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.
For over 100 years it was accurate to say that the New Jersey Workers’ Compensation Act is a benefits law, not an employment rights law – but not for long. On May 20, 2021, the New Jersey Assembly voted in favor of creating a hiring preference for certain employees who reach maximum medical improvement (MMI). Under A2617 an employer with 50 or more employees must provide a hiring preference to an injured employee who has reached MMI, is unable to return to his or her own former position, but can perform the essential duties of an existing unfilled position.
When an employment law provision like this gets inserted into the New Jersey Workers’ Compensation Act, one must wonder what is the problem that the legislature is trying to resolve?
Perhaps the rationale was to reinforce existing employment laws under the New Jersey Law Against Discrimination and the ADA? No, that cannot be the answer because the laws are different. The NJLAD and ADA require the worker to prove a disability for coverage and the employee has the obligation to make a request for reasonable accommodation. A2617 does not contain a requirement that covered employees must prove a disability or request a reasonable accommodation. It seems to cover any and all employees who reach MMI and who cannot perform their former job – but only if their injury arose from work.
Perhaps the rationale was to solve the problem of employees not being able to find new jobs? The sponsors wrote, “Workers’ compensation injuries can be traumatic and devastating. No injured employee should be left without options for work?” This cannot be the answer either because the US Bureau of Labor Statistics announced on March 31, 2021, that the number of unfilled jobs in the United States is 8.1 million. New Jersey’s population is 3% of the nation’s total. Using three percent as a ballpark percentage for New Jersey, there would be 240,000 unfilled jobs in this state. It is easier today to find a job than it has been in half a century.
Maybe the rationale was to help a narrow category of workers who are financially disadvantaged by injuries? No, that does not make sense. Consider two employees with identical low back injuries who require fusion surgery at L4-5 and L5-S1. Employee A falls on January 1, 2021 on his deck at home and has fusion surgery. Employee B falls on January 1, 2021 at his work desk and has the same fusion surgery. Both reach MMI in May 2021. Employee A is not eligible for the $969 per week for lost time benefits (temporary disability benefits) because the injury occurred at home. Employee A is also not eligible for full medical coverage and must pay expensive deductibles and co-pays. Finally, Employee A is not eligible for partial permanent disability benefits in workers’ compensation.
By contrast, Employee B gets $969 per week for temporary disability benefits, has no medical bills to pay under workers’ compensation and eventually settles the workers’ compensation case for 40% permanent partial disability or $124,080 – all of which is tax free. So which worker did the legislature attempt to provide the job preference to? You guessed it: the one with the advantages of workers’ compensation coverage.
When it comes to the concept of a hiring preference for workers with injuries, there is no logical rationale to distinguish between seriously injured workers who get hurt at home versus those who get hurt at work. The NJLAD doesn’t make that distinction. The ADA doesn’t make that distinction. These employment laws are already adequate, and there is no need for A2617.
What does this bill do for the welfare of the state? Assuming A2617 in fact creates rights that did not previously exist for employees who cannot perform their job duties due to work-related injuries, one must wonder why would the legislature subject employers to potential for more litigation over and above the cost of workers’ compensation when so many employers in the northeast are already fleeing to more friendly business climates in the south?
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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.
Legal Update by Attorneys Nick Cooling, Alison Stewart, and Law Clerk Jordan Gehlhaar
On April 29, 2021, an Iowa District Court affirmed a final decision of the Iowa Workers’ Compensation Commission relating to interpretation of the shoulder under amended section 85.34. You can view our briefing of the Agency appeal decisionhere. The court affirmed that “shoulder” as a scheduled member includes the “complex and intertwined structure of the shoulder and not just the joint.”
Following an injury to her shoulder, Claimant Chavez was diagnosed with a full thickness rotator cuff tear, severe AC arthrosis, and tendonitis and tearing of the biceps tendon. She underwent a right shoulder arthroscopy with repair of the rotator cuff tendon (including supraspinatus, infraspinatus, and subscapularis tendons), debridement of the labrum, biceps tendon, and subacromial space, a biceps tenotomy, and subacromial decompression.
The primary dispute in the case was whether Claimant Chavez’s injury resulted in an unscheduled industrial disability or a scheduled member injury to her shoulder, in light of the Iowa Legislature’s 2017 addition of “shoulder” as a scheduled member under Iowa Code section 85.34(2)(n). The Iowa Workers’ Compensation Commissioner concluded this was a shoulder injury and therefore limited recovery based on her 10% upper extremity impairment rating. The Commissioner incorporated analysis from theDeng v. Farmland Foods ruling on the intricacies of the shoulder and legislative intent.
Claimant Chavez sought judicial review, asserting the injury should be unscheduled, or alternatively a combination of two injuries resulting in a body as a whole injury. On review, the district court agreed that “shoulder” was ambiguous in that it could mean just the shoulder joint, or it could include the tendons and muscles connected to the joint. Utilizing dictionary definitions and legislative history, the court concluded the ordinary interpretation of shoulder is the “complex structure that includes the joint, tendons, and muscles.” Therefore, it was not error for the Commissioner to find Chavez’s injury to her rotator cuff, labrum, and other tendons and muscles established a scheduled member injury under section 85.34(2)(n). Additionally, the court affirmed denial of industrial disability based on injury to two scheduled members: the shoulder and the arm. Claimant failed to meet her burden to establish an arm injury.
Consistent with prior decisions on this issue, the court noted that the exact parameters of a scheduled shoulder injury under section 85.34(2)(n) will need further exploration and development. Peddicord Wharton will continue to monitor case law on this issue.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
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. ©2021 Peddicord Wharton. All Rights Reserved.
Written by: Tracey Jones
Occupational diseases that attack injured workers’ lungs are often filed with the North Carolina Industrial Commission. The most common lung diseases include: (1) silicosis; (2) asbestosis; (3) byssinosis; and (4) occupational asthma. Silicosis and asbestosis are specifically enumerated in N.C Gen. Stat. § 97-53. Byssinosis and occupational asthma are not specifically enumerated under this statute, but fall under the “catch-all” provision of the statute.
Silicosis is a progressive disease that belongs to a group of lung disorders called pneumoconiosis. Silicosis is marked by the formulation of lumps (nodules) and fibrous scar tissue in the lungs. It is the oldest known occupational lung disease and is caused by exposure to inhaled particles of silica, mostly from quartz in rock, sand, and similar substances.
The precise mechanism that triggers the development of silicosis is still unclear. What is known is that particles of silica dust get trapped in the tiny sacs (alveoli) in the lungs where air exchange takes place. Diagnosis of silicosis is based on a detailed occupational history, chest X-rays, bronchoscopy and lung function tests. There is currently no cure for silicosis; however, treatment is available to relieve symptoms, treat complications, and prevent respiratory infections.
Asbestosis is a chronic, progressive inflammation of the lungs. Asbestosis is a consequence of prolonged exposure to large quantities of asbestos, a material once widely used in construction, insulation, and manufacturing. Asbestosis is most common in men over 40 who have worked in asbestos-related occupations. Smokers or heavy drinkers have the greatest risk of developing the disease.
Occupational exposure is the most common cause of asbestosis. Screening of at-risk workers can reveal lung inflammation and lesions including fibrosis (scarring of the lungs), as well as restriction on pulmonary function testing (PFT). The scarring is usually in the lower lobes of the lungs and the scarring is normally bilateral, or seen in both lungs. Pleural plaques are also seen in workers exposed to asbestos, but these plaques are generally not compensable under the NC Workers’ Compensation Act as they do not cause breathing impairment.
Byssinosis is a chronic, asthma-like narrowing of the airways. It is also known as the “Brown Lung” disease. The disease results from inhaling particles of cotton, flax, hemp or jute. More than 800,000 workers in the cotton, flax and rope-making industries are exposed in the workplace to airborne particles that can cause byssinosis.
Occupational asthma is a form of lung disease in which the breathing passages shrink, swell or become inflamed or congested as a result of exposure to irritants in the workplace. At least 15% of all cases of asthma can be tied to exposure to: animal hair, dander, dust, fumes, insulation and packaging materials, mites and other insects, or paints. Occupational asthma is most likely to impact workers who have personal or family histories of allergies or asthma, or who are often required to handle or breathe dust or fumes created by especially irritating material.
Short-term exposure to low levels of one or more irritating substances can cause a very sensitive person to develop symptoms of occupational asthma. A person with occupational asthma may have one or more symptoms, including cough, shortness of breath, tightness in the chest, and wheezing. The most effective treatment for occupational asthma is to reduce or eliminate exposure to symptom-producing substances. It is also important to note that this disease can be reversible.
Each of these diseases, the symptoms, and the treatment required are unique and should be treated as such. When a plaintiff files a workers’ compensation claim alleging an occupational disease lung claim with the North Carolina Industrial Commission, defendants must be prepared to proactively defend the claim with expert medical and vocational assessments.
JSB ATTORNEYS, PLLC
May 14, 2021
Legislation Enacted
Senate Bill 49: AN ACT relating to home and community based services waiver providers.(Effective June 28, 2021)
· Amend KRS 337.010 to exclude providers of certain home or community based services from the definition of employee in regards to payment of wages; amend KRS 342.650 to exempt certain home or community based services from coverage in regards to workers’ compensation; amend KRS 341.055 to exclude certain home or community based services from “covered employment” in regards to unemployment compensation.
Senate Bill 141 - AN ACT relating to the coal workers' pneumoconiosis fund.(Effective June 28, 2021)
· Amend KRS 342.1242 and KRS 342.1243 to provide guidelines for distribution of funds remaining in the Kentucky coal workers' pneumoconiosis fund.
House Bill 48 - AN ACT relating to reimbursement for pharmacist services. (Effective June 28, 2021)
· Create a new section of Subtitle 12 of KRS Chapter 304 to establish certain insurance practices relating to the reimbursement of pharmacists; amend KRS 304.14-135 to establish a clean claim form for the reimbursement of certain pharmacist services or procedures; amend KRS 304.17A-844 and 304.17B-011 to conform; amend KRS 18A.225 to require the state employee health plan to comply with pharmacist reimbursement requirements; amend KRS 342.020 to require workers' compensation employers, insurers, and payment obligors to comply with pharmacist reimbursement requirements.
House Bill 349 – AN ACT relating to legislative committees. (Effective June 28, 2021)
· Amend KRS 11.202, 304.13-340, 304.50-160, 341.240, 342.035, 342.1223, 342.230, 342.342, 342.765, and 342.817 to change the name of the committee of the General Assembly which shall receive agency reports.
Legislation proposed but not passed
Senate Bill 85 – AN ACT relating to workers' compensation for volunteer firemen and other emergency personnel.
· Amend KRS 342.140 to allow income benefits for volunteer firemen, police, and emergency management agency members or trainees to be based on fifty percent of the state average weekly wage if that is greater than the average weekly wage of their regular employment.
· 01/07/21: introduced in Senate to Committee on Committees (S); 02/02/21: to Economic Development, Tourism, & Labor (S)
Senate Bill 157 - AN ACT relating to workers' compensation.
· Amend KRS 342.610 to provide that contractors shall not be liable for payment of compensation to subcontractors with no employees who are not subject to KRS Chapter 342.
· 02/03/21: introduced in Senate to Committee on Committees (S); 02/09/21: to Economic Development, Tourism, & Labor (S)
House Bill 242 - AN ACT relating to the recognition and registration of professional employer organizations.
· Create new sections of KRS Chapter 336 to declare that professional employer organizations provide a valuable service to commerce and should be properly recognized and regulated; define "client," "co-employer," "co-employment relationship," "covered employee," "insurer," "professional employer organization group," "person," "professional employer agreement," "professional employer organization," "professional employer services," "registrant," and "temporary help service"; indicate that covered employees shall be deemed employees of the client for purposes of determining tax credits or economic incentives; require a person providing professional employer services to be registered and to set forth the registration requirements; require professional employer organizations to pay a registration fee; require a professional employer organization to either maintain positive working capital or provide a bond, letter of credit, or security; set forth the rights and responsibilities of parties to a co-employment agreement; set forth the health insurance obligations of professional employer organizations; set forth the workers' compensation requirements of professional employer organizations and the client; set forth the unemployment insurance obligations of the professional employer organization and the client; prohibit a person from knowingly providing professional employer services without becoming registered and set forth actions that may be taken by the Department of Workers' Claims against any person in violation; amend the definition of "premium" in KRS 342.0011 to include co-employment relationships with a professional employer organization; amend KRS 342.990 to delete references to KRS 342.615; repeal KRS 342.615; state that the provisions of this Act are severable.
· 02/09/21: introduced in House to Committee on Committees (H); 02/10/21: to Small Business & Information Technology (H)
House Bill 385 – AN ACT relating to employment.
· Amend KRS 337.010 to remove exemptions in definition of employee for agricultural workers and domestic service workers; amend KRS 342.630 to indicate that agricultural employers are subject to KRS Chapter 342; amend KRS 342.650 to remove exemptions for domestic service employees and agricultural employees from coverage under KRS Chapter 342; amend other statutes to conform.
· 02/04/21: introduced in House to Committee on Committees (H)
House Bill 529 - AN ACT relating to workers' compensation.
· Amend KRS 342.610 to exclude certain levels of delta-9-tetrahydrocannabinol in the blood from the presumption that an injury was caused by the introduction of certain substances into the employee's body.
· 02/22/21: introduced in House to Committee on Committees (H)
House Bill 59 - AN ACT relating to workers' compensation.
· Amend KRS 342.020 to require an employer to pay for medical benefits at the time of injury and thereafter during disability instead of 780 weeks; amend KRS 342.990 to conform.
· 01/05/21: to Committee on Committees (H)
House Bill 62 - AN ACT relating to occupational disease claims.
· Amend KRS 342.125 to remove the requirement that an affected employee previously diagnosed with occupational pneumoconiosis resulting from exposure to coal dust must have an additional two years of employment in the Commonwealth wherein the employee was continuously exposed to the hazards of the disease in order to reopen a claim.
· 01/05/21: to Committee on Committees (H)
House Bill 282 - AN ACT relating to workers' compensation.
· Amend KRS 342.315 to eliminate the requirement that physicians contracting with the commissioner of the Department of Workers' Claims to perform evaluations in occupational disease claims be "B" readers who are licensed in Kentucky and are board-certified pulmonary specialists; amend KRS 342.316 to allow the commissioner to select a physician or medical facility for referral in occupational disease claims and eliminate the requirement that such physicians be "B" readers who are licensed in Kentucky and are board-certified pulmonary specialists; amend KRS 342.794 to delete the definition of "board-certified pulmonary specialist" and eliminate the requirement that physicians on the list of qualified "B" readers maintained by the commissioner include only those licensed in Kentucky and board-certified pulmonary specialists.
· 02/02/21: to Committee on Committees (H)
House Bill 500 - AN ACT relating to workers' compensation for first responders.
· Amend KRS 342.0011 to clarify definition of "injury" to include psychological injuries for certain employees; create a new section of KRS Chapter 342 to set out when the psychological injuries are valid workers' compensation claims when no physical injury exists.
· 02/10/21: to Committee on Committees (H)
House Bill 479 - AN ACT relating to legal actions involving the Commonwealth of Kentucky and declaring an emergency.
· Amend KRS 15.020 to authorize the Attorney General to bring an action regarding the constitutionality of statutes, regulations, and orders; establish venue; amend KRS 15.060 to authorize assistance from other areas of state government regarding investigations and prosecutions of various matters; amend KRS 15.113 to identify additional illegal or fraudulent activity under the investigative authority of the Attorney General; amend KRS 15.240 to expand the statutes under which the Attorney General can initiate an action or intervene in an action; amend KRS 342.760 and 342.765 to transfer the legal representation and reporting requirements regarding the uninsured employers fund from the Attorney General to the Labor Cabinet; amend KRS 446.350 to establish a waiver of sovereign immunity under limited situations; EMERGENCY.
· 03/11/21: recommitted to Appropriations & Revenue (H)
Should you have any questions or wish to discuss any of these matters personally, please contact us at your convenience.
H. Douglas Jones, Esq.
Margo J. Menefee, Esq.
WORKERS' COMPENSATION LAW Deny, Deny, Deny – Claimant’s Denial of History Results in Denial of Petition |
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The Claimant was involved in a work-related lifting injury to her low back in June 2018. In October 2018, Claimant went to the emergency room with shoulder and neck pain, with no, follow-up treatment for the shoulder until she saw an orthopaedic surgeon in April 2019. According to the surgeon, Claimant identified an incident that occurred 6-8 weeks prior in which she was wearing a large, bulky back brace and attempted to reposition herself; after placing her full weight on her left arm, she experienced left shoulder pain, which was ultimately diagnosed as a rotator cuff tear. A similar history was given to the physical therapist. The surgeon testified that he relied upon this history to relate the left shoulder injury to the work accident, as he placed the blame on the work-related low back brace causing the claimant to move unnaturally. At the Hearing on Claimant’s Petition, however, Claimant gave an entirely different story. Claimant testified she was sitting on the couch in October 2018 and moved her left arm outward, at which point she felt a pop in her shoulder. Claimant specifically denied the history given by the surgeon and the physical therapist, with respect to both the mechanism of injury and the timing – she insisted it was a single event in October. Claimant also denied moving in any particularly awkward or abnormal ways while in the brace, again departing from the history reported by her surgeon. After hearing the significant inconsistencies and outright denials of the recorded histories, the Board found Claimant was not credible or consistent, finding her “timeline of events incoherent” and noting her denials of the history given to her doctors difficult to reconcile. The Board was “left wondering if there was an inciting event” and, if so, whether it was one event or multiple. Instead, the gaps and uncertain symptoms and causes supported the opinions of the Employer’s expert, Dr. Matz, who testified that Claimant’s condition presented as the result of a rotator cuff that has worn down over 68 years of daily life and work. Because the Board could not reconcile the denials with the treating surgeon’s efforts to explain the mechanism of injury, the Board was left with no choice but to deny Claimant’s Petition entirely on the basis of causation alone. Should you have any questions regarding this Decision, please contactNick Bittner or any other Attorney in our Workers’ Compensation Department. Geraldine Daggett v. ShopRite, IAB No. 1500021, March 19, 2021. |
The Alabama Court of Civil Appeals recently released an opinion in In re: Laura Register v. Outdoor Aluminum, Inc. wherein it reversed summary judgment in favor of the employer in a retaliatory discharge case. While the decision itself did not create any new legal precedent, or narrow, or expand prior holdings, it did highlight the importance of communication between the employer and the workers’ compensation claim handler.
In Register, the non-retaliatory reason asserted as the basis for the termination was absenteeism. In the usual case, assuming the employee was absent more than what would typically be allowed, such a reason would be considered legitimate and not pre-textual. In Register, however, since the employee had not yet been medically released to return to work, the Court of Appeals determined that there was a contradiction between the work status and the alleged absenteeism. As such, the Court held that there were material issues in dispute that needed to be decided by a jury.
My Two Cents: As the prison captain said to Paul Newman’s character in Cool Hand Luke, “What we’ve got here is a failure to communicate.” The effective handling of a workers’ compensation claim involves a partnership between the employer and the claims handler. As with any good partnership, communication is the key to success. In many cases, years of litigation and the time and expense associated with it can be avoided with a single e-mail or phone call.
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This blog submission was prepared by Karen Cleveland, 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 Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
Written by: Tracey Jones
The tripartite relationship refers to the relationship between the insurer, the insured, and the attorney arising out of the insurance contract. Each party to the relationship has their own respective duties and roles, which will be discussed in turn. In litigation, it is critical for each member of the tripartite relationship to understand its role and responsibilities. .
*The role between the insured and the insurer is defined by the insurance contract, with any ambiguities being interpreted by the courts in favor of the insured.
The tripartite relationship is formed with the primary objective of achieving a successful result in litigation. This relationship, while seemingly simple on the surface, can create numerous, and often complex questions depending on the peripheral goals and interests of the parties, which are not always mutual. Understanding the roles and each role’s responsibility is critical throughout the claims process.
[1] N.C. Admin. Code, Tit.27, Ch2, Canons I-VIII.
Attorney Adam Bates obtained a complete defense verdict for his client in front of the Iowa Workers’ Compensation Commission. Claimant had alleged an injury to his low back and claimed entitlement to significant industrial disability as a result. The injury was denied by Mr. Bates’ client as non-work related and a failure to timely report the injury. Mr. Bates successfully argued to the Commission that Claimant’s injury was not work-related based upon medical evidence, witness testimony, and Claimant’s failure to timely report his injury as work-related.
The Deputy Workers’ Compensation Commissioner agreed with Attorney Bates’ arguments, dismissing Claimant’s case in its entirety. A copy of the decision can be found here.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
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. ©2021 Peddicord Wharton. All Rights Reserved.
Written by: Luke West
As 2020 unfolded and the COVID-19 pandemic set in across the world, it altered our way of life. In addition to closing schools and borders, the U.S. economy essentially shut down. Some businesses and industries were better equipped than others to handle the economic and public health fallout, and directed employees to work from home indefinitely. However, millions of workers, who provide services critical to the functioning of society, did not have the option to work from home.
According to the National Conference of State Legislators, these workers, who have been labeled “frontline” or “essential,” were in industries such as food and agriculture, health care, emergency services, transportation and delivery, energy, water and wastewater management, and critical manufacturing. These workers were, and still are, reporting to work every day.
COVID-19 has proved to be something of a moving target with the lockdown measures, new variants, and impact of vaccinations. The question of whether workers’ compensation covers communicable diseases, such as COVID-19, looms large. For carriers, employers, and workers’ compensation practitioners, the pandemic also begs other questions, such as:Are all communicable diseases the same? What are the critical factors for determining compensability of communicable diseases? Does the designation of an epidemic or pandemic change the way statutes are interpreted? Is there a way to reduce risk from these relatively common yet silent threats?
Are all communicable diseases the same?
Yes and no.
Communicable diseases are also known as infectious or transmissible diseases. The Wisconsin Department of Health reports that communicable diseases result from the infection and growth of pathogenic (disease causing) biologic agents in a human or other animal host. These types of diseases include Hepatitis A, B, and C, HIV, measles, salmonella, and COVID-19. Some communicable diseases have been found to be compensable, such as serum hepatitis in a lab worker.Booker v. Duke.
According to the Centers for Disease Control and Prevention (CDC), communicable diseases are spread through direct contact with a sick person, breathing in airborne viruses and bacteria, contact with blood and bodily fluids, contact with a contaminated surface, or insect or animal bites. All communicable diseases are not the same, and COVID-19 is a particularly insidious disease with specific peculiarities that we are just beginning to understand. The easy transmission and resulting widespread nature of COVID-19 creates increased chances of contracting the disease in public when compared to other communicable diseases.
Person-to-person spread is most likely to occur during close contact with infected persons and is mainly effectuated via droplets of respiratory secretions produced when an infected person cough or sneezes. It is also widely believed that COVID-19 can be transmitted by infected people who are asymptomatic. According to the Occupational Safety and Health Administration (OSHA), jobs that require sustained or frequent close contact with co-workers, customers, and/or members of the public who may be infected places them at an increased risk of contracting the disease.
By that standard, certain essential workers may be at an increased risk of contracting COVID-19 by virtue of their employment. However, OSHA’s guidance on control and prevention of COVID-19 also states that most types of workers have a similar risk of contracting COVID-19 as the general public. In fact, a recent study[1] suggests healthcare professionals actually have a greater risk of contracting the virus outside of the workplace, rather than at work. This may be due to the strict prevention controls present in the healthcare setting.
The problem of tracing the source of a COVID-19 infection is an important emerging issue in the workers’ compensation arena, especially considering the evolving medical guidance regarding prevention, the various vaccines available, and the effect on community spread. All of these issues have a direct bearing on whether a particular COVID-19 infection is compensable.
Does the designation of an epidemic or pandemic change the way statutes are interpreted?
There have been questions around whether the designation of COVID-19 as a worldwide pandemic puts it in a completely different category than how communicable diseases are typically defined within legal statutes.
The short answer is no.
There is no cannon of state statutory construction or interpretation that kicks in once a pandemic is declared. While we have seen in several states, the designation of a pandemic has had an impact on the back end by prompting some state legislatures to introduce bills modifying laws or issuing special directives making it easier for frontline or essential workers to have their COVID-19 claim covered under the workers’ compensation system.
Within North Carolina, a legislative push to streamline COVID-19 workers’ compensation claims for specific categories of essential workers did not cross the goal line. Last year, House Bills 1056 and 1057 proposed adding a presumption of workplace exposure and compensability for COVID-19 (and other pandemic) infections in a number of specific industries such as police, healthcare, fire, and anyone designated essential. However these bills appear to have stalled in Committee. As denied COVID-19 workers’ compensation claims in North Carolina reach the Industrial Commission, it will be essential to monitor the opinions and tailor your business operations and legal practice with respect to COVID-19 accordingly.
What are the critical factors for determining compensability of communicable diseases?
In most states, workers’ compensation injuries fall into one of two categories:
(1) Accidental injuries that can be traced to a specific time, place, and work-related cause (an injury by accident); and
(2) Occupational diseases to which the worker was exposed because of their employment.
The very nature of communicable diseases such as COVID-19 makes it difficult to fit particularly well into either category. In a state-by-state survey of COVID-19 compensability compiled by the National Workers’ Compensation Defense Network (NWCDN), Mimi Metzger of Ritsema & Lyon, LLC, reported that a survey of Colorado case law revealed claimants would typically bring communicable disease claims under both injury by accident and occupational disease categories. However, in most jurisdictions, Colorado included, it appears a potential claimant would have a better chance of proving compensability by pursuing an occupational disease claim. In particular, because COVID-19 is spread from person to person, rather than from exposure to some fixed aspect of the workspace, such as the presence of asbestos, satisfying the requisite causation element may be a difficult proposition.
In North Carolina, the burden for proving the causation requirement for occupational disease claims falls under the so-called “increased risk” rule (also the majority rule), where the employee must prove the risk of contracting the disease was inherent in the employment and that the employment presented an increased risk of contraction when compared to the general public.
Under this category, occupational diseases are not generally compensable if the risk of contracting the illness is common to the general public. If the disease is not the result of a risk specific to the workplace, there is a chance it would not compensable. The problem for Workers’ Compensation Boards, the Industrial Commission, and practitioners is that communicable diseases, such as COVID-19, are spread in the community and something to which the general public is easily exposed. How does one prove when, where, or how they contracted a virus when there is community spread? How does one defend against these claims and seek to prove a negative:that the worker did not contract the virus at work?
In North Carolina, an increased risk state, a COVID-19 infection would generally not be considered compensable because you would arguably be just as likely to contract the disease out in public as you would be at your job. That said, occupational disease claims are extremely fact-specific, so an important factor to consider is whether the job in question regularly exposes the worker to COVID-19 positive persons, such as certain workers in the healthcare field.
The difficulty in proving exposure can pose an issue for essential workers and others who are regularly exposed to the general public in the course and scope of their employment, but who are also human beings outside of work who, despite social distancing, mask regulations and even vaccines, could just as easily be exposed to COVID-19 outside of work. OSHA has tacitly recognized this proposition in its COVID-19 guidance by acknowledging that jobs requiring close contact with others may place those workers at a higher risk of contracting COVID-19 and that occupations which do not require that level of close contact may place those workers at a risk level akin to the general public. The fundamentally altered landscape in the United States during intense lockdown measures seems to cut against a defense that a worker could have just as easily contracted the disease by being out in public. However, as states begin to re-open, the likelihood of establishing increased risk at work when compared to the general public seems to decline.
The following are things to consider when determining whether there will be enough of a causal connection between employment and the contraction of COVID-19:
(1) The employee is a healthcare worker or other frontline worker who regularly comes into contact with COVID-19 positive persons;
(2) Evidence the employee was in direct contact with a COVID-19 positive person at work;
(3) Reliable expert evidence that their employment placed them at a greater risk of contracting the disease when compared to the general public;
(4) A plausible source of contraction at the workplace and incubation period that fits within the infection timeline; and/or
(5) A lack of equally plausible infection sources outside of the workplace. This would also require the demonstration of additional factors, such as:
· How many people the employee was in close contact with on an average day for 14 days prior to diagnosis;
· Whether the employee was provided with safety precautions, such as PPE, at work;
· Whether the employee used PPE outside of work;
· Hand sanitizing/washing stations at work;
· Hand sanitizing/washing practices outside of work;
· The extent to which the employee was or was not engaging in social distancing; and,
· Other measures that were present both inside and outside the workplace to reduce the risk of contracting the disease.
At this time, there are still questions within North Carolina on how COVID-19 compensability claims will be addressed by the Industrial Commission and the appellate courts. It is critical for an employer to be aware the employee’s burden of proof in regards to increased risk and to take steps to mitigate that risk to the extent practicable.
Now that we have an idea of how COVID-19 workers’ compensation claims are handled in North Carolina, let’s look at some of the steps that an employer can take to reduce their risk of an employee contracting COVID-19 while on the job.
Ways of Limiting Workers’ Compensation Risk for COVID-19
On an almost weekly basis, new research is published on the long-term health outcomes for COVID-19 survivors. An increasing body of research suggests that more serious long-term complications can include inflammation of the heart muscle (cardiovascular disease), lung function abnormalities (respiratory disease), acute kidney injury (renal disease), sensory problems and concentration/memory difficulties (neurological disease), and even psychiatric complications. While the pandemic data is starting to show some encouraging trends (at least, domestically) in terms of infection and death rates, the need for realistic exposure mitigation strategies should remain a priority for employers.
OSHA initially developed guidance for organizing worker exposure risk into various levels of risk and has provided specific guidance for each level in their “Guidance on Preparing Workplaces for COVID-19,” which is available on their website. (OSHA No. 3990-03, 2020). Additionally, the CDC’s National Institute for Occupational Safety and Health (NIOSH) provides guidance in the form of factsheets directed toward specific industries such as airports, banks, construction, critical infrastructure, manufacturing, meat and poultry processing, and transit workers. This information is available on the CDC’s website. These are good starting points for businesses looking to limit the risk of COVID-19 exposure and potential workers’ compensation claims.
Some general guidance from OSHA for employers seeking to reduce the risk of COVID-19 exposure includes:
· Promptly investigate any COVID-19 claim and take immediate steps to protect the infected employee and remainder of the workforce;
· Enhance ventilation by increasing air exchanges in rooms;
· Modify workstation layouts to ensure all employees remain six feet apart;
· Close common areas where employees are likely to congregate;
· Increase the frequency of cleaning frequently touched surfaces;
· Encourage sick employees to stay home;
· Send sick employees home immediately;
· Follow CDC-recommended guidance;
· For non-healthcare workers, the CDC recommends cloth face coverings in public and where social distancing measures are difficult to maintain;
· The EEOC indicated that employers could require employees to wear PPE to reduce the transmission of COVID-19, though OSHA leaves the determination of whether to require masks to the employer based on its assessment of risk factors to employees, recommending PPE for anyone in the medium or greater risk groups; and
· Educate employees about how they can reduce the spread of COVID-19.
OSHA has continued to update their recommendations for mitigating the risk of workplace exposure. To the extent practicable, employers are encouraged to:
· Develop an infectious disease preparedness plan;
· Implement basic infection prevention measures, detailed above; and
· Develop policies and procedures for prompt identification and isolation of sick employees, if appropriate;
As we continue learning more about this disease, and as more claims work their way through the state systems, we should be able to better assess the relevant workers’ compensation risks. In the meantime, the compensability analysis for COVID-19 in many states, including North Carolina, will continue to be fact-specific and will vary depending upon what is going on in the state in terms of rate of infection, the type of work being performed, comorbid health conditions of the particular infected employee, and the impact of vaccinations.
If you have questions or wish to discuss this further, please contact Heather Baker, Luke West, or your Teague Campbell workers’ compensation attorney.
This article, in its original format, appeared in the 2020 Larson Series, “Workers’ Compensation Emerging Issues Analysis: COVID-19 in the Workplace”.
Written by Tracey Jones
Workers’ compensation claims based on alleged psychological and mental impairments, including anxiety disorders, depression, and/or post-traumatic stress disorder (PTSD), are becoming increasingly prevalent, and understanding the differences between them is key in being able to adequately defend against them.
Psychological Claims Resulting From Physical Injury
When psychological claims are being asserted as the direct result of a physical injury, the psychological component of the claim can be hard to defend against.
Typically, Courts will find physical injuries that result in chronic pain with associated depression and anxiety to be compensable without strong expert testimony refuting the mental component of the claim.Powell v. O’Reilly Auto Parts, Inc., 259 N.C. App. 251, 812 S.E.2d 408 (2018) (Unpublished). InPowell, the Full Commission determined that plaintiff’s pre-existing psychological conditions were compensable aggravations from her fall because even though she didn’t tell anyone about it before her accident, she was still credible, and the treating doctors’ testimony was sufficiently specific, and therefore competent, on causation.
When trying to combat a psychological component of a physical injury claim, there are three best practices to keep in mind:
1. It is imperative to hire an expert to perform an evaluation of plaintiff. This expert should use diagnostic neuropsychological testing to support his or her opinions about the lack of causation between plaintiff’s mental disabilities and his or her physical injuries.
2. Surveillance can be a very useful tool when trying to defend against these types of claims. Multiple days of surveillance will probably be necessary in order to combat the assertion that on “the day in question” plaintiff was having a “good day.”Kirby v. Mission Hospital, 848 S.E.2d 754, 2020 WL 6140500 (2020) (Unpublished).
3. Finally, even though the psychological component usually arises later and does not present itself immediately after the injury by accident, we strongly encourage carriers to include questions in the recorded statement regarding the name of the plaintiff’s primary care physician as well as whether the plaintiff has previously suffered from a mental illness and received treatment for the same, including anxiety and depression. Primary care physician records can offer a wealth of knowledge about past problems and treatment that sometimes get overlooked or simply forgotten by a plaintiff.
Psychological claims resulting from physical injury are typically the most difficult to defend in North Carolina, and are found compensable more often than psychological claims where there is no physical injury present. Good investigative practices at the outset of a physical injury claim are critical to the defense of psychological assertions down the road. A mental health expert and other investigative means should be utilized strategically to ensure the best possible chance of prevailing.
Non-Physical Injury By Accident Psychological Claims
Over the last several years, the increase in non-physical psychological workers’ compensation claims matches an overall increase in anxiety and depression in members of the general public. Nevertheless, true psychological claims, without a precipitating physical component, are much harder for a plaintiff to prove. The North Carolina Workers’ Compensation Act allows for recovery of psychological and mental disorders which are proven to be an “occupational disease” or the result of a compensable “injury by accident.” There are two ways to prove that a “mental claim” is compensable under the Workers’ Compensation Act:
1. Claiming that a discrete stressful event resulted in an injury by accident; and
2. Asserting that the claimant suffers from a stress-related occupational disease under N.C.G.S. § 97-53(13).
The North Carolina Workers’ Compensation Act defines an “accident’ as an unlooked for and untoward event which is not expected or designed by the injured employee. Davis v. Raleigh Rental Ctr., 58 N.C. App. 113, 116, 292 S.E.2d 763, 766 (1982). The essence of an accident is its unusualness and unexpectedness. Id.
The injury by accident theory does not appear as frequently in appellate cases as the occupational disease theory with respect to mental and psychological illnesses. In any event, like the cases brought under the occupational disease theory, the cases brought as injuries by accident have had varying outcomes.
Whether a psychological impairment should be considered a compensable injury by accident depends heavily on the underlying facts of each specific case.The “incident” that leads to the alleged psychological impairment must be unusual and not part of the employee’s normal work routine.
For example, Courts have held that a performance review, or a routine, problem-solving meeting is an ordinary incidence of employment, and a nervous breakdown and stress-induced anxiety following thereafter does not constitute an injury by accident.Pitillo v. N.C. Dep’t of Envtl. Health and Natural Res., 151 N.C. App. 641, 566 S.E.2d 807 (2002). On the other hand, being falsely accused of stealing from the company was considered unusual and rose to level of an accident. SeeBursell v. Gen. Elec. Co., 172 N.C. App. 73, 616 S.E.2d 342 (2005).
These claims are also subject to an analysis of pre-existing conditions and often require expert medical testimony. Expert witnesses must give an opinion to a reasonable degree of medical certainty that the medical condition and accident are related. It is not sufficient to say that just because the medical condition was absent before the injury, but was present thereafter, that the two are linked.
Non-physical psychological workers’ compensation claims are not as straightforward as psychological claims directly resulting from a physical injury. The plaintiff still has the burden of proof, and use of expert witness testimony can assist in determining whether the psychological impairment should be considered a compensable injury.
Non-Physical Occupational Disease Psychological Claims
As stated earlier, a plaintiff can recover for psychological or mental claims under an occupational disease theory. Occupational disease claims are governed by N.C.G.S. § 97-53. Although anxiety disorders, depression, and PTSD are not specifically enumerated in this statutory list of compensable occupational diseases, they are included in the “catch-all” provision of subsection 13.Smith-Price v. Charter Pines Behavioral Ctr., 160 N.C. App. 161, 584 S.E.2d 881 (2003) (holding that post-traumatic stress disorder is a compensable occupational disease).
The North Carolina Supreme Court in Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983) explained what is required to prove an “occupational disease.” The three elements are:
1. The disease must be characteristic of, and peculiar to, the plaintiff’s particular trade, occupation or employment;
2. The disease must not be an ordinary disease of life to which the public is equally exposed outside the employment; and
3. There must be proof of causation (proof of a causal connection between the disease and the employment). “[T]he first two elements are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.”
North Carolina Appellate Courts have both upheld and rejected mental and psychological illness claims brought under an “occupational disease” theory of recovery. These cases typically turn on whether the plaintiff can show that his job responsibilities placed him at an increased risk of contracting the mental or psychological illness than the general public. Even if the plaintiff is successful in showing that his job placed him at an increased risk of developing the disease over the general public, he still has the burden of proving a causal nexus between the mental or psychological condition and his employment. Rutledge, 308 N.C. at 94, 301 S.E.2d at 365.
Often times the plaintiff has a pre-existing mental or psychological condition. It is imperative that prior medical history be obtained and investigated early on in a case. Although the Act allows for recovery when a pre-existing condition is materially aggravated or accelerated by one’s employment, it is crucial to determine whether it is a new or different condition which the plaintiff is experiencing rather than a mere continuation of a pre-existing condition. Anderson v. Nw. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951) (holding that in North Carolina, an injury arising out of and in the course of employment which materially accelerates or aggravates a pre-existing disease or infirmity is compensable).
In addition to establishing that there was an aggravation or acceleration of his pre-existing condition, the plaintiff must also “show that the employment placed him at a greater risk for contracting the condition [than the general public], even where the condition may have been aggravated but not originally caused by the [claimant’s] employment.”Chambers v. Transit Management, 360 N.C. 609, 613, 636 S.E.2d 553, 555 (2006).
Unless the plaintiff is in the public sector and provides aid to the community, such as a law enforcement officer, EMS worker, firefighter, or some other community servant, most jobs do not place individuals at an increased risk of developing psychological claims. Bad bosses, poor work reviews and severe and extreme work related stress and pressure have historically not been found compensable.Day v. Travelers Insurance Co., 845 S.E.2d 208, 2020 WL 4462171, (2020) (holding that an adjuster’s job, while very stressful, does not place her at an increased risk of developing depression and anxiety as opposed to the public generally).
Most of these claims are decided on the underlying facts and each must be analyzed on a case by case basis. Regardless, the plaintiff retains the burden of proof. He must prove every element of the claim, whether an accident or an occupational disease, and meet the criteria for the same under the North Carolina Workers’ Compensation Act to receive an award of benefits.
Claims Handling Tips for Psychological Workers’ Compensation Claims
The burden of proof for a psychological workers’ compensation claim lies with the plaintiff. However, to prepare a proper defense, there are some key claims handling tips to take into account, which include:
1. Ensure a thorough recorded statement is taken as soon as notification of a claim is received. The recorded statement should:
· Address the plaintiff’s regular, normal job duties;
· Identify anything new or unusual with the plaintiff’s job and the length of time or duration of the new or unusual activity;
· Identify the plaintiff’s prior medical history including whether he or she has ever treated for depression, anxiety, or any other psychological illness. If so, pin down the exact illness diagnosed; the type and frequency of psychiatric treatment received before and after; any difference in the plaintiff’s complaints or intensity level with regards to his psychological illness; and, the name of the medical professional providing treatment;
· Always request the contact information for the plaintiff’s primary care physician so you can obtain the records before accepting the claim;
· Identify the plaintiff’s supervisor and the co-workers plaintiff interacted with on a daily basis (so that interviews and fact investigation can occur with these individuals); and,
· Identify the plaintiff’s hobbies and activities (if plaintiff is going to baseball games and/or concerts on a regular basis then it is unlikely that he or she has an inability to function in society or at work).
2. Conduct surveillance, if warranted, to investigate the plaintiff’s physical activities and demeanor outside of his treating relationship with medical providers.
3. Perform extensive employer interviews in the early stages of the case. These interviews should also involve the plaintiff’s co-workers so that any pre-existing problems or complaints can be identified as compared to the new complaints that may have arisen.
4. Retain a psychological professional to analyze the issues, the type of job the plaintiff performs, and elicit opinions on causation.
5. Enroll the plaintiff in counseling instead of simply approving medications for psychological or mental illnesses. A plaintiff’s depression may drastically improve with counseling on a regular basis. Treatment notes often provide helpful information for the claim as well.
6. Control the claim by directing the plaintiff’s medical care. Make sure that only an approved, treating physician provides medications instead of allowing the plaintiff to go to his primary care physician for additional care for the same condition.
By engaging in these best practices early, during the investigative phase of the claim, a stronger defense can be prepared against psychological workers’ compensation claims when litigation does ensue.
If you have questions or wish to discuss this further, please contact Tracey Jones or your Teague Campbell workers’ compensation attorney.