State News

The burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,300.00 effective July 1, 2023. This benefit applies upon the death of an employee, resulting through personal injuries as defined in NEB. REV. STAT. § 48-151

Please select this link to view the latest news from the Nebraska Workers’ Compensation Court (https://www.newcc.gov/home/court-news).

https://cpwlaw.com/news-releases-coming-burial-benefit-to-increase/

Cumulative Trauma - Sufficiency of Evidence 

Lexington Fayette Urban County Gov’t v. Gosper, 2021-SC-0386-WC (not final)

Claimant worked exclusively as firefighter and EMT for employer for 18 years. He presented to his treating physician, Dr. Balthrop, in December of 2017 with unbearable bilateral knee pain which his physician stated was work-related. He underwent two total knee replacement surgeries paid through workers’ compensation. Claimant had treated for knee problems for years and was diagnosed with osteoarthritis in 2012. He had a prior right knee work injury in 2007 that led to a meniscectomy. Dr. Balthrop testified that Claimant’s physically exacting work demands combined with his varus deformity accelerated the gradual deterioration of his knees and his occupation worsened his arthritis. The employer’s IME expert, Dr. Prince acknowledged that sustained, repetitive, and strenuous work is a risk factor for arthritis and would have accelerated Claimant’s degenerative changes. Dr. Prince, attributed 75% of his left knee impairment and 50% of his right knee impairment to non-occupational factors, including his varus deformity and being overweight. He testified that without the work-related component, Claimant would likely not have needed the knee replacement surgery at the age he had it. Claimant’s IME expert, Dr. Burke, noted that while Claimant experienced intermittent knee pain, he continued to work, however by the end of 2017 his knees deteriorated to where he couldn’t function with regular duty activities. Dr. Burke diagnosed progressive development of bilateral osteoarthritis contributed significantly by the nature and duration of his work. The employer also had a report prepared by Dr. Lyon, who attributed 50% of Claimant’s right knee condition to work and 0% of the left knee condition. Dr. Lyon emphasized Claimant’s history of knee pain and bowleggedness.

The ALJ found that the nature and duration of Claimant’s work aggravated his degenerative condition into active physical impairment sooner than would have been, awarding PPD benefits with the 3x multiplier and medical benefits. The employer appealed, arguing that the Claimant did not meet his burden of proving a work-related injury, noting injury does not include the effects of the natural aging process. The Supreme Court of Kentucky held that substantial evidence existed to support the ALJ’s determination, finding that three doctors, including one of the employer’s IME experts, acknowledged that the Claimant’s job duties significantly contributed to the acceleration or aggravation of his degenerative knee condition. 

The West Virginia Workers' Compensation Board of Review has implemented a new procedure for a claimant to file a protest to a claim administrator's order that does not include a Jurisdictional Claim Number. Claim administrators who are not following claim reporting procedures will be tracked by the Offices of the Insurance Commissioner. 

The Board of Review has changed the process for submitting a protest to a claim administrator's order that does not include the JCN. Claimants and their attorneys will no longer be required to call the claim administrator or the OIC's Claims Services in an effort to track down a JCN. Since a protest cannot be submitted on the Board of Review's portal without a JCN, please follow this process if you are submitting a protest to a claim administrator's order that does not include the JCN:

· Fax or mail the protest to the Board of Review (PO Box 2628, Charleston, WV  25329; 304-558-1322)

· A Temporary JCN will be assigned and the protest will be acknowledged.

· The Board will issue an order requiring the claim administrator to provide the JCN to the Board and the parties, in writing, within 15 calendar days from the date of the Board's order.  A copy of the Board's order will be provided to the OIC in order to track claim administrators who are failing to follow reporting procedures.

The Board of Review can be contacted by calling Beth Suter at 304-414-1027.

Written by: Logan Shipman

The N.C. Court of Appeals recently provided new guidance on calculating the average weekly wage (AWW) in a case involving a summer job for a full time graduate student. Although the case also addressed the admissibility of testimony under Rule of Evidence 702, the discussion below focuses primarily on the Court’s average weekly wage analysis.

In Gilliam, the decedent was an employee of a temporary employment agency and assigned to work at Bimbo Bakeries in a general utility position. At the time, the decedent was enrolled in graduate school at Mississippi College and began working for Defendant-Employer earlier that summer. Although his employment was at-will with no specified end date, the evidence demonstrated the decedent was set to end his employment with Defendant-Employer in August 2018, to return to school at Mississippi College.

On July 29, 2018, Plaintiff was working on the lid line in the bakery when he collapsed on the floor and was found unresponsive. EMS was called and he was pronounced dead at the hospital. An autopsy revealed the cause of death was probably dysrhythmia due to cardiomegaly. It showed an enlarged heart with increased concentric left ventricle thickness and noted that an enlarged heart impairs proper coordinated electrical conduction and predisposes the person to a fatal arrythmia. The autopsy further demonstrated increased fibrosis. Decedent’s parents filed a claim, alleging that Decedent collapsed and died while working in high heat inside the bakery. Defendants denied Plaintiffs’ claim on the basis that Decedent died from natural causes.

As noted above, the primary issue in this case was the proper method of calculating Plaintiff’s average weekly wage given his short term of employment. Plaintiffs contended the decedent’s average weekly wage should be calculated pursuant to the third method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5), which states, “where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained.” Defendants, however, contended that the third method overestimated Plaintiff’s wages he would have earned but for the accident, since he was slated to end his employment shortly after the accident to return to graduate school. Defendants argued that the decedent’s average weekly wage should instead be calculated to the fifth method, which states, “but where for exceptional reasons the foregoing [methods of calculating average weekly wages] would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”

After a hearing, the Deputy Commissioner concluded Decedent’s death was compensable and ordered Defendants to pay death benefits pursuant to the third statutory method of calculating average weekly wage. Defendants appealed to the Full Commission. The Full Commission affirmed the compensability of Decedent’s death but recalculated the average weekly wage pursuant to the fifth statutory method. The Full Commission found that the evidence demonstrated that Decedent would have ended his employment with Defendant-Employer and returned to school in August 2018. Medical records indicated Decedent was currently in grad school; a Facebook post from July 18, 2018, stated he was “so glad school starts in August so [he didn’t] have much longer in the bakery;” his sister testified he was in school at the time of his death; and his work history in the previous few years reflected he worked during the summer before returning to school each August. The Court concluded this evidence was sufficient to support its finding that Decedent would have ended his employment in August 2018. It held therefore that because he began working for Defendant-Employer on May 17, 2018, and would have ceased working in August 2018, within a few weeks of his death, Decedent’s earnings from May 17, 2018, to August 2018 would have constituted his total earnings in 2018. Thus, calculating his average weekly wage using the third method would overestimate his wages he would have earned but for the compensable accident. The Full Commission, using the fifth statutory method, calculated Plaintiff’s average weekly wage by adding his earned wages up to the date of the compensable accident and dividing that sum by fifty-two weeks. Defendants appealed the Full Commission’s Opinion and Award, and Plaintiffs cross-appealed.

The Court of Appeals ultimately found the Full Commission’s calculation did not fully capture the wages he would have earned but for the accident because it did not account for the remaining few weeks he would have worked before returning to school. The Court remanded the case to find the date he would have ended his employment and to recalculate the average weekly wage using that sum and dividing it by fifty-two weeks.  The appeal was dismissed in part and vacated and remanded with instructions in part.

Gilliam provides support for a lower calculation of an injured employee’s average weekly wage in cases in which the injured employee had worked less than fifty-two weeks as of the date of injury, but where the evidence demonstrates that the employee was going to terminate employment with the defendant-employer at a specific date shortly after the accident. As in Gilliam, this new guidance is particularly applicable to cases involving seasonal employment.

Written by: Tracey Jones

Amber May appointed as the NCIC’s Chief Operating Office Effective June 1, 2023

The Industrial Commission announced that Amber May will serve as its Chief Operating Officer effective June 1, 2023. May currently serves as the Commission’s General Counsel, having returned to the Commission in March of 2022 after eight years as Rules Review Commission Counsel at the North Carolina Office of Administrative Hearings. Prior to joining the Rules Review Commission, May served as the Law Clerk to former Commission Chair Pamela T. Young. Before that, May worked as a Staff Attorney for Legal Aid of North Carolina, where she represented clients in a wide variety of civil matters and gained substantial litigation experience. May earned her law degree from North Carolina Central University School of Law and her Bachelor’s Degree in Business Administration from Meredith College.

Pam Young retiring from the NCIC Effective June 1, 2023

The Industrial Commission’s Chief Operating Officer, Pamela T. Young, is retiring effective June 1, 2023. Young’s service to the State of North Carolina includes nearly 20 years at the Industrial Commission where she served as a Deputy Commissioner from 1996-2002; a Commissioner from 2003-2014, during which time she was designated by the Governor as Vice-Chair and then Chair of the Commission; and most recently as Chief Operating Officer since 2020.

William B. Wallace appointed to serve as a Deputy Commissioner Effective March 13, 2023

William B. Wallace was appointed to serve as a Deputy Commissioner beginning March 13, 2023. Wallace began practicing workers’ compensation law in 1998, and he has represented both plaintiffs and defendants in workers’ compensation cases. He is a North Carolina State Bar Board Certified Specialist in workers’ compensation law and a North Carolina Dispute Resolution Commission certified mediator. Wallace is a former Chair of the North Carolina Bar Association’s Workers’ Compensation Section. Wallace earned his undergraduate degree from the University of North Carolina at Chapel Hill and his J.D. from the University of Richmond T.C. Williams School of Law. Wallace will be assigned to the Commission’s Charlotte regional office.

Elias W. Admassu appointed to serve as a Deputy Commissioner Effective February 27, 2023

Elias W. Admassu was appointed to serve as a Deputy Commissioner in the Raleigh office beginning February 27, 2023. Admassu brings considerable workers’ compensation experience to the Commission, having litigated claims before the Industrial Commission from 2009 through 2020 while representing employers and insurers. He also has significant employment law and governmental experience, having served in important advisory roles in the Chief Counsel’s Office of the North Carolina Division of Employment Security and as counsel to the Human Resources and General Counsel’s Office of the North Carolina Department of Justice over the past few years. Most recently, Admassu was a Special Deputy Attorney General responsible for representing the North Carolina Department of Health and Human Services in complex employment, labor, disability, and constitutional law litigation in federal and state courts and before administrative agencies. Admassu earned his undergraduate degree from Howard University and his J.D. from the University of North Carolina School of Law.

Phillip A. Baddour, III reappointed to the Full Commission

Governor Roy Cooper has reappointed Philip A. Baddour, III to serve a second six-year term as a Commissioner on the North Carolina Industrial Commission beginning May 1, 2023, subject to confirmation by the North Carolina General Assembly.

In March of 2017, Baddour was appointed by Governor Cooper to serve his first term as a Commissioner, and he was confirmed by the General Assembly in June of 2017. In February of 2019, Governor Cooper designated Baddour as the Chair of the Industrial Commission. Baddour previously served as a Deputy Commissioner at the Industrial Commission for 17 years. Baddour received his B.A. degree from the University of North Carolina at Chapel Hill in 1992 and earned his law degree from Campbell University in 1996.

New Procedure: Report of Mediator Fee Invoices to be emailed when the Mediator is appointed.

On Monday, February 20, 2023, the Industrial Commission began emailing Report of Mediator fee invoices at the time the mediator is appointed. The Report of Mediator invoice will be sent to defense counsel by email shortly after the Appointment of Mediator Order is emailed.

This new procedure, which was created in response to stakeholder feedback, will give employers and carriers additional time to process and pay Report of Mediator fees. Upon receipt of the Report of Mediator invoice, the $200 fee can be paid online via credit card (MasterCard or Visa) or e-Check. A link for online payment will be provided in the email. The $200 fee also may be paid by paper check mailed to the Industrial Commission.

While the Industrial Commission strongly encourages early payment of Report of Mediator fees to avoid past due invoices, this new procedure does not change the Report of Mediator fee due date (i.e., payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier). With the ability to pay Report of Mediator fees early, however, employers and carriers can avoid the risk of late payment (which may subject them to statutory penalties and interest) and can more efficiently manage and bring closure to their case files.

Written by: Lindsay Underwood

One of the hot topics in Workers’ Compensation over the past few years has been entitlement to extended benefits and what standard the courts would apply to determine the same. Most recently, the Court of Appeals issued a decision in one of the cases currently pending – Sturdivant v. NC Department of Public Safety. Interestingly, the opinion has since been withdrawn, and it is unclear how the Court will move forward at this juncture. Even so, the opinion merits discussion.

As a reminder, the key question presented by the extended benefits cases is what analysis the courts would use to determine entitlement to benefits beyond the 500 weeks. The plaintiff’s bar argued that the standard remains the same in pre-500 week and post-500 week cases. Defendants argued that benefits beyond the 500-week cap have an increased standard, such that a claimant has the burden to show a total loss of wage-earning capacity.

In Sturdivant, the claimant sustained a compensable injury to the back in 2011. Claimant was a high school graduate. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. Four of the claimant’s physicians testified he could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all. However, the vocational expert did not contact any potential employers, and only looked for jobs in Anson County. As a result, Deputy Commissioner Erin Taylor afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap on benefits.

Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision finding claimant failed to meet his burden to establish a total loss of wage-earning capacity. Plaintiff appealed to the Court of Appeals. The Court of Appeals agreed with the lower courts and affirmed the denial of extended benefits, but specifically noted that  the standard for total loss of wage-earning capacity and total disability are the same. Though they found that claimant still has the burden of proof to show they sustained the loss, the standard for disability does not change when a claimant applies for benefits beyond the 500 week cap. The Court further noted claimant could receive extended benefits even if not medically restricted from all work, if he showed there were no jobs available to him. Since the claimant did not meet his burden, he was not entitled to extended benefits in this case.

Though a victory for the Defendants in this specific case, the conclusion that there is no higher standard for disability once the claimant applies for extended benefits creates significant additional exposure for Defendants. However, as noted above, the Court has now withdrawn its opinion. It is unclear how they will proceed, or what this means for extended benefit cases moving forward. It should be noted that Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital, is still pending before the Court of Appeals and a decision has not been issued in that case.

As we are somewhat back to square one when it comes to guidance in light of the withdrawal, our recommendations for handling remain the same: retain credible experts (both medical and vocational), investigate claimant’s job search, hobbies, and non-work related activities and participation, obtain a detailed understanding of claimant’s job history and educational background, and make sure your vocational expert meets with claimant to identify possible jobs and explore work history.

Passing of the Torch

Our founding partners, Mark Hamberger and Ronald Weiss, have served on the firm’s Governing Committee, and as Managing Partners in the Buffalo and Rochester offices respectively, since the founding of the firm in 1991. Effective January 1, 2023, Mark and Ron have decided that the time has come to pass the management responsibilities to the next generation. 

Accordingly, the firm created a new Governing Committee, and elected F. Daniel Bowers, Renée Heitger, and Joseph DeCoursey to serve on that committee, effective January 1, 2023 to manage the firm. Dan and Joe will serve as Managing Partners in Buffalo and Rochester respectively.  

Under Mark and Ron’s 31 years of leadership, the firm has grown to become the largest law firm dedicated solely to Workers’ Compensation defense in New York. Mark and Ron will remain with the Firm as Special Counsel, where they will play integral roles in the firm's continued success.

 H&W Saves Client Nearly $60,000 With Fraud Finding and Permanent Bar on Indemnity

Our associate, Victoria Hahn, obtained a WCL §114-a (fraud) finding and secured a permanent disqualification of the claimant's indemnity benefits for our client in a particularly tricky claim that was decided a few weeks ago. The claimant in this case had been out of work since the date of accident in March 2020. Our client's investigator was able to get some limited evidence of the claimant's work activity: a few photos and a 10 second video from an informant showing the claimant working as a carpenter at a job site. During testimony, the claimant alleged that he was just "helping a friend." Unfortunately, the informant was murdered before trial in an unrelated incident, leaving Tori without much of a case. 
 
Undeterred, she subpoenaed the claimant's bank records, which showed large deposits into a business account in the claimant's name, with the claimant listed as the sole signer and authorized user. These records were critical as they proved that the claimant was engaged in substantial work activity while collecting workers' compensation benefits. The Law Judge felt that the video surveillance and photographs were insufficient on their own to establish a fraud finding. However, the Judge found that the bank records completely discredited the claimant's testimony and that the only logical conclusion regarding the deposits noted in the bank records were that they were for services performed by the claimant on behalf of his business. 
 
Given the classification with a permanent partial disability and a 33% loss of wage earning capacity Tori's efforts saved our client nearly $60,000 in workers' compensation payments. For any questions about this case, please contact Tori and if you have a fraud case you would like to us to review, please contact us. 

Legal Update by Attorney Alison Stewart

Once the Iowa Workers’ Compensation Commissioner makes an arbitration award, instead of receiving permanent disability or death benefits on a weekly basis, the Claimant can opt to receive payment in a lump sum. In some cases, both parties elect this option as a way to resolve a particular claim. The legislative changes in 2017 impacted these provisions in that commutations of any type could only be obtained with the consent of both parties and upon approval by the Commissioner. In cases where both parties are in agreement that a commutation is appropriate, these new changes will remove the barriers to this type of resolution that had previously been in place. Prior to the rule change, all commutations required (1) the Claimant to establish financial need to receive an award in a lump sum, and (2) a prescribed period of remaining benefits (10 consecutive, un-accrued weeks of indemnity benefits). Previously, in order to make use of the Full Commutation option for resolution, the parties were required to establish that a minimum of ten un-accrued indemnity benefits remained outstanding.

6.2(6): Statement of Need: "If all parties are represented by an attorney, the parties may waive the statement of need, unless the case involves a dependent who is a minor."

6.2(9): Best Interests of Claimant: "If all parties are represented by an attorney, a commutation of benefits is presumed to be in the best interests of the claimant."

6.2(10) Definitely Determined Period of Time: "If all parties are represented by an attorney, the parties may stipulate to the definitely determined period of compensation."

Going forward, where both parties are represented and are in agreement that a commutation is appropriate, a commutation will be presumed to be in the best interest of the Claimant. Practically speaking, this means Claimants will no longer be required to identify on the Full Commutation documents why they are in need of a lump sum settlement or how they intend to spend their settlement proceeds, unless they are a minor. In addition, where all parties are represented, the parties may stipulate to the period of commutation involved in commuting the award or settlement. Parties attempting to settle via Full Commutation will no longer be required to establish consecutive weeks of indemnity paid in the past or that there are at least ten remaining weeks owed in the future to satisfy the prior Full Commutation requirements. Parties now merely need to agree on the period of compensation. Note, pursuant to Iowa Administrative Code section 876-6.3(2), unless the discount is waived by the insurance carrier, the future benefits that are commuted are discounted to their present value at the rate of interest on judgments and decrees.

These rules went into effect March 25, 2023 for Full Commutations going forward.

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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2023 Peddicord Wharton. All Rights Reserved.

04/04/2023

West Virginia News: Employer and Co-Employee Immunity, COVID-19 Compensability, and Intentional Tort Damages Cap

West Virginia Supreme Court of Appeals

http://www.courtswv.gov/supreme-court/docs/spring2023/21-0841-hutchison-p.pdf

In Precision Pipeline, the Supreme Court reinforced what it termed as “sweeping” immunity from common law tort liability provided to employers by the workers’ compensation statute. The workers’ compensation act shields an insured employer from liability outside the workers’ compensation system for workplace injuries. Similarly, an employee of an insured employer who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries caused.

Mr. Weese was injured in course and scope of his employment with Precision Pipeline and brought claims of negligent hiring, retention, and supervision against his employer with respect to co-employees, negligence claims against the employer and co-employees, a vicarious liability claim against his employer, and a claim for punitive damages. The Court reversed the circuit court’s order denying a motion to dismiss because workers’ compensation immunity bars the employee’s claims.

Weese severely injured his left leg at work and was treated at the accident scene by an on-site EMT Vanessa Stromberg who also was employed by Precision. Weese argued the EMT was not licensed and “provided no actual medical assistance or intervention on site;” and that “no ambulance or outside medical assistance” was summoned in violation of West Virginia law and public policy to treat medical emergencies. Weese alleged that he has been unable to work and has suffered permanent injuries as a direct result of Precision's negligence “in seeking acute medical care for [him]” and “the lack of competent immediate [sic] medical care.” Weese also alleged in his complaint that “supervisors and other Precision Pipeline employees received monetary bonuses based in part on workplace safety and limiting reportable workplace injuries[,]” and that petitioners “conspired to provide the bare minimum emergency medical response to [respondent] to ensure that safety bonuses were not affected.” Because Weese’s injury occurred in the course and scope of his employment, he received workers’ compensation benefits for his injury. He also claimed negligent hiring, retention, and supervision against Precision with respect to a co-employee superintendent and the co-employee EMT (Count 1); negligence against Precision Pipeline and the two co-employees (Count 2); vicarious liability against Precision (Count 3); and punitive damages (Count 4). The defendants moved to dismiss asserting workers’ compensation immunity under W. Va. Code § 23-2-6 (2003) and § 23-2-6a (1949). 

The Court described workers’ compensation immunity from common law tort liability as sweeping:

The Legislature intended for W.Va. Code § 23-2-6 (1991) to provide qualifying employers sweeping immunity from common-law tort liability for negligently inflicted injuries. As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), ‘[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and ‘shall not be liable to respond in damages at common law or by statute.’ W. Va. Code § 23–2–6 [1991].

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3 (quoting Bias v. E. Assoc'd. Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006)).

The Court noted that the workers’ compensation immunity extends to negligent co-workers:

The sweeping immunity afforded to employers by West Virginia Code § 23-2-6 extends to acts of fellow employees by virtue of West Virginia Code § 23-2-6a, which provides: ‘The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.’

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3.

The Court found it was undisputed Weese filed for workers’ compensation benefits for his injury, and Weese’s receipt of workers’ compensation benefits “. . . necessarily embraces a determination that his injuries were sustained during the course of and as a result of his employment.” Precision Pipeline, 2023 WL 2365328, at *4 (quoting with emphasis added Bennett v. Buckner, 150 W. Va. 648, 653, 149 S.E.2d 201, 204 (1966)). Citing no supporting legal authority, Weese claimed Precision's negligence in hiring, retaining, and supervising the employee as an EMT is not the type of employer negligence contemplated by West Virginia’s workers’ compensation law such that immunity should bar his claim. See id. The Court found this argument ignored the clear and unambiguous language of the statute expressing a clear legislative intent to provide immunity.

West Virginia Code § 23-2-6 expressly provides that qualified employers are “not liable to respond in damages at common law ... for the injury or death of any employee, however occurring[.]” Id., in pertinent part (emphasis added). As we have already noted, “however occurring” means “an employee who is injured in the course of and as a result of his employment, and one who, under the common-law principles of master and servant, could have maintained an action against his employer.” Falls, 223 W. Va. at 72, 672 S.E.2d at 208 (emphasis added). Clearly, respondent, who concedes that he was injured in the course of and as a result of his employment, could have maintained an action against Precision under the common law principles of master and servant. Accordingly, workers’ compensation immunity bars respondent's claim for negligent hiring, retention, and supervision.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *4 (quoting Falls v. Union Drilling, Inc., 223 W. Va. 68, 72, 672 S.E.2d 204, 208 (2008)).

The Court similarly found that Weese’s co-employees are immune from suit.

It is beyond cavil that Stromberg and other employees were acting in furtherance of Precision's business when they attended to respondent following his injury. The allegations in respondent's complaint state that Petitioner Vanessa Stromberg, a supposed EMT employed by Precision, was summoned to the site where respondent was injured, that she failed to provide medical assistance, and that she and other Precision employees drove past a nearby hospital in order to transport respondent first to Precision's office, transferring him to another vehicle, and finally driving him to MedExpress. Respondent's own account of the events at issue – including that the employees’ actions were motivated by monetary safety bonuses allegedly offered by their employer – clearly shows that they were acting in furtherance of their employer's business, albeit negligently so. As such, Stromberg and her fellow employees are immune from suit.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *5.

Intermediate Court of Appeals

In the Spring Term of Court in 2023, the Intermediate Court of Appeals of West Virginia (ICA) continues to issue decisions of importance in workers’ compensation cases. Two opinions of note address the question whether a COVID infection is an ordinary disease of life or an occupational disease.

COVID Compensability

PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-138_greear.pdf

In the first signed opinion in the Spring Term of 2023, the ICA reversed the Board of Review and remanded the case to determine whether claimant met the six statutory factors for establishing a communicable disease of ordinary life was compensable. The ICA found that the Board of Review's order failed to provide sufficient findings of fact and conclusions of law to support its ruling. West Virginia Code § 23-4-1(f) (2021) provides that no ordinary disease of life to which the general public is exposed outside of employment is compensable under workers’ compensation unless the disease was incurred in the course of and resulted from employment. To make such a determination, a detailed analysis of the six factors listed in West Virginia Code § 23-4-1(f) must be completed. No such analysis was completed by the BOR, so the ICA vacate the BOR's final order and remanded the case with direction to make specific findings of fact and conclusions of law for each of the individual factors under West Virginia Code § 23-4-1(f). PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W.Va. App., 2023).

Foster was employed by PrimeCare as the Health Services Administrator at Southern Regional Jail, and had administered COVID-19 tests to inmates in the medical unit at the jail. When testing, Foster wore full personal protective equipment including an N95 mask. Foster attended a management staff meeting with the heads of each department in the jail. Several days after the meeting, PrimeCare sent everyone who attended the meeting home to quarantine, due to members of the staff testing positive for COVID-19. During Foster’s quarantine period, she engaged in several non-work related activities, including a trip to a drive-through zoo with her mother, father, and two nieces and a visit to the emergency room on August 4, 2020. On August 4, 2020, Foster submitted to a COVID-19 test at Summers County Appalachian Regional Healthcare Hospital, which was negative. On August 11, 2020, Foster took a second COVID-19 test, which was positive. Foster was hospitalized from August 11, 2020, to August 24, 2020, due to pneumonia. As of August 20, 2020, Ms. Foster tested negative for COVID-19.

Foster's medical records note that she has a history of recurrent bronchitis, suffers from morbid obesity, and had an issue with sinus tachycardia over the last few years. Beginning August 31, 2020, and continuing through March 9, 2022, Foster underwent treatment from multiple doctors for COVID-19, major depressive disorder, morbid obesity, asthma, congestive heart failure, dyspepsia, and tachycardia. PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W. Va. App., 2023).

Claimant filed an application for workers’ compensation benefits (“WC-1”) alleging direct COVID-19 exposure while at work. The physician’s portion of the WC-1 form diagnosed Foster with COVID-19 but indicated “N/A” in response to whether the condition was a direct result of employment. Claimant completed a second WC-1 form again alleging direct COVID-19 exposure while at work. The physician completing the physician's portion of the second WC-1 form indicated “non-occupational condition” in response to whether the condition was a direct result of employment. On March 1, 2022, the claim administrator denied Foster's claim for COVID-19. This order was appealed.

Bruce Guberman, M.D., conducted an IME of Foster and determined that Foster's contraction of COVID-19 was an “occupational disease” based on the medical records and medical history reported by Foster. Dr. Guberman was subsequently deposed and acknowledged that no medical or scientific tests were available to determine the exact source of Foster's COVID-19 infection. Thomas Parker, M.D., issued a medical review report opining that Foster had COVID-19 in August of 2020, but that the condition was not an occupational disease. Further, Dr. Parker opined that Foster recovered from COVID-19 pneumonia very quickly based on the total lung capacity pulmonary function test from September 1, 2020. Dr. Parker attributed Foster's continuing pulmonary problems to asthma and tachycardia, which were well established in her medical records and pre-dated her COVID-19 diagnosis.

On August 29, 2022, the Board of Review reversed the claim administrator, held Foster's workers’ compensation claim compensable for COVID-19, and awarded her temporary total disability benefits from August 10, 2020, through March 9, 2022, to continue thereafter as substantiated by proper medical evidence.

The ICA examined the different routes some state legislatures have taken in addressing COVID-19 in the context of workers’ compensation, and the Court noted the limited number of appellate courts addressing the compensability of COVID-19 in workers’ compensation. The ICA also discussed the enactment by the West Virginia Legislature in March 2021 of the COVID-19 Job Protection Act in W. Va. Code § 55-19-6, that provides that workers’ compensation benefits are the sole remedy for any injury, disease, or death when the work-related injury, disease, or death is caused by COVID-19 received in the course of and resulting from covered employment.

COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. “To determine if an ordinary disease of life follows as an incident of occupational disease, a six-factor analysis must be completed, and all factors must be met.” PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *3.

W. Va. Code 23-4-1(f) provides the six-factor compensability test as follows:

A disease is considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction: Provided, That compensation is not payable for an occupational disease or death resulting from the disease unless the employee has been exposed to the hazards of the disease in the State of West Virginia over a continuous period that is determined to be sufficient, by rule of the board of managers, for the disease to have occurred in the course of and resulting from the employee's employment.

The Court held:

With this statutory framework in mind, we hold that although there is no prohibition on a claim for workers’ compensation benefits arising from or relating to COVID-19, it is generally not compensable, as it is a disease of ordinary life, unless the six factors contained in § 23-4-1(f) are met. While this undoubtedly creates a high burden on the claimant in establishing his or her case, it does not bar the compensability of COVID-19 claims when this burden is met.

PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *4.

COVID Compensability

Vaughn Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision)

http://www.courtswv.gov/intermediate-court/memo-decisions/Spring2023/22-ICA-105md.pdf

In Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision), the ICA held that a determination of COVID-19 as an occupational disease requires the Board of Review to meaningfully assess the facts of each claim under the six-factors set forth in W. Va. Code 23-4-1(f), as discussed in PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023). Hutchison failed to satisfy all of the six factors and the denial of his COVID-19 claim was affirmed.

Hutchison was employed by Raytheon as a builder of aircraft de-icing units. During the shut downs caused by the COVID-19 pandemic, Hutchison and his co-workers were deemed “essential workers” and the Raytheon facility operated normally with no reduction in the number of employees working any given shift. Hutchison testified co-workers were in close proximity to one another, and no social distancing or masking protocols were in place at the facility. Hutchison alleged he was exposed to and contracted COVID-19 in his workplace during an outbreak among employees when he and eight others tested positive. Hutchison v. Raytheon Corporation, 2023 WL 2568817, at *1.

Hutchison admitted that he attended church approximately three times monthly where congregation attendance consisted of approximately two hundred people. Hutchison was not aware of the health department considering his church to be a place of COVID-19 outbreak. The record is silent as to whether any COVID-19 safety protocols were employed by the church.

After contracting COVID-19, Hutchison was hospitalized and treated for atypical pneumonia from COVID-19 infection and dyspnea. He also reported to the hospital emergency department for shortness of breath, viral pneumonitis, and a respiratory tract infection from COVID-19. Hutchison completed a West Virginia Workers’ Compensation Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form alleging that he had contracted COVID-19 due to his workplace exposure. The physician's portion of the application was completed by Zach Halsey, D.O., who confirmed the diagnosis of COVID-19. Hutchison v. Raytheon, 2023 WL 2568817, at *2.

The claim administrator denied Hutchison's workers’ compensation claim based upon a lack of a causal connection between Hutchison's COVID-19 diagnosis and his work per W. Va. Code § 23-4-1(f), as COVID-19 is a disease of ordinary life to which the public is exposed outside of work. Hutchison protested and the Office of Judges affirmed the order of the claim administrator, concluding that COVID-19 is a disease of life to which the public at large is exposed and Hutchison's exposure at work did not arise to a level where such exposure could be deemed to have arisen in the course of and resulting from his employment. The Board of Review affirmed the decision of the Office of Judges.

On appeal, the ICA stated that an analysis of compensability of COVID-19 required Hutchison to satisfy all six factors set forth in W. Va. Code § 23-4-1(f) to prove compensability. In this case, the Board of Review found that COVID-19 is a disease of life to which the public at large is exposed and concluded that Hutchison's exposure at work did not arise to a level which could be deemed to have arisen in the course of and resulting from his employment. The Board of Review determined that even if it were to concede factors one, two, and three, that Hutchison could not satisfy the remaining factors. Specifically, after discussing the evidence introduced regarding Hutchinson's exposure at work and potential exposure at other locations including church, the Board of Review found “as the claimant described his exposure at Raytheon Corp., it would be difficult to find that COVID-19 comes from a hazard to which a workman would have been not exposed outside of employment.” The Board of Review also concluded that the exposure was not incidental to the character of the business, and that it did not have its origin in a risk connected with the employment. Hutchison v. Raytheon, 2023 WL 2568817, at *3.

The ICA agreed and concluded that the Board of Review was not clearly wrong in finding that Hutchison failed to meet his burden to prove that his contraction of COVID-19 was the result of his employment. “Per our decision in PrimeCare, if the BOR finds that the claimant has failed to satisfy any of the six factors under West Virginia Code § 23-4-1(f), further analysis is unwarranted.” Hutchison v. Raytheon, 2023 WL 2568817, at *3 (emphasis in original).

Jurisdiction

In Jessica Cassel v. Aspen Builders, Inc., No. 22-ICA-211, 2023 WL 2366502 (W. Va. App., 03/06/2023) (memorandum decision), the ICA addressed the question whether a fatal dependents’ benefits claim was properly filed in West Virginia when the employee’s death occurred on a job site in Kentucky. The claim administrator issued an order denying dependent benefits for lack of jurisdiction because Mr. Cassel was killed while working in Kentucky on a non-temporary basis. To be entitled to benefits under the West Virginia Workers’ Compensation system an employee's work in another state must be on a temporary or transitory basis. See West Virginia Code § 23-2-1a (2021). Cassel v. Aspen Builders, Inc., 2023 WL 2366502, at *1. The ICA found that the Board of Review was not clearly wrong in finding that Mr. Cassel’s work in Kentucky was not temporary or transitory due to testimony from the employer that Mr. Cassel would be working in Kentucky for over thirty days and the project he was working on when he sustained the fatal injury did continue beyond thirty days. The ICA found no error in the Board of Review’s ruling that Ms. Cassel is not entitled to Workers’ Compensation benefits in West Virginia.

West Virginia Legislative Session 2023

Intentional Tort Legislation Damages Cap

House Bill 3270 amends West Virginia Code § 23-4-2 and the deliberate intent exception to the exclusive remedy of workers’ compensation insurance for employee recovery for workplace injuries. The amendments limit noneconomic damages to $500,000 and heightens the burden of proof in deliberate intent cases based on occupational pneumoconiosis. The bill is effective 90 days from passage on June 8, 2023. The section applies to causes of action accruing on or after July 1, 2023.

House Bill 3270 created a new section W. Va. Code § 23-4-2a. In any deliberate intent lawsuit, the maximum amount recoverable as compensatory damages for noneconomic loss may not exceed the higher of two times the economic damages before the workers’ compensation offset or $500,000 for each person, regardless of the number of plaintiffs or defendants or, in the case of wrongful death, the number of distributees.

House Bill 3270 also sets a higher standard of proof necessary to bring a deliberate intent case when the underlying workplace claim is for occupational pneumoconiosis, set forth in W. Va. Code § 23-4-2(d)(2)(B)(v)(IV). House Bill 3270 added a threshold requirement that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”

Preferential Recall of Injured Employee

Another bill of interest to businesses in West Virginia is Senate Bill 661 that amends West Virginia Code §23-5A-3, relating to the preferential recall rights of an employee who is off work due to a compensable injury. The changes in the new statute include the employee’s demand for reinstatement to his/her former position must be in writing and delivered to the employer’s address by U.S. Mail with return receipt requested. The preferential recall time period remains one year provided the employee provides the employer a current mailing address during the one-year period. Finally, the new bill provides for a preferential recall time period of no greater than 120 days after the employee is released to return to work by a licensed physician when the injured employee is employed by contractors as defined by W. Va. Code §30-42-3 of the West Virginia Contractor Licensing Act. The employee of such an employer has an obligation to continually seek the possibility of employment during the preferential recall period, and the employee’s right to preferential recall terminates once the employer offers the employee his or her former position or a comparable position. The bill was signed by Governor Justice on March 29, 2023, and is effective 90 days from passage on June 9, 2023.

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823