Court Case Update, Multistate - January 2020
By NCCI Insights January 13, 2020

This Court Case Update, Multistate provides a look at some of the workers compensation cases decided by the courts at the end of 2019.

Alaska—Attorney Fees

On December 6, 2019, in Rusch v. Southeast Alaska Regional Health Consortium, the Alaska Supreme Court addressed for the first time how claimant attorney fees are determined in a workers compensation case in which the parties reach settlement but dispute whether the claimant prevailed on certain claims and issues.

The court held that, for purposes of determining claimant attorney fee awards (which are awarded to successful claimants per Alaska statute 23.30.145), when the parties dispute whether a claimant was successful on certain issues in a settlement, the employer carries the burden of demonstrating that a claim or issue lacked merit and must explain why it nonetheless decided to settle the case and grant the requested relief.

The court also found that the Alaska Workers’ Compensation Board (the Board) committed an error in considering an attorney’s experience in Alaska workers compensation cases as the only factor to determine the reasonableness of the attorney’s hourly rate. The court further concluded that the Board violated claimants’ due process by reducing the amount of attorney fees without providing adequate notice about the information that needed to be presented and by not allowing the claimants to present evidence in support of the reasonableness of the requested fees.

The case was remanded to the Board for further proceedings.

Idaho—Exception to Exclusive Remedy

On December 20, 2019, on reconsideration, the Idaho Supreme Court issued a substitute opinion in the case of Gomez v. Crookham Co. and ruled that a separate civil lawsuit filed by the estate of an employee who was fatally injured on the job, can proceed against the employer who paid workers compensation death benefits.

The court found that, pursuant to Idaho Code 72-209(3), an employer may be subject to a separate civil lawsuit if the employee/claimant can prove the employer was aware of, but consciously ignored, a danger that would result in an injury, so as to constitute a “willful or unprovoked physical aggression” against the employee under an exception to exclusive remedy.

Nevada—Workers Compensation for Traveling Employees

On December 12, 2019, in Buma v. Providence Corp. Development, the Nevada Supreme Court addressed for the first time how the statutory requirement that an “injury arose out of and in the course of employment,” applies to employees whose employment entails travel away from the workplace. In this case, the family of a traveling employee was denied workers compensation death benefits after he died on a business trip as a result of an all-terrain vehicle accident that occurred on the property of a friend with whom the employee regularly stayed and worked with while on business trips.

The court relied on Nevada statute 616B.612(3) and Larson’s Workers Compensation Law (2019) to develop the factors that determine whether a traveling employee is in the course of employment during the business trips or whether there is a distinct departure on a personal errand. The court concluded that the inquiry should focus on whether the employee was “(a) tending reasonably to the needs of personal comfort or encountering hazards necessarily incidental to the travel or work; or, alternatively, (b) was pursuing strictly personal amusement matters.” The case was remanded to the district court to conduct a fact-finding hearing guided by the supreme court’s application of the traveling employee rule.

Rhode Island—Firefighters Cancer Presumptions

On December 18, 2019, in Lang v. Municipal Employees’ Retirement System, the Supreme Court of Rhode Island quashed a decision from the Workers Compensation Court finding that Rhode Island statute 45-19.1-1 creates a conclusive presumption that cancer in firefighters arises out of and in the course of their employment as firefighters so as to award accidental disability benefits for occupational cancer.

The court found, as a threshold matter, that there is no express language in the statute granting a conclusive or rebuttable presumption that any diagnosis of cancer among firefighters is an occupational cancer. The court further concluded that, based on legislative intent, occupational cancer must be proven before a firefighter is entitled to receive occupational cancer disability benefits.

For more information on other cases monitored by NCCI’s Legal Division, visit previous Court Case Updates and Court Case Insights, under the Legal section of INSIGHTS on

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