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Christina Lumbreras

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com

You Be the Judge

Worker Injured While Going Above Call of Duty

The court debates whether a worker's travel injury was related to work or to an act of personal generosity.
By: | October 10, 2014 • 2 min read
You Be the Judge

An in-home caregiver for two severely disabled brothers was instructed to arrive at the clients’ home at 7:45 a.m. Her husband also worked as a caregiver for the clients. Her duties include preparing meals for the clients. The clients’ parents were responsible for grocery shopping. The caregiver said that she sometimes provided food if the parents did not have everything they needed. The caregiver was not reimbursed for these groceries.

The caregiver lived 30 miles from the clients’ home. She was not paid mileage or expenses for traveling to work.

The caregiver was riding as a passenger in her husband’s truck. While driving to the clients’ home, they stopped at a gas station. The caregiver went into the store and bought groceries. She planned to use the groceries in her meal preparations for the clients that day. After leaving the gas station, the truck was involved in a serious accident. The caregiver suffered significant injuries, including fractures to her neck and back. She sought workers’ compensation benefits.

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The caregiver maintained that she was “on the clock” and being paid at the time of the accident. The employer disputed this assertion, explaining that the caregiver was not on the clock until she entered the clients’ home and started working.

The Workers’ Compensation Commission denied compensation, finding that the caregiver was traveling to work and not performing employment services at the time of the accident. The caregiver appealed, asserting that her injuries arose out of and in the course of her employment.

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The court explained that the critical inquiry was whether the caregiver was performing employment services at the time of her injuries. The test was whether the injury occurred within the time and space boundaries of employment when the worker was carrying out the employer’s purpose or advancing the employer’s interest.

The court concluded that the caregiver was not performing employment services at the time of the accident. The court said that while her actions in bringing food to the clients may have been “generous and admirable” the actions were “clearly not part of her job duties.”

A is incorrect. The court said that the caregiver was not required or expected to provide groceries for the clients, and she acknowledged that the clients’ father did not ask her to stop and purchase groceries that day. Her stop for groceries was not part of her job duties.

C is incorrect.The court found that the caregiver was not grocery shopping or doing anything related to her job at the time of her injury. She was merely traveling to work.

How the court ruled: B.The Arkansas Court of Appeals held that the caregiver was not entitled to benefits for her injuries. Black v. First Step, Inc., No. CV-14-46 (Ark. Ct. App. 05/28/14).

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | October 6, 2014 • 11 min read
judge

Video Surveillance Doesn’t Block Award of PTD Benefits

State of Louisiana v. Berry,No. 49,186-WCA (La. Ct. App. 08/13/14)

Ruling: The Louisiana Court of Appeal held that a laborer was entitled to permanent total disability benefits.

What it means: In Louisiana, occasional spurts of physical activity as shown on video surveillance will not defeat a valid permanent total disability claim.

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Summary: A laborer for the state Department of Transportation and Development was working with a crew to clear brush and foliage from the side of a highway. While operating a chainsaw, he lost his footing on a steep ditch bank and fell, badly injuring his lower back. The department placed him on temporary total disability, later converting this to supplemental earnings benefits. After his injury, the laborer became a volunteer firefighter. He never went to a fire but made phone calls and scheduled training sessions for other volunteers. He claimed a tax credit for his services as fire chief. He also cut wood, talked to customers, and sold furniture to help out his son’s business. He admitted that he reported income from his son’s business on his tax return but explained that it was to protect his son from creditors.

The department’s claims adjuster conducted video surveillance on the laborer. The investigator observed the laborer riding a tractor and dragging garbage cans out to the road while riding a scooter. The department asserted that the laborer forfeited all benefits for fraud. The Louisiana Court of Appeal held that he was entitled to permanent total disability benefits.

The court explained that a worker seeking PTD benefits must prove his inability to engage in any type of employment. The worker explained that he had not worked since his retirement from the fire department.

The court found the record showed that his condition reached a level at which any employment or self-employment was not physically possible. He admitted that he could sit for a short time, but the pain was a distraction to concentration. He also said that his prescribed medications impaired his memory.

The laborer explained that the income he reported on his tax forms was actually his son’s income. Also, the tax credit was a statutory benefit for volunteer firefighters and did not reflect actual income. The department did not contradict these explanations.

The court also pointed out that over three days of surveillance, the investigator captured six minutes of the laborer performing physical activity. The court found the occasional spurts of activity did not defeat a valid PTD claim.

Quitting Job Doesn’t Prevent Award of Benefits to Technician

Marazas v. Workers’ Compensation Appeal Board,No. 337 C.D. 2014 (Pa. Commw. Ct. 08/11/14)

Ruling: The Pennsylvania Commonwealth Court held that a technician was entitled to benefits.

What it means: In Pennsylvania, a worker can be entitled to benefits for an injury that occurred after he quit his job if he was performing a task that was furthering the employer’s interests.

Summary: A driver technician for Vitas Healthcare quit his job after his manager refused to remove some stops from his itinerary. The manager informed the technician that he had to remove his personal belongings from the truck, and she escorted him to do so. After the technician removed items from the truck, he tripped over a pallet jack while walking to the warehouse on Vitas Healthcare’s premises. He fell on his side and sustained injuries. The technician sought workers’ compensation benefits. The Pennsylvania Commonwealth Court held that he was entitled to benefits.

Vitas Healthcare argued that the technician’s injury was not covered under workers’ compensation because he terminated his employment before he was injured. The court found that the technician was within the course and scope of his employment at the time of the injury.

There was no dispute that the technician’s injury occurred on Vitas Healthcare’s premises. The court pointed out that the technician sustained the injury on his last day of employment, in temporal proximity to quitting, within a reasonable time of being required to be on premises. Also, when the injury occurred, he was performing a task required by Vitas Healthcare. The court concluded that even though the technician quit before he was injured, he was still within the scope of employment because he was acting at Vitas Healthcare’s direction and furthering its interests.

Hospital Doesn’t Win Automatic Payment for Cost of Worker’s Treatment

Gamble v. Twin Cities Concrete Products,No. A13-1409 (Minn. 08/13/14)

Ruling: The Minnesota Supreme Court held that a hospital was not entitled to automatic payment of its medical bill for treatment of an injured worker.

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What it means: In Minnesota, when an employer fails to give a medical provider notice of its right to intervene in a workers’ compensation proceeding, the medical provider is not entitled to automatic payment of its medical bill, unless the medical provider can show the lack of notice resulted in prejudice.

Summary: A worker for Twin Cities Concrete Products injured his back when he fell six or seven feet from a ladder. His doctor recommended surgery, but Twin Cities objected on the ground that it was not reasonable and necessary. The worker obtained approval for the surgery from his union-sponsored benefit plan and underwent surgery. A workers’ compensation judge conducted a hearing and determined that the surgery was not reasonable and necessary. The WCJ ordered Twin Cities to reimburse the benefit plan for the medical bills and concluded that Twin Cities could seek reimbursement of the expenses from the medical providers. The hospital where the worker underwent surgery was not given notice of the hearing. The hospital sought to obtain payment of the unpaid balance of the worker’s medical bills. The Minnesota Supreme Court held that the hospital was not entitled to automatic reimbursement of its charges.

The court explained that a medical provider that treats an injured worker has the right to intervene in the workers’ compensation case. The court previously held that a group health insurer who intervened in a matter and was excluded from participating in settlement negotiations should be awarded full reimbursement by the settlement award. Here, the court held that when an employer fails to give a medical provider notice of its right to intervene in a workers’ compensation proceeding, the medical provider is not entitled to automatic payment of its medical bill, unless the medical provider can show the lack of notice resulted in prejudice.

The court explained that intervention rules adequately protect the rights of an interested party, including a medical provider, that is not given notice of its right to intervene and participate in a hearing or settlement negotiations. Also, the court found that the hospital was not prejudiced by its absence from the hearing.

A judge who dissented in part disagreed with the majority’s opinion that suggested that the hospital had an obligation to reimburse Twin Cities.

Worker’s Self-Reported History of Allergic Reactions Doesn’t Support Award

Ribeau v. Russell Stover Candies,No. 110,533 (Kan. Ct. App. 08/29/14)

Ruling: The Kansas Court of Appeals held that a worker was not entitled to benefits for her claimed allergy.

What it means: In Kansas, a worker cannot prove the existence of an allergy when the only evidence of her exposures and reactions was her own testimony.

Summary: A cook and service worker for Russell Stover Candies claimed that she began developing symptoms of allergies to peanuts and nuts after she was accidentally sprayed in the face with metrin oil and peanut oil. A doctor diagnosed her with peanut and nut allergy based on her self-reported medical history of reactions after exposure to peanuts and nuts. A blood test to screen for allergies was normal. The worker sought workers’ compensation benefits. The Kansas Court of Appeals held that the worker was not entitled to benefits.

The court found that the worker failed to prove the existence of an injury. All objective testing was negative for an allergy to peanuts, nuts, or any other allergy. Also, none of the doctors who examined the worker noted a physical reaction present at the time of treatment that was determined to be an allergic reaction. Nothing in the record corroborated the worker’s history of exposures and reactions except her own testimony.

The court also found that the worker failed to prove a causal connection between the alleged allergy and her work. She admitted to being exposed to peanuts and nuts outside of work throughout the course of her life. Also, the record did not contain evidence about the quantity and quality of the worker’s exposure at Russell Stover, aside from generic statements that there was nut dust in the plant and a comment that the worker could not totally avoid exposure to peanuts and nuts even by wearing a protective mask and gloves. The court concluded that the worker failed to prove a compensable injury.

Comp Denied for Director’s Accident During Lunchtime ‘Personal Frolic’

Jones v. Multicare Health & Educational Services, Inc., et al.,No. 100773 (Ohio Ct. App. 08/28/14)

Ruling: The Ohio Court of Appeals held that a director was not entitled to benefits for the injuries he sustained in a motor vehicle accident.

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What it means: In Ohio, a worker’s injury during a personal frolic does not occur in the course of employment and is not compensable.

Summary: The director of nursing for Multicare was required to travel to the homes of patients to provide in-home care. After taking a patient’s prescription to be filled at a pharmacy and learning that it would take 30 to 45 minutes to fill the prescription, the director traveled to a restaurant eight miles away for lunch. While returning from lunch to pick up the prescription and deliver it to the patient, the director’s vehicle was struck by another motor vehicle, and he was injured. The director sought workers’ compensation benefits. The Ohio Court of Appeals held that he was not entitled to benefits.

The director argued that because he had discretion as to “when, what, and how” to take his lunch break, and that he was in the process of obtaining prescriptions for a patient, he was within the scope of his employment. However, the court found evidence supporting that the director was not within the scope of his employment. His lunch break took him a significant distance from the pharmacy where he was engaged in his job duties. Also, the accident occurred on the exit ramp of a highway that the director had no job-related reason to travel. The court found the injury was related to a personal frolic and did not occur in the course of the director’s employment.

Worker Is Employee of Contractor While Performing ‘Side Work’

OKN Construction Co., LLC v. Isaacs,No. 2014-CA-000408-WC (Ky. Ct. App. 09/05/14, unpublished)

Ruling: In an unpublished opinion, the Kentucky Court of Appeals held that a worker was an employee of a construction company and was entitled to benefits.

What it means: In Kentucky, a contractor can be considered the employer of a subcontractor’s employee if it entered into a contract of employment with the employee for “side work” that was separate and distinct from the contract it entered into with the subcontractor.

Summary: A worker owned and operated a masonry business. The business purchased a workers’ compensation policy which covered its employees but not the worker. The masonry business contracted with OKN Construction to perform masonry work at a store. The owner of OKN also used employees of the masonry business to perform odd jobs at the construction site, paying $25 per man, per hour.

OKN asked employees of the masonry business to help remove old refrigerators and freezers at the site. As the worker helped move a freezer, he tripped over a forklift, and the freezer fell on him. The worker sued OKN and filed a workers’ compensation claim. The lawsuit was settled. The Kentucky Court of Appeals held that the worker was entitled to benefits.

OKN argued that the worker should be bound by his argument during the lawsuit proceedings that he was not an employee of OKN. The court disagreed, explaining that the worker acknowledged that his status as an OKN employee was unclear. OKN agreed to settle the lawsuit before a determination in the workers’ compensation proceedings could be made.

The court found that the worker was an employee of OKN at the time he was injured. The court found that the circumstances indicated that the parties understood that the masonry work required at the jobsite was to be undertaken by the masonry business at a negotiated rate. Other work was made available to the worker at different times and at a different negotiated rate. The court found this established a contract of employment between OKN and the worker for the “side work” that was separate from the contract entered into between OKN and the masonry business.

Snow Plow Driver Wins Benefits for Injury Sustained on Food Run

Kosal v. Sanilac County Road Commission, 28 MIWCLR 61 (Mich. C.A.C. 2014)

Ruling: The Michigan Compensation Appellate Commission found that a driver suffered an injury arising out of and in the course of his employment and that the injury rendered him totally disabled.

What it means: A slight deviation to carry out a personal mission will not bar a worker’s claim for benefits.

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Summary: The commission affirmed the magistrate’s finding that a snow plow driver’s injury, sustained during his work shift when he slipped and fell in a parking lot while exiting his truck to get carry-out food from a restaurant to eat later, arose out of and in the course of his employment. The driver’s work, which required him to drive under treacherous conditions, was inherently dangerous. He provided public safety by ensuring that the roads were passable. Because he was confined to his truck during his workday, it was necessary for the driver to exit the truck for basic human needs. Although the deviation was personal in nature, if completed as intended, it would have only involved a short amount of time. The employer benefited from the driver’s agreement to postpone his lunch period by having the roads timely plowed. Also, the employer acquiesced in the driver’s actions. Under these circumstances, the driver’s injuries were compensable.

A majority of the commission also affirmed the finding of total disability because the driver’s restrictions due to his medication for debilitating headaches rendered him not capable of performing any of the jobs that pay him the maximum wage he earned in the past. Also, the driver did not have a residual wage earning capacity.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | September 28, 2014 • 9 min read
judge

Employer Liable for Unauthorized Back Surgery

Marion County Health Department v. Hill, No. 93A02-1402-EX-69 (Ind. Ct. App. 07/09/14, unpublished)

Ruling: In an unpublished decision, the Indiana Court of Appeals held that an employer was liable for the costs of an assistant’s back surgery.

What it means: In Indiana, a worker is allowed to select medical treatment in an emergency if the employer fails to provide needed medical care or for other good reason.

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Summary: An administrative assistant for the Marion County Health Department felt a muscle pull in his lower back while he was lifting and carrying tables. The department authorized medical treatment for the injury through an occupational health clinic. An MRI revealed a disk extrusion in contact with a nerve root. Physical therapy did not help with the assistant’s pain, and a steroid injection only helped temporarily. Later, the department’s physician released the assistant from his care without any restrictions. The assistant sought further medical treatment on his own with an orthopedic spine surgeon. The surgeon performed surgery. The Indiana Court of Appeals held that the department was liable for the costs of the assistant’s surgery.

The department asserted that it was not required to pay for the assistant’s back surgery because he did not seek prior approval for the surgery. The court concluded that the assistant was not required to seek prior approval because his decision to obtain unauthorized care fell under the “other good reason” exception.

The court found that the assistant acted in good faith when he sought treatment from the surgeon without obtaining the department’s approval. The record also showed that the course of treatment offered by the department was inadequate. Despite the efforts of two physicians and other health care professionals, the assistant still suffered pain which was getting progressively worse. At one visit to the clinic, the assistant used a cane even though the department’s physician concluded less than two months earlier that he was at maximum medical improvement and did not sustain a ratable impairment. The court also found that the surgeon’s treatment was “reasonable and necessary” and improved the assistant’s medical condition.

Officer Secures Total Disability for PTSD 12 Years After Incident

Duncan v. State of Michigan, 28 MIWCLR 47 (Mich. C.A.C. 2014)

Ruling: The Michigan Compensation Appellate Commission granted an open award of benefits to an officer for mental disability injuries due to being held hostage by inmates in 1990.

What it means: In Michigan, a worker’s delayed response to a traumatic event that led to her disability and need to leave work will support an award for benefits.

Summary: The commission affirmed the magistrate’s decision granting an open award of benefits to a corrections officer for mental disability injuries due to being held hostage by inmates in 1990. She returned to work in 1991 but never felt safe in any of the job positions she was assigned. She left work in 2002 and eventually received a duty-related retirement. She alleged mental injury as well as an orthopedic condition. The magistrate found no evidence of a work-related physical injury in 2002. However, the magistrate found that a delayed response to the traumatic work event in 1990 led to the officer’s total disability and necessity to leave work in 2002 and was the cause of her post-traumatic stress syndrome. In affirming, the commission refused to disturb the magistrate’s reasonable choices of medical evidence.

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The commission determined that the magistrate’s finding of total disability due to the 1990 work incident was fully supported by the medical witnesses, treating practitioners, and other examining expert witnesses. The majority of the medical expert witnesses fully supported a finding that the officer was totally disabled and not employable in any occupation suitable to her experience, training, and education.

Firefighter Files Claim for Injury Sustained When Rising from Chair

Chambers v. Monroe County Board of Commissioners, No. A14A0265 (Ga. Ct. App. 07/16/14)

Ruling: The Georgia Court of Appeals held that a firefighter’s knee injury was not compensable because it did not arise out of her employment.

What it means: In Georgia, an injury arises out of a worker’s employment when there is a causal connection between the employment and the injury.

Summary: A firefighter for Monroe County was sitting at a desk watching television. Her supervisor asked her to get up from the desk so he could use it. When she rose from the chair, the firefighter felt and heard a “pop” in her left knee. She underwent knee surgery. The firefighter sought benefits. The Georgia Court of Appeals held that she was not entitled to benefits.

The firefighter testified that she did not get up from the chair in an unusual manner. She offered no testimony to establish a causal connection between her employment and her injury. For example, she did not assert that the chair or desk configuration caused her to lose her balance or strain to reach a standing position, that a work-related emergency such as a fire alarm caused her to jump out of the chair in a hurried manner, or that she came into contact with any object or hazard such as the desk, stairs, or a piece of equipment. The court concluded that the firefighter’s injury did not arise out of her employment.

A dissenting judge opined that where the undisputed evidence shows that the worker was injured while undertaking a physical activity at the express direction of her supervisor, the injury arose out of and in the course of the employment. The judge opined that in this case, there was a sufficient causal connection between the conditions of employment and the resulting injury to warrant compensation.

Worker’s DVT Is Compensable ‘Spill-Over’ Injury

Architectural Wall Systems v. Towers, No. 13-1653 (Iowa Ct. App. 07/16/14)

Ruling: The Iowa Court of Appeals held that a worker’s deep vein thrombosis was a compensable industrial disability.

What it means: In Iowa, if a worker’s injury is not confined to one of the scheduled areas, the injury is compensated industrially by consideration of the worker’s lost earning capacity.

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Summary: An industrial worker/glazier was injured when he twisted and fractured his right ankle while working for Architectural Wall Systems. He underwent surgery to repair the broken ankle. Six weeks after surgery, the worker experienced pain and swelling in his right leg, and he was diagnosed with deep vein thrombosis. A surgeon removed a blood clot and inserted a filter to prevent clots from moving to the worker’s heart or lungs. The worker sought benefits for his DVT. The Iowa Court of Appeals held that the worker’s DVT was a compensable industrial disability.

The court found that AWS was correct that all the medical evidence supported that the injury was confined to the worker’s lower extremity. Each doctor concluded that the DVT was confined to the worker’s right lower extremity. The clots did not travel elsewhere to the body, and the cause of the DVT — trauma to the ankle — restricted the condition to the lower extremity. The court pointed out that the permanent placement of the filter outside of the worker’s leg was evidence of an ongoing disability outside of the leg but still within the lower extremity. The court found that the worker’s DVT represented a “spill-over” injury, which was compensable as an injury to the body as a whole.

The court awarded the worker 60 percent industrial disability. Substantial evidence showed that the worker was on the path to becoming a glazier and was hired in that capacity. The injury substantially impacted his earning capacity. He was unable to reenter the apprenticeship program and become a glazier. Also, his permanent restrictions limited his capacity to perform manual labor, the only work for which he was reasonably suited.

Worker’s Horseplay Nixes Petition for Benefits

Barrett v. Service Management Systems, Inc., 29 PAWCLR 118 (Pa. W.C.A.B. 2014)

Ruling: The Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s decision denying benefits to a worker, who was injured when the utility vehicle he was driving rolled over. Evidence indicated the worker was not in the course and scope of his employment at the time of the accident.

What it means: In Pennsylvania, a claimant’s injury that is caused by his horseplay, rather than a condition of the employer’s premises, is not compensable.

Summary: A worker testified he was returning to the work area with a lunch he purchased at a nearby gas station when the utility vehicle he was driving started “cutting out.” He hit the gas, and the vehicle started sliding on snow and ice. He hit a dry patch, and the vehicle flipped over. However, two witnesses testified that before the accident they observed the worker performing “fish-tails” and skidding. The WCJ denied benefits. Relying on the testimony of the two witnesses, the WCJ found the worker’s injury occurred while he was attempting to fish-tail the vehicle he was driving. In affirming, the board determined the worker was not acting in furtherance of the employer’s business as he was attempting to fish-tail the vehicle in an overflow parking lot, allegedly on his way back from picking up lunch.

Also, the worker’s injury was not caused by a condition of the premises. Rather, the injury was due to the worker’s horseplay. Therefore, the worker failed to establish an injury occurred in the course and scope of his employment.

Harassment by Co-worker’s Spouse Triggers Compensable Stress Disorder

Mosley v. Hannaford Brothers Co., No. 517175 (N.Y. App. Div. 07/03/14)

Ruling: The New York Supreme Court, Appellate Division held that a manager was entitled to benefits for the exacerbation of his post-traumatic stress disorder.

What it means: In New York, an award of workers’ compensation is appropriate if there is any nexus between the motivation for the assault and the employment.

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Summary: An assistant store manager for Hannaford Brothers made a telephone call to a coworker at her home to discuss a work-related matter. The coworker’s husband became convinced that the manager and the coworker were engaged in a romantic relationship. The husband took threatening and harassing conduct against the manager, culminating in an unsuccessful murder-for-hire plot against him. Also, the coworker’s husband contacted the manager’s supervisor regarding the alleged affair, triggering an internal investigation by Hannaford and resulting in the manager requesting a transfer to another store. The manager’s preexisting post-traumatic stress disorder was exacerbated to the point that he was unable to continue to work. He filed a claim for benefits. The New York Supreme Court, Appellate Division held that he was entitled to benefits.

Hannaford argued that the manager’s claimed injury was not causally related to his employment. The court disagreed, finding a nexus between the threatening conduct that exacerbated his condition and his employment. The work-related phone call from the manager to his coworker’s home was the basis for the harassment at the manager’s place of employment, Hannaford’s internal investigation, and the manager’s request for a transfer that exacerbated his preexisting stress disorder.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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