Bill

SB 865

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SB 865 - This act modifies provisions relating to workers' compensation. The term "accident" is modified to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor. The term "injury" is modified by repealing the "prevailing factor" standard. Moreover, an injury is deemed to have arisen out of and in the course of employment only if it meets the following: • It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and • It can be seen to have followed as a natural incident of the work; and • It can be fairly traced to the employment as a proximate cause; and • It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. Similarly, the act modifies provisions governing the compensability of occupational diseases by repealing the "prevailing factor" standard. Specifically, an occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable under workers' compensation law. An occupational disease is not compensable merely because work was a triggering or precipitating factor. Additionally, an occupational disease due to repetitive motion is compensable if the occupational exposure was a substantial factor in causing both the resulting medical condition and disability. If the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with the immediate prior employer was a substantial contributing factor in causing the injury, the prior employer shall be liable for such occupational disease. The act provides that where an employee's participation in a recreational activity or program is the proximate cause, rather than prevailing cause of the injury, benefits or compensation otherwise payable for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. The act repeals various provisions that abrogated past court decisions with respect to the interpretation of the following terms and phrases: "accident", "occupational disease", "arising out of", "in the course of the employment", and "owner". The interpretation of such terms prior to August 28, 2005, is reinstated and any case law that is inconsistent with such interpretations is abrogated. Additionally, the extension of the premises doctrine as it existed prior to August 28, 2005, is reinstated for liability for accidents that occur on property not owned or controlled by the employer even if the accident occurs on customary, approved, permitted, usual or accepted routes used by the employee to get to and from their place of employment. The act additionally creates a new provision establishing a right to final hearing following a determination by a physician that an employee has reached maximum medical improvement. Such hearing may only be requested one year after the determination of maximum medical improvement has been made. Either the employee or the employer may request the hearing and the hearing shall be set within six months after when the request is made and not to be continued, cancelled, or reset without consent of both the employee and the employer. SCOTT SVAGERA

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