NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
In the past few years there have been several unreported cases in which the Appellate Division has found a violation of the due process rights of respondent. McGory v. SLS Landscaping, A-4837-18T2 (App. Div. May 8, 2020) presents the first reported case in many years on the violation of a party’s due process rights, in this case the rights of the petitioner.
The facts of this case are very unusual. Petitioner fractured his foot jumping from a loft on the premises of respondent after retrieving a bucket. Petitioner, a young man, refused medical treatment offered by his supervisor, Nicole Caruso. He later went to the hospital and sent a text message to Caruso stating that he would use his personal health insurance because he felt that the accident was his own fault.
At the hospital petitioner was asked how he hurt his foot, and he said he fell off a roof cleaning the gutters at home. In his affidavit in support of his motion for benefits, petitioner explained that he misrepresented the truth partly because he did not understand workers’ compensation and partly because he feared negative consequences at work for his conduct in jumping rather than using the ladder.
According to his affidavit, when petitioner got home he discussed the accident with his parents, who explained how workers’ compensation worked and advised him to accurately report what happened. He then tried to contact the medical provider to correct their records. Respondent initially authorized care by a local surgeon, but later respondent denied the claim when it received medical records stating that petitioner injured himself at home.
At the first hearing on 4-17-19 on a motion for medical and temporary disability benefits, the Judge of Compensation asked whether respondent would be filing a fraud motion to dismiss the case. Defense counsel answered in the negative. The Judge advised the parties that petitioner had a right to remain silent in the event of any fraud allegations. The Judge of Compensation noted that petitioner’s counsel’s moving papers might constitute a prima facie case, and he advised respondent to produce its witnesses.
Respondent’s first witness was Sam Waddell, the owner of the company. He said that he was not on the premises at the time, but his manager notified him by phone that petitioner jumped off the loft instead of descending a ladder. The manager tried to persuade petitioner to see a doctor but petitioner declined. Ms. Caruso testified next that she heard the sound of the impact on the ground but did not actually see petitioner jump. She observed petitioner was in a great deal of pain and offered him medical care, which he declined. Caruso completed an accident form.
The matter was adjourned until May 29, 2019, after the judge noted that he did not understand why petitioner had jumped and considered whether this might constitute horseplay. The day before the May 29 hearing, respondent’s counsel filed a motion to dismiss for failure to sustain proofs. At the May 29 hearing, the judge reconsidered whether this case constituted fraud on the part of petitioner. The judge also questioned whether petitioner misrepresented that he was going to use his own personal medical insurance when his insurance was actually provided by Medicaid. The judge commented that it was not honest for petitioner to claim he was using his own insurance when it was taxpayer funded.
Without any testimony by petitioner, the Judge of Compensation noted that petitioner had misrepresented the facts to the medical providers in stating that he had been injured cleaning his gutters at home and misrepresented having his own health care insurance. The judge dismissed the claim petition without prejudice commenting that petitioner was a multiple liar. The Judge further said to counsel for petitioner: “If you can prove to me he’s honest, you can begin to present your case. If you cannot prove to me he’s honest, then under the circumstances the motion to restore is questionable.”
Petitioner did not file a motion to restore the case and instead authorized his attorney to file a Notice of Appeal with the Appellate Division. The judge scheduled the matter for another hearing on June 19, 2019. Counsel for petitioner argued that there was no basis for further proceedings since the case had been dismissed on May 29, 2019 and no motion to restore had been filed. Petitioner was in court and was ready nonetheless to testify. The judge would not permit any testimony by petitioner because no motion to restore had been filed.
On July 9, 2019 petitioner filed a Notice of Appeal of the May 29, 2019 dismissal without prejudice. On July 10, 2019 the Judge of Compensation conducted the final hearing. Petitioner’s counsel indicated that his client would not testify since the Notice of Appeal had already been filed. The Judge of Compensation then ruled on the case and the motion, dismissing both with prejudice and stating that petitioner’s conduct in jumping from the loft was not compensable as it constituted willful misconduct.
On appeal petitioner argued that his client had been denied his due process rights to testify and present evidence supporting his claim. The Appellate Division agreed, adding that there was no requirement that a petitioner prove he is honest before giving testimony.
The Court observed: “We have held that, in accordance with due process principles, the opportunity to be heard ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.” The Court added, “The judge also erred by making credibility determinations and findings of fact on the merits of petitioner’s claims based solely on the judge’s interpretation of petitioner’s affidavit, without hearing petitioner’s testimony and after only hearing Caruso’s and Waddell’s testimony.”
Finally, the Court criticized the judge for stating that the petitioner’s case did not rise to the level where consideration of the evidence was necessary.
As a side matter, the Court also observed in a footnote that the May 29, 2019 order dismissing the claim petition was an interlocutory order because there was still an opportunity to restore the claim petition, citing Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997).
The Appellate Division reversed both the order to dismiss without prejudice and the order to dismiss with prejudice. The Court remanded the case for further proceedings with a different judge.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
By: Jeannette Herrera and Pat McAleer
As our daily lives and businesses are disrupted by the current health crisis, questions have arisen as to whether COVID-19 illnesses must be reported to the California Occupational Safety and Health Administration (“Cal-OSHA”). Generally, an employer must notify Cal-OSHA if: 1) there is a confirmed case of COVID-19, 2) COVID-19 caused serious injury or illness or death, and 3) said injury, illness, or death occurred at work.
Effective January 1, 2020, AB 1805, codified in Labor Code section 6302, amended the definition of serious injury or illness to align with Federal OSHA regulations. Now, a serious injury or illness includes all inpatient hospitalizations, regardless of the length of stay, unless the hospitalization is for medical observation or diagnostic testing. The previous requirement that inpatient hospitalizations last for more than 24 hours was removed. In other words, COVID-19 would qualify as serious if an employee requires any hospitalization other than for observation and for testing if the exposure to and contraction of the illness is work-related.
While most people who contract COVID-19 experience mild symptoms, a minority of people experience more severe symptoms, including difficulty breathing and even death. Practically speaking, an employer would have difficulty determining the severity of an employee’s symptoms if no medical treatment is sought, let alone being able to confirm an employee has COVID-19. Rather, an employee would likely have to test positive for COVID-19 and have symptoms severe enough to warrant hospitalization. Many medical facilities are not even testing for COVID-19 until the individual is hospitalized. Thus, an employee’s work-related COVID-19 contraction will not likely constitute a serious illness unless the employee requires hospitalization.
Most importantly, like any workers’ compensation injury, there has to be a causal relationship between the employment and the contraction of COVID-19. If an employer believes an employee contracted a serious illness from COVID-19 at the workplace, it must be reported to Cal-OSHA and recorded on Cal-OSHA Form 300. If the employer has no reason to believe a serious illness from COVID-19 is related to work, there is no reporting or recording requirement.
Presuming the illness qualifies as serious, what happens if an employer is unsure whether an employee contracted COVID-19 at work? Title 8, California Code of Regulation (“CCR”) section 14300.5 mandates if an employer is unsure whether the employee contracted COVID-19 in the workplace, the employer must evaluate the employee’s work duties and environment to decide whether or not industrial events or exposures caused this illness. In other words, the employer must conduct a reasonable investigation to determine if the employer’s duties or environment exposed the employee to COVID-19. In low-risk industries, this will likely be extremely difficult to prove.
There are relevant exemptions to what constitutes a work-related injury. Regulation section 14300.5 specifies exemptions to include if an employee’s symptoms surfaced at work but results from a non-work-related event. Notably, this section also exempts the common cold or flu from constituting a work-related injury. However, the regulation delineates that contagious diseases such as tuberculosis, brucellosis, hepatitis A, or the plague do not fall within this exemption. By comparison, COVID-19 appears more analogous to a contagious disease based on the potential for severity of illness and current epidemic. Simply put, unlike the common cold and flu, COVID-19 is not likely to qualify as an exempted work-related illness.
In circumstances where an employer is required to report COVID-19 to Cal-OSHA, the employer could be fined if the illness resulted from a workplace hazard. Title 8, CCR section 334 provides if there is a “realistic possibility” of death or serious physical harm resulting from a workplace actual hazard, there is a rebuttable presumption of a serious violation. This Regulation defines an actual hazard to include an unsafe or unhealthful work environment resulting from the employer’s practices, means, and processes adopted. If Cal-OSHA determines the illness as caused by an employer’s failure to take reasonable steps to create a safe work environment in light of COVID-19, Cal-OSHA could issue a serious violation or accident-related serious citation. An employer can rebut this presumption by demonstrating it did not know or could not have reasonably known the presence of the violation. For example, if an employee can establish she contracted COVID-19 from a co-worker and the employer took reasonable safety precautions, no serious violation will issue. Employers should refer to OSHA’s Guidance on Preparing Workplaces for COVID-19 for recommended steps an employer can take to create a safe work environment as a way to insulate itself from serious safety violations.
In short, low-risk employers may not have to report to Cal-OSHA instances of COVID-19 contractions by employees. COVID-19 would have to cause an employee to suffer serious symptoms resulting in hospitalization or death but even then, there will be difficulty in establishing a causal relationship between the employee’s work duties and contraction of COVID-19.
On Friday, May 1, 2020, the Supreme Court of Iowa issued its decision in Anita Gumm v. Easter Seals, in which the Supreme Court agreed with the arguments that had been extensively briefed and then argued by attorneysLee Hook andTyler Smith on behalf of Easter Seals. The issue before the Court was:
Whether a workers’ compensation claimant who receives disability benefits for a traumatic injury can later recover disability benefits on a separate cumulative injury claim if the cumulative injury is based solely on aggravation of the earlier traumatic injury.
FACTUAL BACKGROUND
The Claimant, Anita Gumm, sustained a serious left ankle fracture on October 28, 2008, while she was working, and subsequently underwent an ORIF procedure. Ms. Gumm received weekly benefits, and she received the last weekly benefit check on May 21, 2010. Ms. Gumm sought medical treatment for her ankle in the weeks, months, and years following the date of the injury, but also following the date of her last benefit check. Pursuant to Iowa Code §85.26(2), Ms. Gumm had until May 21, 2013, to file a Review Re-opening Petition. Ms. Gumm filed multiple petitions on February 24, 2014, alleging cumulative injuries (with various manifestation dates) to her left ankle with sequela complaints to her back including an altered gait. The case went to hearing on March 12, 2015. The Deputy found that Ms. Gumm failed to prove by a preponderance of the evidence that she sustained a “distinct and discrete” new cumulative injury, pursuant toEllingson, and awarded Ms. Gumm no additional benefits as her claim for any additional disability based on a worsening of her ankle (and sequela symptoms) for which she had previously received weekly benefits was time-barred by the three-year statute of limitations. Ms. Gumm argued at Hearing that the “distinct and discrete” requirement as set forth inEllingson was not applicable but rather Floyd should control, which Ms. Gumm argued would allow her to recover benefits for the amount of the “increase in disability” to her ankle and sequela symptoms that could be attributed to her cumulative work duties.
LEGAL ISSUES AND ARGUMENTS
In reaching its decision, the Supreme Court addressed two prior Supreme Court of Iowa cases on point:Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999) and Floyd v. Quaker Oats, 646 N.W.2d 105 (Iowa 2002). At each stage of the case, Easter Seals arguedEllingson was dispositive, and Claimant argued Floyd was dispositive. In the end,the Supreme Court, affirmed Ellingson and re-stated the acute-then-cumulative-injury claim (for same body part) standard: that the cumulative injury must be a “distinct and discrete” disability, not disability as a result of an aggravation of a previous traumatic injury. The Court framed the issue in Gumm as “whether the claimant has suffered an aggravation of her previous compensable injury or a distinct and discrete cumulative injury.”
The Court found that the Commissioner’s application of the distinct and discrete standard inEllingson was appropriate and therefore the Commissioner’s finding that Ms. Gumm failed to meet her burden of proof for a cumulative injury claim was based on substantial evidence and thus should not be disturbed because, as the Court inGumm noted: “whether a claimant has suffered an aggravation of a previous traumatic injury or a distinct and discrete cumulative injury is a fact issue to be determined by the commissioner.”
Overall, Gumm further supports and establishes the “distinct and discrete” standard for cases that involved traumatic-then-cumulative-injury claims initially put forth inEllingson and also accepted in Excel Corp. v. Smithart. 654 N.W.2d 891, 898 (Iowa 2002) (“The separate and discrete requirement prevents a worker from transforming a chronic condition into multiple injuries, and obtaining the multiple separate recoveries feared by [employers]. Thus, employers are protected against paying for the prior disability over and over by the separate and discrete requirement.”). The Supreme Court ultimately held:
We therefore believe that the distinction drawn in Ellingson andSmithhart between cumulative aggravation of an existing compensable injury through the daily grind of working and a new, discrete injury remains valid in Iowa. In the former case, review-reopening is the recognized remedy if the claimant desires additional disability benefits. A claimant cannot avoid legislatively imposed restrictions by reclassifying an injury as a new injury unless the facts support that classification.
Regarding Floyd, the Court also articulated that Floyd is an exception toEllingson: “[W]here the claimant was precluded from recovering payments for the original trauma, the claimant would be permitted to recover payments on a cumulative-injury basis for subsequent aggravation of the trauma.” The Court further noted thatFloyd recognizes “that a claimant who is suffering the mounting, cumulative effects of a workplace trauma does not have to prove a distinct and discrete injury when the claimant never received an award for that trauma.”
CONCLUSION
In sum, this case is a win for employers and workers’ compensation carriers in Iowa as it affirmed theEllingson standard that a claimant must prove a – distinct and discrete – new cumulative injury was sustained, not an aggravation or increase in previous disability, when a claimant is alleging a cumulative injury to a body part that was previously injured as part of an acute or traumatic work injury.
On April 24, 2020, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order concerning the holding of non-jury court proceedings by video or audio conference so long as the Alabama Supreme Court Order remains in place restricting in person hearing. The Supreme Court Order, which was to expire April 30th, was extended to May 15th.
This Administrative Order included that judges shall have discretion to hold virtual court hearings in all non-jury proceedings which includes civil non-jury trials, such as workers’ compensation cases. The Order states that the hearing shall be held via Zoom software unless the specific judge authorizes the use of a different software. It is the responsibility of any party seeking to have a witness testify to make that witness available via virtual hearing. This can include the witness being available from their home or going to the attorney’s office. The Order also states that the parties are to adhere to the social distancing requirements. The Order gives any party the right to object to a virtual hearing at which time the court will review and make a determination. The Order also provides methods for exhibits to be introduced as well as authenticated.
MY TWO CENTS
Obviously, there are some benefits to moving forward and allowing cases to proceed to trial but there are some issues that may be prejudicial. With a virtual hearing there is no way for any party and/or the court to know if there is anyone else in the room with a witness. While this would obviously be unethical and sanctions could be issued, someone could easily be in the same room as the witness coaching and/or assisting with responses. Further, a an effective line of questioning could be stopped by ending the transmission and ineffective technology could be blamed.
Another aspect that is lost in a virtual trial would be the court’s ability to observe body language. While the hearing is virtual the ability to view someone via camera on a computer is a lot more obstructed than viewing someone live in a courtroom. In addition some software, including Zoom, only allows one person to talk at a time. This could create a problem if an individual was talking and opposing counsel or someone else involved in the hearing sought to make an objection. While we believe the objection would ultimately be heard it may be too late because the question was already asked and/or answered.
In regards to witness availability, this could create some difficulty because a witness may not have the capabilities to participate in a virtual hearing but at the same time may not be willing to go to the attorney’s office. The Order makes it the responsibility of the parties to have a witness available and this could create prejudice in a situation where a witness is needed to testify but that witness cannot be present via their own technology at home nor can they go to the attorney’s office to testify. Also, while the Order does indicate that it would assist with pro-se or non-represented parties in being able to secure and/or find somewhere to have the technology to proceed it could create issues for non-represented litigants in the event that they do not have the capabilities themselves to participate in a virtual hearing and are unwilling, or not comfortable, going to a public place or some other location to do so. The Order does give the parties the right to object to a virtual trial but it is at the Court’s discretion to grant the objection.
Finally, the Order specifically addresses how exhibits are to be handled. However, it seems that questioning and/or cross examining a witness using rebuttal evidence could be difficult in a situation where it was unexpected that you were need it and it was only admissible as rebuttal evidence. Presenting that evidence to the witness and questioning them on it could create difficulty since it would not likely have already been pre-admitted and/or presented to the court.
About the Author
The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
Employee has contracted COVID-19
KRS 342.0011(1) requires psychological, psychiatric, or stress-related claims to be a direct result of a "physical injury." In other words, Kentucky does not recognize mental-mental claims. There is no Kentucky case precedent holding that a disease condition constitutes a "physical injury." Therefore, contracting COVID-19, in and of itself, does not give rise to a psychological claim.
Kentucky courts have held in certain circumstances a “physically traumatic event” may give rise to a psychological claim. For example, the Court held a police officer who performed CPR on an individual he had just shot three times, which included skin contact with subject’s blood and body fluids, constituted a “physically traumatic event.”Richard E. Jacobs Group, Inc. v. White, 202 S.W.3d 24 (2006). A police officer who was physically assaulted by a knife wielding suspect suffered a “physically traumatic event.”Lexington-Fayette Urban County Government v. West, Ky., 52 S.W.3d 564 (2001).
Based on the foregoing, for a COVID-19 exposure or condition to give rise to a psychological claim, there must be an underlying “physical injury” (other than COVID-19), or a physically traumatic event. For example, intubating a patient, administering an IV or putting a patient on a respirator does not constitute a physical injury or a physically traumatic event, absent aggravating circumstances.
Employee is fearful of contracting COVID-19
Kentucky does not recognize mental-mental claims. For example, if an employee has an emotional reaction to job stress, absent a physical injury, there is no basis for a psychological claim. The fear of contracting COVID-19, in and of itself, would not give rise to a psychological claim.
Factual Analysis
Psychological claims associated with COVID-19 mandate a detailed, factual analysis of each and every claim. One key fact may change the outcome.
Jones Howard Law, PLLC will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.
H. Douglas Jones, Esq.
djones@joneshowardlaw.com
Mark W. Howard, Esq
mhoward@joneshowardlaw.com
Troy W. Skeens, Esq.
tskeens@joneshowardlaw.com
Margo J. Menefee, Esq.
mmenefee@joneshowardlaw.com
I had a recent discussion in relation to an upcoming COVID-19 webinar with former Supervising Judge of Compensation, Ray. A. Farrington, who sat in Hackensack, N.J. Judge Farrington raised an important question about what employers can do when employees ignore safety rules concerning COVID-19 in respect to both workers’ compensation and employment law.
Suppose an employer has a strict requirement that an employee must wear a mask at work to protect the employee and others. Suppose further that one employee repeatedly ignores the rule and eventually becomes sick with coronavirus and then brings a workers’ compensation claim. Is there a valid defense to the claim based on the employee’s willful failure wear his mask?
The answer is yes, if the employer complied with the terms of N.J.S.A. 34:15-7. That provision states that the willful failure to make use of a reasonable and proper personal protective device furnished by the employer is grounds for denial of the workers’ compensation claim if the employer has clearly made this a requirement of the employment and has uniformly enforced this rule. For this defense to work, the employer has to properly document that despite repeated warnings, the employee willfully failed to properly and effectively utilize the protective device, and that conduct led to the work illness, in this case the virus.
A second question in this scenario is whether the employer can terminate someone who fails to utilize required protective devices. As Judge Farrington posed the question: “Can the employer have a zero tolerance policy?” For the answer we turn to Ralph Smith, Esq., Co-Chair of Capehart’s labor law department. Ralph responded, “If you are a non-union employer, firing under a zero tolerance policy for a lack of mask use would no doubt be allowed because failing to follow such a directive would be insubordination, and insubordination is subject to discipline, including possible discharge.” He added, “Progressive discipline would be unnecessary unless the employer has a policy where progression is required, though most employers carve out from progressive discipline serious workplace infractions.” Ralph added that given the risks of COVID 19, not wearing a mask could have serious health consequences for others and should be considered a serious infraction.
The answer is more nuanced if the employer is in a unionized setting. Ralph explained, “I would think that discipline would be an issue which would have to be addressed with the union, it being considered a term and condition of employment, but if you already have a CBA (Collective Bargaining Agreement) with a progressive discipline policy, you would need to follow that and likely would not be able to go directly to termination.” Ralph suggested that in a union setting it would be wise to discuss the employer’s plans involving mask usage with the union. He added, “Unions have the same safety incentive as employers do, so I suspect the employer would not get very much pushback on requiring mask usage and disciplining for non-use, short of termination for a first violation.”
Finally, Ralph made an important point about reasonable accommodations. “In both union and non-union contexts, an employer might have to accommodate someone who refuses to wear a mask, or is unable to do so, because of health reasons. This is an exception even under Governor Murphy’s Executive Orders.” He added that the employer may need to address whatever the underlying disability is which precludes mask use just as the employer would for any disability. The question becomes whether the employer can make adjustments that accommodate the health problem and still maintains a safe working environment.
Thanks to Judge Farrington and Ralph Smith, Esq. for their contributions to this blog.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
On April 30, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order which extended all previously issued administrative orders related to COVID-19. As a result, the following rules will remain in place through May 15, 2020:
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
For case summaries from decisions at the Minnesota Workers' Compensation Court of Appeals current through March 2020, please click the link below.
https://cwk-law.com/wcca-case-summaries-through-march-2020/
The Office of Administrative Hearings and Minnesota Department of Labor and Industry are continuing to update the method of handling appearances for the foreseeable future due to COVID-19. CWK will monitor and keep you updated as important announcements are made. Below is a summary of how these appearances are being handled for the time being.
At the Office of Administrative Hearings, all in-person Hearings are being left to the parties’ and judge’s discretion. However, judges are typically only allowing in-person Hearings if the case involves a “priority situation.” Each will be handled on a case-by-case basis with some Hearings will be held by telephone or being continued. All parties are still required to abide by timelines for exhibits, including e-Filing at least one day in advance. Larger Hearing rooms are being used to accommodate social distancing guidelines for Hearings that have been deemed a “priority situation.”
All other appearances at OAH will be held by telephone only for the foreseeable future. This includes Mediations, Asbestos Conferences, Settlement Conferences, Minn. Stat. 176.239 Conferences, Minn. Stat. 176.106 Conferences, Pretrial Conferences, Motion Hearings, and Attorney Fee Hearings.
At this time, all appearances at the Minnesota Department of Labor and Industry, including Medical Conferences, Rehabilitation Conferences, and Mediations are also being held by phone only. The parties are still expected to abide by deadlines for submitting exhibits.
Different guidelines have been implemented by the Minnesota Judicial Branch for district court proceedings. Please feel free to contact a CWK attorney with any questions regarding any court proceedings.
On Tuesday, April 7, 2020, the Minnesota Legislature passed a bill, which now provides certain employees the benefit of a presumed occupational disease under Minnesota workers’ compensation if they contract COVID-19. Specifically, employees working in first responder or healthcare occupations will be presumed eligible for workers’ compensation benefits if they either test positive for COVID-19 or are diagnosed by a licensed physician, physician’s assistance, or APRN without a test. In the situations where a test has not been done, a copy of the written documentation of the diagnosis shall be provided to the Employer and Insurer. The following occupations fall into this presumption:
In summary, if an employee shows that he or she works within one of these occupations and either tests positive for or is diagnosed with COVID-19, the burden of proof will shift to the employer and insurer to rebut the presumption. Employers and insurers will still be able to show that the employment was not a direct cause of the disease, however it will be much more difficult to prevail on a denial of liability when one of these types of employees contract COVID-19.
To note, the date of injury in these situations shall be the date the employee is no longer able to work due to a diagnosis of COVID-19 or due to the symptoms later diagnosed as COVID-19, whichever occurs first.
For all other employees not included in the list above, claims can still be pursued under an occupational disease or personal injury theory. Under these types of claims, the employees will not entitled to the presumption described above, and will be held to the burden of proof.
This law goes into effect immediately.
Please feel free to contact a CWK attorney with any questions on this new bill, and be sure to note any ongoing claims involving an employee in one of these types of occupations.
https://www.house.leg.state.mn.us/dflpdf/a7308a83-b58d-4578-93b1-1ac3f8475906.pdf