all things Internet and workers' comp this past week. So I've dug up some interesting workers' comp cases using the LexisNexis services. Here's the first case from North Carolina in my ongoing series on the use of the Internet and social media as evidence in comp cases.

Sincerely,
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

Workers' Comp Profile

Blog Mouse Blue Colorado Workers Comp Blog, published by Richard E. Falcone, Esq. One of the best written blogs for practitioners, Colorado Workers Comp Blog is an award winning source of news, commentary, legislative and administrative updates, and judicial decisions on Colorado Workers' Compensation law and Social Security Disability law. Colorado Springs Attorney Richard Falcone writes from the perspective of the injured and disabled worker in an engaging and informative style, focusing on current topics such as the use of social media by clients, injuries from high heels, employer surveillance of injured employees, and Pinnacol Assurance, Colorado's state-chartered worker's compensation insurance fund. The Blog was named a Top 25 Blog for 2010 by LexisNexis. 
 

featured article

Sex, Lies and Videotape: Injured worker's pornographic videos posted on the Internet show violation of his medical restrictions, by Robin E. Kobayashi

 

This is the first in a series on the use of the Internet and social media as evidence in workers' compensation cases.

 

Mark Zuckerberg, CEO of Facebook, has said "You have one identity. The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly... Having two identities for yourself is an example of a lack of integrity." [See The Facebook Effect, by David Kilpatrick]

 

Regardless of whether you agree or disagree with those who find Zuckerberg's statements "fraught with problems, ignorance, and arrogance" [see MichaelZimmer.org], this concept of having dual personalities was never more apparent than in a 2010 decision by the North Carolina Industrial Commission in which an injured worker was a healthcare technician by day and a pornographer by night.

 

More importantly, the case sheds some light on how the Internet has impacted questions of evidence and discovery in workers' compensation law.

 

At a hearing before a Deputy Commissioner, the defendant, a self-insured employer, sought to admit into evidence graphic visual depictions of plaintiff performing sexual acts to show that plaintiff was violating his medical restrictions in various ways and that the material was created while he was out of work receiving workers' compensation disability benefits. Plaintiff objected, challenging the material's relevancy and asserting that the probative value of these items was outweighed by their prejudicial effect.

 

The Deputy Commissioner overruled plaintiff's relevancy objection pursuant to North Carolina Rule of Evidence 401, finding that there were some dates associated with the videos that had been posted on the Internet and such dates were subsequent to plaintiff's date of injury; therefore, the videos were created during a time period relevant to this claim.

 

The Deputy Commissioner further determined that the prejudicial effect of the contested evidence was significantly outweighed by its probative value and easily complied with the standard for admission under North Carolina Rule of Evidence 403 in three specific instances:  > Read more.

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

Larson's Spotlight reports noteworthy workers' comp cases each week. This list was c5 spotlightompiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law. 


#1 - OH: When is a "Claimant" Not A Claimant?  As It Was With the Clinton-Lewinski Case, It Depends Upon What the Meaning of "Is" Is

#2 - VA: High Court Allows Horseplay Claim of Non-Participating Victim  

 

#3 - NY: Modification of Average Weekly Wage Was Appropriate Where Injured Worker Was Younger than 25 at Time of Injury and Worked Only Part-time

 

#4 - OR: Loading Coffee into Truck, Not a Sneeze, Caused Worker's Herniated Disc
 

#5 - NY: Delay in Giving Employer Notice of Injury Excused

top 10 must-reads in the blogosphere & beyond

BlogosphereWe recommend the following workers' comp-related articles recently posted in the Blogosphere and Beyond: 

 

 

 

 

 

1. TPA pay deals raise concerns - Buyers seek clarity on fee arrangements in vendor contracts, by Roberto Ceniceros, Business Insurance

2. Lawsuit Loans Add New Risk for the Injured, by Binyamin Appelbaum, The New York Times

3. Insurance Adjuster Attempts to Use Nurse Case Manager Against Injured Worker's Interests, by Jodi Ginsberg, Georgia Workers Compensation Law Blog

4. Strained States Turning to Laws to Curb Labor Unions, by Steven Greenhouse, The New York Times

5. Toward a 21st-Century Regulatory System, by Barack Obama, The Wall Street Journal

6. E-Discovery Sanctions Reach All-Time High for Litigants and Lawyers, by Debra Cassens Weiss, ABA Journal

7.  A workers' comp scandal, by Jeremy Smerd, Crain's New York Business

8. The True Mover (Workers' compensation in the U.S. is becoming an underwriters' nightmare and perhaps the trigger for the oft-predicted hard market), by Dan Reynolds, Risk & Insurance

9. Longtime Workers' Comp Veteran Greg Krohm Shares Insights, Risk & Insurance

10. Questioning the Evaluating Physician, by Bill Zachry, Risk & Insurance

blog round up at the lexisnexis workers' compensation law community
Fraud Sign Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, Investigations - 1/20/2011. Read it 

 

 

Cassandra RobertsSometimes It's Not Just About the Law: Reflections on My Cat, by Cassandra Roberts. Read it

how to achieve medicare secondary payer compliance

Take Control of Your Insurance Settlements With A Brand New Resource From LexisNexis!

 

Thumbs Up  "Finally, someone delivers a clear, concise reading in this area, with some definitive answers for both lawyers and claims specialists and accurate reporting dealing with MSP compliance and MSA allocations with all of the necessary resources found in one place."

 

- Brad Bleakney, Esq., Bleakney & Troiani. Read his complete review at Illinois Workers Compensation blog.

 

Thumbs Up  "An excellent new book ... a one-of-a-kind resource ... [Jennifer C. Jordan's] straight-talk is much appreciated when it comes to this illusive area of the law."

 

- Rebecca Shafer, JD, President, Amaxx Risk Solutions, Inc. Read her complete review at Workers Comp Kit Blog.

 

There are many people who don't understand that the Centers for Medicare and Medicaid Services' approval process of a Medicare set-aside arrangement is voluntary and carries P1130 R12 coveran inherent cost. In fact, many of the decisions that need to be made in a settlement negotiation are risk management decisions rather than being truly Medicare Secondary Payer-oriented. Once you understand why CMS wants what it wants, you will realize that its preference may not be the only way to achieve MSP compliance. The Complete Guide to Medicare Secondary Payer Compliance, Jennifer C. Jordan, Editor-in-Chief, will help you take control of your insurance settlements. > Read more about the contents (1,350 pages). List Price: $179



national news

> A 14-Point Workers' Comp Annual Checkup That Can Protect You Against WorkComp Claims

state news

> CA: Insurance Commissioner Reiterates Support for Federal Healthcare Reform Law

CA: SCIF President & CEO Tom Rowe Pushes for Leaner, More Efficient Organization

> CA: SCIF Hires New Chief Risk Officer, Chief Financial Officer

> CO: Pinnacol Execs Refuse to Resign 

> FL: DWC Adopts New Rule on Compensation Notice Effective 1/30/2011

FL: Court Affirms IC's Decision to Keep Texas Insurer From Doing Business in State

FL: CFO Sends Letter To BP Claims Administrator

> IL: Judge Grants Parties More Time to File Paperwork in Class Action Suit Involving PPOs

IL: Workers' Comp Reform Tabled for Now, Good News for Injured Workers Says Claimant's Firm
>
IL: IWCC Reports No Workers' Comp Legislation During 96th General Assembly
>
IL: IWCC Posts Announcement Regarding Peoria Office

> IL:  Workers' Comp Attorney's License Suspended for Making Sexual Advances to Clients

IL: Bill Introduced to Address Denial of Medical Payments

> KS: Commissioner Names General Counsel

> LA: LWCC Offering Free Coffee Break Webinars on Safety and Claims Topics

> MD: Bill Would Add Self-Insured Representative to Joint Committee on Workers' Comp  Benefit and Insurance Oversight

> MA: AG Sworn In For 2nd Term

MA: Class Action Status Granted in Lawsuit Against Workers' Comp Insurer Beacon Mutual

> MN: U.S. Attorney's Office Forms Civil Frauds Unit

> MO: Senate Names Small Business, Insurance and Industry Committee Members to Tackle Workers' Comp Changes

MO: Business Coalition Pushes for Change in Co-Worker Negligence Lawsuits

> MT: Panel Seeks Lawmakers Support on Workers' Comp Proposal

> MT: House Clears Bill to Deny Workers' Comp to Illegal Immigrants

> MT: House Workers' Comp Bill on Hold, Senate Bill to Move Forward

> NV: Insurance Commissioner Lowers Workers' Comp Costs 3.9 Percent

> NJ: Bill Filed to Create Presumption for WTC First Responders

> NM: Supreme Court Asked to Reinstate Director of Workers' Compensation Administration

> NY: SID Unveils Improved Website Design

> NY: WCB Hosted Q&A On MTGs

> NY: WCB Posts New and Revised Forms

NY: Insurance Dept. Initiates Insurance Filings Modernization Efforts

> NC: DOL Releases 2010 Workplace Fatality Figures

> OH: IC Rehires Tom Adams, Promoted to Executive Director

> OH: Proposed Changes to NCCI Classification Codes Will Impact BWC Premiums

> OH: GOP Vice Chair of House Commerce & Labor Committee Seeks to Privatize Workers' Comp

> OK: WCC Announces Michael Clingman to Serve as Court Administrator Effective 1/12/2011

> SC: WCC Proposes Rule Change to Cancellation Notice of Workers' Comp Insurance (see p. 48)

> TX: DWC Announces Dec Enforcement Actions

> TX: WCC Adopts Amendments Of Review Of Employer Report Of Injury

> TX: DWC Proposes Rule for Preferred Provider Benefit Plans, Network Adequacy Requirements

> UT: Bill Attempts to Reign In Reach of LLCs to Reclassify Workers as Owners

> VA: Insurance Regulators Approve Workers' Comp Loss Cost Reductions

> WA: L&I's Fraud-Fighting Program Collects $137M

WI: Senate Passes Tort Reform Bill to Curb Injured Worker Negligence Suits

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Construction Worker's Death After He Had Been Dismissed for the Day Found Compensable. In Clawson v. Burrow, 2010 Tenn. App. LEXIS 306 (Apr. 30, 2010), a Tennessee appellate court affirmed summary judgment to an employer on exclusive remedy grounds where a construction zone "flagger" was struck and killed by a car that had veered off the highway, plowing into the decedent as she stood behind her personal vehicle that she had parked along the side of the road in an area that had been approved by the employer. That the incident occurred after the decedent had been dismissed for the day and while she was talking to co-workers was insufficient to remove the accident from the course and scope of the employment. [See Ch. 21, 21.06[1][a] n1.1]
 

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