The bill may be a victim of the large to-do list facing the country. The same issues that are focusing lawmakers' attention at the national level -- notably health-care reform, housing, and the economy -- also are occupying state legislators' time. It is difficult for elected officials to spend valuable session time tinkering with workers' compensation laws that are for the most part actually working when their constituents are homeless and jobless.
However, while major reforms may be few this year, courts and state officials continue to expand or retract workers' compensation laws, rules, and regulations through narrow rulings and targeted bills. A sampling of some recent activity that may portend larger issues in the future:
New Jersey
In a victory for coffee drinkers everywhere, the New Jersey Appellate Court Division ruled this month that an off-site employee who was injured while driving to a deli for coffee is eligible for full benefits. In Cooper v. Barnickel Enterprises, Inc., the court ruled that "accidents occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are minor deviations from employment which permit full recovery of workers' compensation benefits." This liberal interpretation of the "coming-and-going" rule is being referred to (no surprise) as the Starkbucks' Ruling.
Oregon
An Oregon law passed last summer and effective Jan. 1 requires all counties to provide workers' compensation coverage for qualified search and rescue volunteers. HB 3021 provides both workers' compensation benefits and protection under the Oregon Tort Claims Act to qualified emergency service workers and search and rescue volunteers. It also clarifies statutory provisions relating to emergency health care providers and clarifies that an emergency does not qualify as a single accident or occurrence for purposes of the Oregon Tort Claims Act.
Also in Oregon, the state Supreme Court has upheld a judge's ruling that a workers' compensation carrier must pay for gastric bypass surgery for an injured worker. The claimant needed knee replacement surgery for a work-related injury. It was determined that the gastric bypass was required to ensure the success of the knee surgery for the 300-pound plus claimant. Rulings in favor of weight-reduction surgery for obese claimants have become increasingly common in recent years. One of the first and most famous involved Adam Childers, a 6-foot, 340-pound cook in a Schererville, Ind., pizza restaurant. After sustaining a back injury in 2007, Childers sought surgical relief. The doctor said the surgery would be unsuccessful unless he lost weight, and prescribed lap-band surgery. Childers wanted his employer to pay for the lap-band operation as part of his workers' compensation claim. The pizza chain balked. In August 2009, the Indiana Court of Appeals, ruling in PS2 LLC, D/B/A Boston's Gourmet Pizza v. Childers, upheld a workers' compensation board finding that the pizza chain must pay for the weight-reduction surgery
New York
In New York, Assembly Bill 1867 and Senate Bill 2247, companion bills introduced this month, are either giant steps forward for workers or calamitous setbacks for farmers. The labor legislation dictates overtime pay rights for farmworkers, but continues existing exemptions for small farms from workers' compensation and unemployment insurance tax liabilities. The legislation has gone through several metamorphoses over the past several months and neither side is completely happy, leading most to believe that the final compromise bill has a chance of passing.
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