State Jurisdiction WALSH Revisited
The revisited test of jurisdiction WALSH consists of five tests. I was just reading a news flash on a Workers Comp decision by the Massachusetts Supreme Court.
If I am reading it properly, an employee who was injured 23 years ago is now able to claim benefits with a new average weekly wage and not based on Mass. Workers Comp law.
I thought I would revisit the WALSH test of state jurisdiction. It is what the Mass. Judges should have used in their decision. The test has been around for many years. I have seen a Workers Comp judge actually draw up the test on a multi-jurisdictional claim in Oklahoma a few years ago. The old article on WALSH is here.
The weight of each part of the jurisdiction is higher with Worked. Each term carries less weight. Hired has the least weight when considering jurisdiction. There was one industry that I consult often which makes jurisdiction so difficult – trucking/transportation.
Let us look at how the confusion is lessened with WALSH:
- Worked – unless the trucker short-hauls, then there are many states where the drive would work almost every single day
- Accident – this one is a little more clear
- Lived – this would be straightforward
- Salaried – also straightforward
- Hired- not as clear as the driver may have been hired at a terminal or HQ.
- Choice – wherever the injured employee decides to file a claim using WALSH as a guide.
I would say the Worked part would be wherever the terminal he/she works out of is located. There seems to be another term that is very prevalent and that is Choice. I have seen states lately rule in favor of wherever the driver decides to file their claim.
The Choice scenario can almost be applied to any occupation where the employee does not have all of Walsh in the same state. Would an employee research the best benefits available and file a claim in that state hoping to hit the proverbial jackpot on benefits? Would an employee try to file a claim in a state that has a max of $400 or $800?
We have that very file in our office. I was asked to examine the file as a possible expert witness. The employee has a decent attorney in the $800 a week state. As you may know, truckers almost always max out the benefits as they are paid well.
Applying the Walsh Test:
- Worked – terminal – NC
- Accident – SC
- Lived – GA
- Salaried – FL
- Hired – TN
- Chose – NY???
This is going to be a long evening. Try the test on some of your multi-jurisdictional files. It may not be 100% accurate, but at least it is a starting point.
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