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.
It Is Okay to Lose ‘Round One’ If You Conclude with a Complete Knockout |
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The parties entered into an Agreement acknowledging a lumbar soft tissue strain injury. Employer filed a Petition seeking to void the Agreement for fraud, arguing that Claimant had materially misrepresented her prior medical history at the time the Agreement was made. The Board denied the Petition finding there was insufficient evidence for the Agreement to be rescinded due to fraud. Employer filed a new Petition seeking to terminate ongoing benefits, under the theory that any work-related injury had resolved. Claimant argued that the Board’s earlier ruling “implicitly acknowledged” the compensability of radicular symptoms associated with the work injury, and therefore precluded a finding of resolution of injury. The Board rejected Claimant’s legal argument, noting that the burden of proof relating to fraud, that was controlling at the first Hearing, is a different and higher standard than the burden of proof on whether benefits should be terminated. Claimant could have misrepresented her medical history, but not to a degree of a legally fraudulent misrepresentation. The Board commented that it should have been clear from the first Decision that it was not deciding issues of nature and extent of injury, only whether the Agreement should be rescinded for fraud. The Board also agreed with Employer that Claimant had a pre-existing degenerative condition with a radicular component that became symptomatic leading up to the work accident and not impacted by the work accident. The Board accepted the opinions of defense medical expert Dr. Gelman, over that of Dr. Rudin, primarily because the Board did not find Claimant credible. Claimant provided very specific testimony that her radicular symptoms migrated from left to right sided secondary to the work accident. It was “suspect” that claimant would be that specific in testimony, yet three separate emergency room clinicians specifically recorded either no trauma or non-work-related histories. It was also suspect that in many locations in the records, Claimant had explicitly denied any history of prior low back pain or pain involving the same body part. The Board also noted Dr. Gelman’s opinions that claimant’s pre-existing MRI findings were competent to cause both right and left sided problems. Therefore, the Board found that Claimant’s soft tissue strain injury had resolved and granted Employer’s Petition. Should you have any questions regarding this Decision, please contactJohn Ellis, or any other attorney in ourWorkers’ Compensation Department. Dawn Lawson v. Amazon.com, Inc., IAB Hrg. No. 1473748 (Jan 7, 2021). |
Written by: Bruce Hamilton
Wanda Taylor has been appointed by Gov. Cooper to the Full Commission. If confirmed by the General Assembly, Attorney Taylor will replace Commissioner Charlton Allen, who has stayed on following the expiration of his term on June 30, 2020. Attorney Taylor is a Fellow of the College of Workers’ Compensation Lawyers. She received her JD degree from UNC-Chapel Hill and her undergraduate degree from Duke University. She is currently the Director of Litigation/Counsel at Key Risk Insurance. Previously, attorney Taylor served as a Deputy Commissioner and Chief Deputy Commissioner at the Industrial Commission for 20 years. Ms. Taylor’s appointment is subject to approval/confirmation by the North Carolina Gen. Assembly.
Adrian Phillips has been appointed by Gov. Cooper to the Full Commission to fill the slot currently held by Commissioner Loutit, whose term is set to expire April 30, 2021. Attorney Phillips has served as a Deputy Commissioner at the Industrial Commission since 2002. Before joining the IC, attorney Phillips worked as an assistant attorney general in the tort claim section of the North Carolina Department of Justice. Prior to that, Ms. Phillips prosecuted Medicaid fraud cases for the North Carolina Department of Justice and served as an assistant district attorney and Caswell and Person Counties. Attorney Phillips received her JD from North Carolina Central University school of Law and her undergraduate degree at Bennett College. Ms. Phillips’ appointment is also subject to confirmation by the North Carolina Gen. Assembly.
Celeste Harris has been appointed as a Deputy Commissioner. Attorney Harris has been in private practice for 30 years representing injured workers and workers compensation matters and individuals in personal injury and Social Security disability matters. She is a North Carolina state board certified Specialist in Worker’s Compensation Law and a North Carolina certified mediator. She earned her law degree from St. Louis University of school of Law, attending Wake Forest University school of Law during her third year. Ms. Harris will be assigned to the Winston-Salem regional office of the IC.
Effective March 1, 2021, all carriers, third-party administrators, and self-insured employers are required to provide the Commission with an email address for receipt of claim-related documents. The designated email address shall be provided to the Commission at contactinfo@ic.nc.gov . The email address provided will be used in cases where the Commission does not have an individual email address for the claims representative assigned to the claim. Providing an email address is mandatory and will ensure timely receipt of claim-related documents. See Rule 11 NCAC 23A .0109 (d).
Ten years ago, we posted a blog article entitled Driving Distracted Should be a Safety Rule Violation. Since that time, this deadly roadway epidemic has only gotten worse. In 2019, distracted driverskilled 3,142 people. This represented a 10% increase from 2018. Although teenagers represent the largest percentage of offenders, it is done by all types and ages. The main offendersconsider themselves good drivers and rationalize that they are only looking away for a few seconds.
April is Distracted Driver Awareness Month. Think about that when you are on the road. No text message is worth an accident resulting in injury or death. Even if you are not distracted, it is important to constantly be aware of all the drivers around you that are.
Be safe out there!
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
West Virginia's New Intermediate Appellate Court Fundamentally Changes
Workers' Compensation Litigation Practice
By Charity Lawrence and Dill Battle
The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021. Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia. It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.
After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR. (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ. The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer. (W. Va. Code § 23-5-8b). Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor. (W. Va. Code § 23-5-11a).
The OOJ will officially terminate on or before October 1, 2022. (W. Va. Code § 23-5-8a). On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ. (W. Va. Code § 23-5-8b(b)). If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR. (W. Va. Code § 23-5-8a). For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision. (W. Va. Code § 23-5-8b(b)). The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022. (W. Va. Code § 23-5-8b(e)).
The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR. (W. Va. Code § 23-5-9a). That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection. (W. Va. Code § 23-5-9a). Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney. (W. Va. Code § 23-5-8a). The chair of the BOR will supervise hearing examiners. (W. Va. Code § 23-5-8a). If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested. (W. Va. Code §23-5-9a). The board member will render a decision with findings of fact and conclusions of law. (W. Va. Code § 23-5-9a).
An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice. (W. Va. Code § 23-5-10a). Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested. (W. Va. Code § 23-5-12a). A filing fee of $200 may be charged to the petitioner. (W. Va. Code § 51-11-7). Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered. (W. Va. Code § 23-5-12a).
The WV Intermediate Court of Appeals will have exclusive jurisdiction of:
· decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and
· final orders or decisions issued by the BOR after June 30, 2022.
(W. Va. Code § 23-1-1h). The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR. (W. Va. Code § 23-5-12a). It may also remand the case for further proceedings. (W. Va. Code § 23-5-12a). A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:
· in violation of statutory provisions;
· in excess of the statutory authority or jurisdiction of the BOR;
· made upon unlawful procedures;
· affected by other error of law;
· clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or
· arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(W. Va. Code § 23-5-12a). An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia. (W. Va. Code § 29A-6-1). The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision. (W. Va. Code § 51-11-10).
The Intermediate Court will be comprised of a three-judge panel. (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate. Then, after the initial appointment by the Governor, the judges will be elected. (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6). The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election. (W. Va. Code § 51-11-3).
This new legislation impacts workers’ compensation in several ways. Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia. New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions. The hearing examiners will also be supervised by the BOR chair. Hopefully, this will prevent the issuance of uneducated decisions. Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals. SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021). The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.
By:
Charity Lawrence
304-720-4056
clawrence@spilmanlaw.com
Dill Battle
304-340-3823
dbattle@spilmanlaw.com
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, E.
Charleston, WV 25301
Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.
When an employee is injured on the employer’s premises, including a parking lot owned and controlled by the employer, it is fundamental that such a claim is work related. If this injury is caused by the actions of another employee, it is also fundamental that the two employees cannot sue each other or their employer in negligence. Given these well-established rules, the published Appellate Division decision in Lapsley v. Township of Sparta, A-0958-19T3, (App. Div. January 29, 2021) is a real head scratcher.
Diane Lapsley worked as a librarian for the Township of Sparta. The library sits within a municipal complex including three common-use parking lots, a baseball field, and the offices of the Sparta Township Board of Education. Petitioner could park in any of the lots. On February 3, 2014 the library closed early on account of weather conditions, and petitioner’s husband came to pick Ms. Lapsley up. Petitioner stepped off the library curb and walked about 18 feet into the lot when a township Public Works employee drove a snowplow into Mr. and Mrs. Lapsley. Petitioner suffered serious injuries and required multiple surgeries.
Ms. Lapsley brought a civil suit alleging negligence against the Township of Sparta and its Department of Public Works. The Township moved to dismiss the suit because the exclusive remedy for an injured worker arising out of work is in the Division of Workers’ Compensation. The case eventually moved to the Division of Workers’ Compensation for a determination of compensability. The Judge of Compensation found that the injury was compensable. The reasons were sound: the Township owned, maintained and controlled the parking lot where the accident occurred.
Petitioner appealed and argued that her injury was not compensable because it did not arise from her employment and because she was not engaged in any task for her employer’s benefit when the injury occurred. The Appellate Division reviewed the relevant law in N.J.S.A. 34:15-36, which states that “employment … shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer ….” This is the provision that the Judge of Compensation properly relied on.
Nonetheless, the Appellate Division reversed the decision of the Judge of Compensation and found that Ms. Lapsley was not within the scope of her employment when she was injured. Even though the Court acknowledged that the Township owned the parking lot next to the library where petitioner was injured, the Court based its decision on certain considerations seemingly never cited before by any other court. The Court said, “It was stipulated that petitioner was off-the-clock at the time of the accident and exited the library premises.” But the Supreme Court decision in Ramos v. M & F Fashions specifically noted that New Jersey has no clock in or clock out rule. Employees often linger at work long past the end of their day and arrive at work long before they may clock in, but nonetheless they are covered for purposes of workers’ compensation once they reach the work premises unless they deviate from employment.
The Court next relied on another principle not found within the New Jersey Workers’ Compensation Act. “Library employees were not given any instructions about where in the subject lot to park or indeed whether to park in that particular lot, on the street, or anywhere else in town where parking may be available. Nor were library staff instructed on the manner of ingress or egress.” To this practitioner’s knowledge, there are no published cases that have ever restricted the premises rule to a need to instruct employees about parking in public lots. This petitioner was on the adjacent parking lot to the building where she worked when she was injured. The Court seems to be saying that since the Township did not require petitioner to park in that particular lot, and she could have parked elsewhere, her injury was not compensable. This seems illogical.
The last point which the Court made was that the lot was shared with other municipal employees and members of the public alike. The Court postulated, “Thus, the stipulated facts established that petitioner’s employer exercised no control of its employee’s use of the subject lot, that control being a critical element of the premises rule’s application.” This comment misses the emphasis in the statute on the words, “excluding areas not under control of the employer.” It is not the employee’s use of the lot that matters but the employer’s control of the lot that the employee is injured on.
This is a reported decision and therefore it must be studied by practitioners and evaluated. What this decision meant is that a badly injured worker was able to get around the exclusive remedy provision in order to sue her employer and make a much greater financial recovery. From the employer standpoint, and public employers in particular, this case would expose employers to extremely costly civil litigation. The exclusive remedy should have been applied here, and the Judge of Compensation was clearly correct.
From the employee standpoint, the case raises a number of alarming questions. Does it mean that New Jersey employees lose workers’ compensation coverage when they “clock out?” The Supreme Court has already stated that clocking in or out is not a precondition for employment coverage. Does it mean that injured workers lose coverage when they are injured on a public lot simply because the public lot is shared by fellow employees and the public? All municipal parking lots are shared by employees and the public. Why would that matter? Does it mean that a public employer is not liable for injuries in its own parking lot if it has not instructed employees on the manner of ingress or egress?
In short, for both employers and injured workers, the Lapsley case is singularly problematic. Its rationale does not square with any prior decisions.
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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.
KENTUCKY UPDATE – NEW LEGISLATION
Kentucky Legislation (House Bill 48) Reimbursement for Pharmaceutical Services, effective 6/28/21
Creates a new section of Subtitle 12 of KRS Chapter 304 to establish certain insurance practices relating to the reimbursement of pharmacists;
Amends KRS 304.14-135 to establish a clean claim form for the reimbursement of certain pharmacist services or procedures;
Amends KRS 304.17A-844 and 304.17B-011 to conform;
Amends KRS 18A.225 to require the state employee health plan to comply with pharmacist reimbursement requirements; and
Amends KRS 342.020 (Workers’ Compensation Statute) to require workers' compensation employers, insurers, and payment obligors to comply with pharmacist reimbursement requirements.
o Section (14) was added to KRS 342.020. Medical treatment.
(14)(a) As used in this subsection, "practice of pharmacy" has the same meaning as in KRS 315.010.
(b) In addition to all other compensation that may be reimbursed to a pharmacist under this chapter, the employer, insurer, or payment obligor shall be liable for the reimbursement of a pharmacist for a service or procedure at a rate not less than that provided to other nonphysician practitioners if the service or procedure:
1. Is within the scope of the practice of pharmacy;
2. Would otherwise be compensable under this chapter if the service or procedure were provided by a:
a. Physician;
b. Advanced practice registered nurse; or
c. Physician assistant; and
3. Is performed by the pharmacist in strict compliance with laws and administrative regulations related to the pharmacist's license.
o KRS 315 is titled Pharmacists and Pharmacies. KRS 315.010 defines “practice of pharmacy” as follows:
"Practice of pharmacy" means interpretation, evaluation, and implementation of medical orders and prescription drug orders; responsibility for dispensing prescription drug orders, including radioactive substances; participation in drug and drug-related device selection; administration of medications or biologics in the course of dispensing or maintaining a prescription drug order; the administration of adult immunizations pursuant to prescriberapproved protocols; the administration of immunizations to individuals nine (9) to seventeen (17) years of age pursuant to prescriber-approved protocols with the consent of a parent or guardian; the administration of immunizations to a child as defined in KRS 214.032, pursuant to protocols as authorized by KRS 315.500; drug evaluation, utilization, or regimen review; maintenance of patient pharmacy records; and provision of patient counseling and those professional acts, professional decisions, or professional services necessary to maintain and manage all areas of a patient's pharmacy-related care, including pharmacy-related primary care as defined in this section;
o Therefore, HB 48 amends KRS 342.020 to require employer/insurers to reimburse pharmacists for services provided if they fall within the scope of the “practice of pharmacy” definition above and would otherwise be compensable if provided by a physician, advanced practice registered nurse, or physician assistant. Also the service must be performed in strict compliance with the laws and administrative regulations related to the pharmacist’s license.
Should you have any questions or wish to discuss any of these matters personally, please contact us at your convenience.
H. Douglas Jones, Esq. djones@jsbattorneys.com
Margo J. Menefee, Esq. mmenefee@jsbattorneys.com
What if two lawyers leave their separate offices to meet at a coffee shop to discuss a case? Is the commute to the coffee shop compensable for either or both of them? The answer was no in the context of the facts in Pilone v. County of Middlesex, A-1676-19, (App. Div. March 15, 2021).
Lynn Pilone, an assistant prosecutor for Middlesex County, arrived at her Bayard Street office in New Brunswick between 8:30 and 9:00 a.m. on March 21, 2017. Later in the day she knew she would be meeting with a victim-witness. Before that meeting she wanted to discuss the case with a colleague, Helen Zanatakos, a fellow assistant prosecutor with years of experience, who worked nearby in a different office. The two decided to meet at 11:00 a.m. at a donut/coffee shop one block away from Pilone’s office.
At the appointed 11:00 a.m. time Pilone left her office and walked to 25 Kirkpatrick Street to meet Zanatakos in front her office, and then the two of them started walking to the donut/coffee shop one block away. On the way, Pilone fell on the sidewalk in front of a parking lot near Kirkpatrick Street and was taken by ambulance to a hospital.
Pilone filed a workers’ compensation claim which the County of Middlesex denied on the ground that the injury did not arise from petitioner’s employment. Trial ensued with Pilone testifying that she was not on a lunch break when she fell. She simply wanted to discuss the case with Zanatakos face-to-face. It was a common practice for her to discuss cases outside the office as the inside offices were often too busy. Her intent was to buy coffee in the shop and then discuss the file, which she thought she carried with her at the time of her fall.
For her part Zanatakos testified that she also planned to discuss the case with Pilone because she was aware the victim-witness was dissatisfied with how her case had proceeded. She intended to provide guidance to Pilone. Sometimes the two of them would discuss personal matters, but this time the discussion was definitely about this particular file.
The Judge of Compensation granted the County’s motion to dismiss the case because petitioner’s fall occurred off work premises. The fall occurred on public property. On appeal petitioner argued that her fall was subject to the “special mission” exception. The Court relied on the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014). That case focused on the “situs of the accident” and “the degree of employer’s control.” The Court pointed out that the County had no control of the public walkway, nor of the coffee shop.
The Appellate Division noted that petitioner had not been directed to work offsite by her employer. “Although N.J.S.A. 34:15-36 extends compensability to duties assigned or directed by the employer, petitioner did not demonstrate that meeting at the donut shop was assigned or directed by the Prosecutor’s Office.” The Court distinguished another well-known case involving a drive to a coffee shop, namely Cooper v. Barnickel Enters, 411 N.J. Super. 343 (App. Div. 2010). In that case the Court noted that petitioner was directed to work away from the primary place of employment while being injured en route to purchase coffee. The Court said that here petitioner could have decided to meet in the office or outside the office, but there was no employer direction to meet at the donut/coffee shop.
The decision makes sense in not extending the special mission exception to a situation where employees decide for themselves (without employer direction) to meet off work premises.
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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.
Lack of Clarity Surrounding Classification of Workers in the “Gig Economy” Drove the West Virginia Legislature to Redefine What Constitutes an Independent Contractor
On March 22, 2021, Senate Bill 272 was passed and Governor Jim Justice signed into law the West Virginia Employment Law Worker Classification Act. The bill will prevent worker misclassification and defines the differences between employees and independent contractors. As expressed in the bill: “Clarity in a worker’s classification allows businesses to comply with applicable laws, provides workers with certainty as to their benefits and obligations, and minimizes unnecessary mistakes, litigation, risk and legal exposure laws concerning workers’ compensation.”
Concerned with the lack of clarity in the legal standards used to differentiate employees from independent contractors, especially in the context of the “so-called ‘gig’, ‘entrepreneurial’, [and] ‘sharing’ economy,” the West Virginia Legislature drafted W. Va. Code §21-5I-1 et seq. to provide an objective method of making that distinction. Additionally, the Legislature wanted to bring cohesion to the definition of independent contractor, as it can be defined differently depending on the law at issue. In bringing cohesion to the law, the Legislature partially succeeded. W. Va. Code §21-5I-4 will only apply “for the purpose of classifying workers” under the workers’ compensation laws in Chapter 23, unemployment compensation in Chapter 21A, the Human Rights Act in §5-11-1 et seq., and wage payment and collection in §21-5-1 et seq., it will not apply in any other area of law.
In order to qualify as an independent contractor, a worker must sign a written contract with the principal that makes it clear that the principal’s intent it to employ them as an independent contractor. The contract must also contain five different acknowledgments for the worker to sign which help make it clear that the intent at the beginning of the relationship was to form a principal-independent contractor relationship. For example, the worker must acknowledge that he or she is providing services as an independent contractor and that he or she will be responsible for all federal and state taxes. The terms of the contract must “substantially comply” with all of the statutory requirements, although the statute does not define what constitutes substantial compliance. Until there is case law on the issue, it will be impossible to determine if a contract containing 80% of the contractual requirements will be considered to be in substantial compliance.
In addition to the contract requirements, the worker must also meet certain criteria. The independent contractor must either file, or be contractually obligated to file, an income tax return for the fees earned from the work in question or the independent contractor must provide their services through some type of business entity, even a sole proprietorship as long as it is registered with a “doing business as.” Further, the independent contractor must “actually and directly control[] the manner and means by which the work is to be accomplished,” which does not require that the contractor control “the final result of the work.” This control does not extend to control necessary to ensure compliance with federal or state laws and regulations. It also does not extend to contractually required measures regarding general safety concerns.
Finally, in addition to the requirements above, persons may either satisfy at least three of the enumerated requirements in W. Va. Code §21-5I-4(a)(4) to be classified as an independent contractor or be considered a direct seller under the Internal Revenue Code §3508(b)(2). The requirements of W. Va. Code §21-5I-4(a)(4), are similar to the test used in other areas of the law to determine whether a worker is an independent contractor. For example, an independent contractor is someone who controls the amount of time they spend providing services, controls where services are being performed, and is free to hire or solicit help. Any combination of three requirements will be enough to satisfy the requirements of W. Va. Code §21-5I-4(a)(4) and no requirement holds more weight than the others do.
In conclusion, in order to be classified as an independent contractor the contract between the contractor and the principal must satisfy the writing requirements of W. Va. Code §21-5I-4(a)(1). From there the contractor must either be required to file income taxes for the fees earned or do business through some business entity and must control how the work is to be performed. Finally, the contractor must either meet three of the requirements of subsection W. Va. Code §21-5I-4(a)(4) or be considered a direct seller under IRC §3508(b)(2). If the contractor does not meet these requirements, the classification test set forth in Internal Revenue Service Revenue Ruling 87-41 will determine whether the person is an independent contractor.
By:
Dill Battle
304-340-3823
dbattle@spilmanlaw.com
Kellen M. Shearin
304.340.3892
kshearin@spilmanlaw.com
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, E.
Charleston, WV 25301
Written by: Tracey Jones
In the course of handling a workers’ compensation case, an adjuster will have to communicate with the employee’s treating physician to collect valuable medical information relevant to the diagnosis and ability to return to work. As noted in N.C.G.S § 97-25.6(c)(2), Written Communications with Healthcare Providers:
Defendants may communicate with the Plaintiff’s authorized health care provider in writing, without the express authorization of Plaintiff, to obtain certain relevant medical information not available in Plaintiff’s medical records, provided Defendants provide Plaintiff with contemporaneous written notice.
Without express authorization by the employee, but with contemporaneous written notice – Defendants may request the following additional information not available in the employee’s medical records:
Defendants must provide Plaintiff a copy of the healthcare provider’s response within ten business days of receipt.
When communicating with healthcare providers, NC adjusters and Defendants can use the following examples as a guide:
It is critical to keep in mind that all correspondence with the treating physician must be shared with the employee. All correspondence must occur with an authorized healthcare provider.
Written By: Elizabeth Ligon
The day is finally here and your case is settled. But is it really over? Let’s go over some key issues in regards to mutual consent in settlement agreements and make sure.
First things first, a settlement agreement is a contract, to be interpreted and tested by established rules relating to contracts. A valid contract exists only where there has been a “meeting of the minds” as to all the essential terms of the agreement. Material terms generally means anything essential to the bargain, such as amount of settlement. The fact that a few secondary issues remain to be resolved will not defeat enforcement. If a court finds the material terms of a contract are overly vague or not definitive enough to provide a basis for mutual consent, it will not enforce the agreement.
Often times a court will find no mutual consent where a settlement agreement includes a provision that a release will be drafted later. Disagreements as to the terms of the release have caused many settlement agreements to fail. Similarly, where parties provide in the settlement agreement that the release to be delivered later is to be “mutually agreeable to both parties”, courts have refused enforcement of the entire agreement because there was no meeting of the minds on that material term.
Keeping that in mind, North Carolina courts will not recognize lack of mutual consent when a party claims that it had not signed the agreement, and that the signature of his attorney was not authorized. North Carolina courts presume that an attorney acts under the authority and in favor of the client, even in settlement circumstances. One who challenges the actions of his attorney has the burden of rebutting the presumption and proving lack of authority.
Ensuring that mutual consent occurs and that all settlement terms are well documented is critical, but that is only part of the settlement agreement process.