Workers’ compensation claims professionals know how important it is to ask about prior injuries in workers’ compensation.  That information can bear directly on causation and will often lead to credits at the time of settlement. But an underrated area of investigation remains subsequent injuries that take place after the date of the workers’ compensation injury but before the workers’ compensation case actually settles.

Consider a case involving a work-related back injury.  The parties have each obtained their IMEs but before settlement occurs, the adjuster runs an ISO report. That report reflects a recent motor vehicle accident involving the low back.  This non-work injury is significant enough to lead to orthopedic treatment and a law suit for personal injuries against the other driver.  How does this information impact settlement negotiations?

Petitioner’s counsel might argue that it doesn’t really matter because counsel already has an IME estimating 45% permanent partial disability for an unoperated herniated disc and respondent’s counsel has an estimate of 5% permanent partial disability.  Respondent’s counsel will maintain that this information is of great importance to consider.  To get maximum impact from the new accident defense counsel must obtain all treating records from the subsequent car accident.  Let us assume in this hypothetical situation that these new records show treatment at the same level of the spine with a recommendation for future surgery.  This could be a game changer and may lead to several results:

1.      A section 20 settlement for considerably less money than had been anticipated on an Order Approving Settlement;

2.      An order approving settlement for a lower percentage with a statement that the overall disability is now greater, providing insulation from any reopener; or,

3.      Perhaps even a trial if the client insists on a dismissal of the case.

The argument that defense counsel has in its favor is that an award of permanent partial disability is based on present complaints, not on complaints given in the past to IME doctors.   That is the rule from Allen v. Ebon, which established that awards of permanent partial disability should be based on recent medical evaluations, not stale ones.  New exams may have to be ordered.  When it comes time to negotiate settlement, defense counsel can argue that the petitioner’s current complaints must inevitably relate to the subsequent injury.  The Judge of Compensation will ultimately have to decide whether the current complaints and permanent impairment reflect in part the prior work injury or mainly the new car accident.  In this hypothetical one thing is for sure: the new accident completely alters the negotiations and must lower the value of the case where the new injury is to the same body part as the original work injury.

This scenario often occurs in reopener cases.  Defense counsel will request answers to reopener interrogatories, and sometimes the answers to interrogatories contain information about a new, non-work injury to the same part of the body that was injured in the work accident. If the original injury was to the neck, and now petitioner admits to a new injury to the neck with a new MRI, what does respondent do?  The best argument, of course, should be for dismissal of the reopener.

As mentioned above, step one is to obtain all the new treating records, including any new MRIs, CT scans and x-rays.  Step two to send the records to the IME physicians for an opinion on whether the current diagnosis and complaints are causally related to the subsequent accident.  If there is evidence that the medical condition at issue has been worsened by the subsequent accident, defense counsel should have a very strong argument for a dismissal of the reopener petition.  Counsel for petitioner will try to argue that the condition was getting worse before the new accident occurred.  But that seldom makes logical sense.  Consider a motorist who got a crack in her car windshield from a fender bender caused by another driver.  Then one month later the motorist gets into another car accident caused by the negligence of some other driver, this time knocking out the entire windshield.  Would anyone seriously expect the insurance company from the first fender bender to pay for part of the windshield repair?  Of course not. The insurance company for the second accident would have to pay for the entire repair. 

The lesson is that workers’ compensation professionals need to put systems in place to make sure that a new ISO is run every six months or so during the progression of the case to see if there are new non-work injuries.  An ISO doesn’t cost much and it can lead to enormous savings.  The ISO may not be the only way to discover this information.  Sometimes the treating records, particularly PT notes, may make mention of a new injury; and sometimes the employer is aware of the new injury and communicates this information to the carrier or third party administrator. On occasion a petitioner’s own Facebook page may reveal a new injury.   No matter what, when testimony is taken at the time of settlement in support of any award, defense counsel must always ask the injured worker whether he or she has had any new accidents with additional treatment since the time of the accident or initial award.

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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

On August 12, 2020, the Minnesota Supreme Court affirmed the Decision of the Minnesota Worker’s Compensation Court of Appeals dismissing the Petition for Payment of Medical Expenses filed by a medical provider, Keith Johnson, D.C.

The chiropractor was properly placed on notice of right to intervene pursuant to Minn. Stat. § 176.361 and chose not to file a Motion to Intervene, which would have made the provider a party to the claim. The Employee ultimately settled his claim with the Employer and Insurer and those providers which had intervened were included in the settlement. The Award extinguished the right of the chiropractor to recover payments pursuant to the statute and Minn. Rule 1420.1850.

Eight months after the Award was filed, the chiropractor filed a Petition for Payment of Medical Expenses. The Employee and the Employer and Insurer filed Motions to Dismiss and the compensation judge dismissed the Petition with prejudice, concluding that the chiropractor did not have standing to file such a Petition because there was no outstanding claim by the Employee. The chiropractor appealed to the Workers’ Compensation Court of Appeals, arguing: 1) the Award was unenforceable and invalid as his rights were extinguished on the basis he chose not to intervene; 2) the rule and statute relied upon by the compensation judge and Office of Administrative Hearings exceeded the express or implied authority granted by the legislature; and 3) he was entitled to full payment per case law as he was excluded from settlement negotiations.

The WCCA affirmed the Order dismissing the Petition, finding that the medical provider chose not to be a party to the case and avail himself of the remedies provided by statute when he chose not to intervene. Because he was not a party to the case, he had no authority or standing to bring a claim under Minn. Stat. § 176.291 or assert the Award collaterally. Due to the lack of standing, the WCCA did not address other arguments by the chiropractor.

The chiropractor appealed the WCCA’s decision to the Minnesota Supreme Court. Michael Johnson represented the Employer and Insurer at oral argument before the Supreme Court en banc on June 2, 2020.

The Minnesota Supreme Court affirmed the WCCA decision in its entirety, finding that a health care provider who voluntarily declines to intervene in a pending workers’ compensation proceeding after receiving timely and adequate notice of the right to intervene cannot initiate a collateral attack on the compensation award under Minn. Stat. 176.271, .291, or Minn. R. 1420.1850, subp. 3B.

The case affirms that under Minn. Stat. § 176.361, Subd. 2(a) and Minn. Rule 1420.1850, a potential intervenor who is properly provided notice of right to intervene and does not file a Motion to Intervene within 60 days of notice shall have their right to recover extinguished.

CWK attorneys Natalie K. Lund and Michael R. Johnson handled the case on behalf of the Employer and Insurer. Please contact either of them with any questions. Natalie can be reached at (952) 525-6951. Mike can be reached at (952) 525-6950

http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA200053-081220.pdf

On August 14, 2020 the Alabama Supreme Court issued Administrative Order No. 8 which extended its previous orders concerning workers’ compensation and taking witness testimony remotely during the pandemic.  This means that the following rules will be in effect through December 31, 2020:

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.
2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in a court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

In addition to the above, the rules that provide for remotely swearing in and taking witness testimony are also extended through the end of the year.

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.

Minnesota's Cousineau, Waldhauser, & Kieselbach honored by Best Law Firms and Best Lawyers in America

There is a fairly widespread belief that any injury that occurs at work must be covered under workers’ compensation.  But that is not true.  There are several categories of injuries that happen at work which simply are not compensable.  Injuries which do not arise out of employment are not covered in workers’ compensation.  Not only must an injury occur during work, but it must arise out of work. In every state there are a number of useful doctrines that help explain and expand on the definition of “not arising out of employment” for traumatic injuries.

*  Idiopathic Claims and Personal Risk Claims

These two doctrines are very similar.  The concept of idiopathic applies when the employee has a preexisting medical condition which is the true cause of the injury.  For example, an employee with severe osteoarthritis is walking down the corridor at work when his knee locks, without striking anything or falling.  The doctor examines and advises that further knee damage was caused by the act of walking on account of severe osteoarthritis. This is a classic idiopathic claim because the injury was entirely personal to the employee, not caused by work. 

Consider also an employee with prior shoulder dislocation issues who puts on her coat to go home after work and experiences a new dislocation of her shoulder. Although this happened at work, it was not caused by work.  All the petitioner was doing is something that we do when we leave work on a cold day:  namely we put on our coats.  The dislocation of the shoulder would be considered idiopathic and unconnected to the activities of work.  

The personal risk doctrine is very similar to the idiopathic claim doctrine but it better fits a situation where there is no prior medical condition.  One of the best cases for this doctrine is Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986).  The petitioner got a permanent wave solution in her hair, and the next day at work, she lit a cigarette prompting her hair to burst into flames and resulting in burns. The Supreme Court found this injury not compensable because the risk was personal to the employee due to her permanent wave solution, and the connection to work was negligible.

*  Deviation from Employment

This doctrine has two major applications.  The first applies to an activity that is either unconnected to work or so far afield that a reasonable person would never do it.  For example, a lawyer is outside his office and calls a colleague on his cell phone who is working at his desk, asking the colleague to come outside and help carry work files into the office. The colleague decides not to walk down the steps or take the elevator but instead opens his window and jumps 20 feet to the ground breaking his leg. This activity of jumping from one’s window is so hazardous that no reasonable person would do it.  The injury clearly happened during work but it would be a deviation from employment.  An employer should not have to insure against inherently dangerous activities that no reasonable person would undertake.

Similarly, in Money v. Coin Depot Corp., 299 N.J. Super. 434 (App. Div.), certif. denied, 151 N.J. 171 (1997), the petitioner was an armored truck security guard who began playing Russian Roulette with his gun while he and his colleagues were transporting money.  The gun discharged and killed the petitioner. The court found that this activity was a major deviation from employment because it was so inherently dangerous.

The second type of deviation from employment is found in connection with travel that is unconnected to work.  The leading case is Jumpp v. City of Ventnor, 351 N.J. Super. 44 (App. Div. 2002), aff’d, 177 N.J. 470 (2003).  In that case the petitioner worked as a pumping station operator, driving throughout the city.  He got permission from his supervisor to stop and get his mail in the morning as he was driving along the main road in town to the next pumping station.  He fell and fractured his pelvis returning to his municipal vehicle parked in the post office lot after getting his mail.  The court considered petitioner’s injury to be a major deviation because the activity of getting his own mail, even it if it was permitted, had no connection to his work.

*  Intentional Self Injury

Employees who deliberately injure themselves will almost always be denied compensation.  If an angry employee punches a wall in an argument at work and breaks her hand, that injury would not be compensable because the action of punching a wall is highly likely to cause self injury.  In the same way, if Employee A assaults employee B and Employee A is injured in that process, courts will almost always find this to be self-inflicted and not compensable.  The injury to Employee B, of course, would be covered as the victim of an assault.

*  Recreational Activities

Suppose an employee decides during a break in the morning to pull out some rope, moves away from his desk, and begins to jump rope for a few minutes, only to get her foot tangled up in the rope leading to an injury.  Would this be covered in workers’ compensation?  It did happen at work, right?  Under New Jersey law this would not be compensable because recreational activities that just promote the health of the employee are not covered.  For a recreational activity to be covered it must create a benefit to the employer greater than health and morale and must be a regular incident of employment.  Few recreational activities can meet this test of promoting a benefit to the employer greater than health and morale.  The same is true of social activities.

However, if two employees are fooling around at work and kidding each other, and then one throws a pencil at the other as a joke, but the pencil strikes the other employee in the eye, the judge will probably view this activity as horseplay  – – not a recreational activity.  Unlike the law in many states, horseplay is NOT a defense in New Jersey.  Horseplay is always compensable as to the victim and sometimes compensable as to the instigator. There is a line between horseplay and assaults/altercations, and outcomes may differ depending on whether that line is crossed.

There are certainly other doctrines that overlap some of the above examples. There are a few cases which discuss the doctrine of “abandonment of employment.” In my view that doctrine is really synonymous with deviation from employment.  The differences are subtle.  One can say safely say that when a  traumatic claim is denied for an activity which occurred at work, one of the above doctrines will constitute the legal basis for the denial under the broad heading of not arising from the employment.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

By: Brenna Hampton (Office Managing Partner - San Diego), Kelsey Paddock (Partner - San Francisco), Richard Berryhill (Attorney - San Francisco), Bill Davis (Attorney - Santa Rosa)

California has a long history of legislation and case law dealing with AOE/COE presumptions, the newest of which is the Governor’s Executive Order N-62-20 (the COVID-19 Presumption), which established a rebuttable presumption in favor of finding that COVID-19was contracted in the workplace. While this presumption is rebuttable, there is not yet any case law addressing how this presumption can be rebutted. Nevertheless, we know from experience that there are defenses to rebuttable presumptions, such as those based upon the latency period of the disease. Some of these defenses may have significant relevance to the defense of COVID-19 cases.

The Executive Order 5/06/2020: “The COVID-19 Presumption”

The COVID-19 Presumption extends a temporary, rebuttable presumption of AOE/COE for employees who worked on their employer’s premises at the direction of the employer between March 19, 2020 and July 5, 2020. The presumption shifts the burden to employers to show that it was more likely the employee sustained COVID-19 outside of work, otherwise the employer is liable for COVID-19 related indemnity and medical treatment.

As the medical community develops a better understanding of COVID-19, the workers’ compensation community will be sorting out how to apply existing legal principles, and perhaps creating a few new ones. Until there is specific case law addressing this new legislation, parties will need to argue by analogy to existing cases regarding other presumptions. There is good reason to believe that the legal principals in those cases will govern and be applied regarding whether the COVID-19 presumption has been rebutted.

Rebuttable Presumptions – The Blais Decision

There is a general notion that rebuttable presumptions (like some of those found in Labor Code section 3212) cannot ever be defeated.  However, as with the COVID-19 Presumption, the defense community must be prepared to develop and litigate the appropriate evidence.  While rebutting the presumption may not be easy, and may not always be successful, it is certainly worth the fight where the circumstances support a valid defense.

The Board issued a panel decision in one such case on May 13, 2020 in Robert Blais, Jr. v. State of California (PSI) (“Blais”)ADJ10840422, 2020 Cal. Wrk. Comp. P.D. LEXIS ____.  In this decision, the Board found the defendant rebutted the seemingly insurmountable cancer presumption inLabor Code Section 3212.1 through the reporting and deposition testimony of the panel qualified medical evaluator (PQME).  What can the defense community learn from this case to use in its defense of the COVID-19 cases? As it turns out, quite a bit.

Blais involves a safety officer cancer presumption in which the officer had a pre-existing cancer award with a prior employer, but the cancer manifested during the defendant’s employment and is subject to anti-attribution clause of Labor Code section 4663(e) if held to be presumptive.  The case hinged on medical evidence from the PQME, who found on a medical basis that the cancer should not be attributed to the current employer.

The Blais decision noted that the defendant successfully rebutted the cancer presumption through PQME reports and testimony because this evidence demonstrated there was no reasonable link between the exposure to the claimed carcinogen and the cancer. One factor the Board relied upon in reaching its decision was the latency period between exposure and manifestation. As the Board explained, if the medical evidence shows that the latency period is long enough to preclude exposure at the employer’s workplace, then there is no reasonable link between the cancer and the industrial exposure. InBlais, the presumption was held to be rebutted on medical grounds, which may have interesting implications in our post-COVID-19 environment, particularly if the Legislature were to adopt (as it appears) a permanent rebuttable presumption. (Note: the current Executive Order extends through 7/05/2020).

The medical evidence was key in the Blais verdict for the defense in finding that the current employer was not responsible for the employee’s cancer, despite the presumption. TheBlais decision also held that rebuttal of the presumption does not require showing the absence of a possible link between the cancer and the industrial exposure, but thatdefendant should show that such a link was not reasonable. There is a crucial distinction between proving there is no reasonable link versus showing clearly that there is no link to exposure in the workplace at all. But what does it mean for there to be “no reasonable link” in these cases? As the Blais court explained in quotingGarcia: “A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link.” (Id., at p. 316, citingCity of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298.)

Thus, while courts will no doubt hold defendants to as strict a standard as possible,Blais and Garcia show that it may be possible to rebut a presumption by showing there is no reasonable link without necessarily having to prove that the exposure happened only outside of the workplace.

Analyzing COVID-19 cases in light of Blais and Garcia

In finding for Defendant in the Blais case, the Board looked to prior cases includingCity of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298.  In theGarcia case, the Court of Appeal set up two alternative standards under which a cancer presumption can be rebutted:

1. It could be demonstrated that it is highly unlikely that the cancer was industrially caused becausethe period between the exposure and the manifestation of the cancer is not within the cancer’s latency period;or

1. The nature of the manifestation, or other medical evidence, may be sufficient to show thelack of connection. (Id., p. 317)

As applied to COVID-19, either standard would require development of the medical evidence. In the first case, latency, the evidence must show when COVID-19 manifested and provide a reasonable chronological history to identify the latency period based on current scientific understandings of COVID-19.  This would show that the injured worker’s exposure to COVID-19 could not have occurred while at work because exposure was either too soon or too late compared to when they worked.  In the second case, lack of connection, a more traditional AOE/COE medical opinion is required to demonstrate that the COVID-19 exposure, diagnosis, and manifestation are not reasonably connected to work.

First – Does the COVID-19 Presumption Apply?

To argue for the applicability of other presumption cases, the wise practitioner must first discern whether the COVID-19 Presumption applies because this will determine whether the injured worker or defendant carries the burden of proof.  Remember, the COVID-19 Presumption creates a temporary, rebuttable presumption of industrial injury for employees who claim to have contracted COVID-19 at work between 3/19/2020 and 7/5/2020.  The presumption itself became effective 5/06/2020, but applies to dates of injury as early as 3/19/2020.

For the COVID-19 Presumption to apply, the employee must meet all four of the following factors:

1. A positive test or diagnosis within 14 days after the employee performed labor or services at their place of employment.
2. The labor or services were performed after 3/19/20.
3. The location where the labor or services were performed was not also the employee’s home or residence.
4. If the presumption was based on a diagnosis (as opposed to a positive test), the diagnosis must have been done by a physician who holds a physician and surgeon license issued by the California Medical Board, and confirmed by further testing within 30 days of the diagnosis.

If the defendant can demonstrate that any of the above four factors do not apply, then they might prove that the presumption does not apply and the employee retains the burden of proof to demonstrate industrial causation.

Second – Once It is Determined That Defendant Has the Burden of Proof,Identify Evidence to Rebut the Presumption.

Once it has been determined that all four factors have been met, the COVID-19 Presumption applies and the burden shifts to the defendant to rebut it. Defendant could look to presumption cases likeBlais and Garcia for a defense.  Applying the defenses below will require a detailed factual inquiry and consultation with a workers’ compensation attorney is highly recommended before denying any such cases.

Employees may argue that COVID-19 does not have an established latency period, but the defense can argue by analogy that the incubation or “pre-symptomatic” period should be used, similar to those used to establish latency period in cancer claims. The “incubation period” is the time between exposure to the virus (becoming infected) and symptom onset.

Note: Medical evidence may support a shorter latency period of 5-11.5 days, but the executive order states 14 days so that will be the legal standard unless rebutted by competent medical evidence in a particular case. According to the World Health Organization (WHO), the incubation period for COVID-19, is on average 5-6 days, however can be up to 14 days.[1]  According to the American College of Cardiology, the median incubation period from infection with COVID-19 to onset of symptoms is approximately 5 days and 97.5% of people infected with COVID-19 will exhibit symptoms by 11.5 days.[2]

Time of Exposure at Work Was Not Within the Latency Period (Too Soon or Too Late)

One way to defend a COVID-19 presumption would be to demonstrate that it is highly unlikely that the employee’s COVID-19 was industrially caused because the period between the claimed exposure and the manifestation of the COVID-19 (symptoms or positive test or diagnosis) is not within the known “latency period.” This defense requires the defendant to (A) obtain medical evidence of the COVID-19 latency period and then (B) show that the period during which the employee worked was not within a reasonable latency period.

The employee’s symptoms manifested too soon before any work exposure: “Too early.”

An employer could alternatively seek evidence that the employee was displaying COVID-19 symptoms or was exposed to / lived with a COVID-19 positive individual 5 – 11.5 days (even up to 14 days) before their alleged workplace exposure.  The argument would be that they were still in the incubation or pre-symptomatic period when they were allegedly exposed at work, while the testing merely happened after being at work.  Again, the defendant’s position would be that there was no workplace “injury” because the exposure occurred somewhere other than at work. Medical and factual evidence supporting this defense needs to be developed through timely investigation and diligent pursuit of a medical opinion based on that investigation.

Even if the employee was back to work for up to 5 days before demonstrating symptoms, a medical opinion should be developed to show that COVID-19 takes at least 5 days to manifest, meaning the symptoms are the result of exposure before the employee started working. The argument would be that the period between the exposure and the manifestation of COVID-19 is not within COVID-19’s incubation or “pre-symptomatic” period.  Given this, the onset of symptoms (aka manifestation) was too soon following any potential work-related exposure.  In short, the injury (the exposure) occurred prior to coming to work. A medical opinion confirming the period between the exposure and the manifestation would likely be required. It would also be helpful to establish that the employee was not exposed to any known COVID-19 cases while working and that no other employee was positive at that time.

Let’s apply this defense to a hypothetical case. Employee Isabel had her first symptoms of COVID-19 on May 10, 2020.  The employer records show she worked from May 8, 2020 through May 10, 2020.  She was sent home immediately when the symptoms started, having worked a total of three days on May 8th, May 9th, and May 10th.  If the defendant proves her symptoms manifested on May 10th, and obtains medical evidence that the reasonable latency / incubation is at least 5 days, the defendant may be able to rebut the presumption because Isabel’s work from May 8-10 was too close in time to her symptoms starting.

In sum, if medical evidence showed that Isabel had not worked after April 26th (i.e.: during the fourteen day period before symptoms started) and that the latency period is at most 14 days, then the defendant could argue that the presumption should not apply because, from a medical perspective, she must have been exposed before working for this employer.

The employee’s symptoms manifested too long after any work exposure, i.e.: “Too late.”

An employer could seek to rebut the COVID-19 Presumption by developing factual evidence that the employee did not become symptomatic or receive a positive test / diagnosis within 14 days after last performing labor or services for the employer and thus the exposure is outside the normal incubation or asymptomatic period.

Let’s apply this defense to our hypothetical case: employee Isabel had her first symptoms of COVID-19 on May 10, 2020.  However, this time factual investigation at the employer level demonstrates Isabel had not worked for this employer for some time, as her employment there ended April 15th, far more than 14 days before her symptoms arose. On these facts, it is more likely the defendant will be able to obtain a medical opinion that her COVID-19 was not related to her work that ended April 15th because the symptoms arose too late in relation to any alleged work exposure and are thus outside of the latency period.

Notably, if the defense tries to argue lack of industrial exposure when the employee last worked less than 14 days after the development of symptoms, this argument might be a tougher sell given that the COVID-19 Presumption allows for positive testing / diagnosis within 14 days and the WHO currently allows for up to 14 days. However, the law is still catching up to the science in this unprecedented pandemic. Further scientific refinement of the incubation period may allow employers to make this argument, so close calls should be carefully documented and considered.

Lack of Connection to the Workplace

An alternative defense is to prove exposure occurred outside of the workplace.  As noted by the court inBlais and Garcia “A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link.”  This might allow the COVID-19 presumption to be rebutted without clearly establishing causation elsewhere.

The argument in any of the latency scenarios above is that the workplace was not the source of the exposure, but the affirmative defenses asserted in Labor Code sections 3600(a)(2) [injury did not arise out of nor in the course of work] and 3600(a)(3) [injury not proximately caused by work] are implicated, should be plead in an Answer, and remain the defendant’s burden to prove.

If the presumption is applicable, it is not sufficient to merely assert that the employer does not believe it to be work-related. The substantial evidence standard applies to evidence submitted by either party.

Strategic discovery should be undertaken to prove there is no reasonable link to work-related activities. An employer who could develop the evidence to show a link of COVID-19 to the workplace is not reasonable would have an even stronger case if they could additionally demonstrate a more likely link between COVID-19 in a particular employee and a non-work-related source. PerGarcia, the nature of this manifestation may also “be sufficient to show the lack of a connection” to a workplace exposure.  This is particularly true if there are no other known cases at the workplace and evidence could point towards outside exposure. Thus, the inquiry is both factual and medical in nature.

Conclusion

While it is relatively easy for an applicant to claim the benefits of the presumption in Executive Order N-62-20, there are several key factors that we can take away from theBlais panel decision and its predecessor, Garcia. Do not think rebutting the COVID-19 presumption is an insurmountable task. Defendants can and do rebut AOE\COE presumptions, as the panel decision inBlais illustrates.  There is no reason that COVID-19 presumption cannot be rebutted as well.  Analogizing to standards established in earlier presumption cases is a good place to start. The next step is working strategically to develop factual and medical evidence to support the development of appropriate case law to serve as precedent in COVID-19 presumption cases for the workers’ compensation community moving forward.

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[1]WHO Coronavirus disease 2019 (COVID-19), Situation Report – 73, April 2, 2020

https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4#:~:text=The%20incubation%20period%20for%20COVID,occur%20before%20symptom%20onset.

[2]American College of Cardiology, Estimated Incubation Period of COVID 19, 5/11/2020

https://www.acc.org/latest-in-cardiology/journal-scans/2020/05/11/15/18/the-incubation-period-of-coronavirus-disease

KY SUPREME COURT EXPANDS OFFSET FOR PRE-EXISTING CONDITIONS Wetherby v. Amazon.com, 580 S.W.3d 521 (Ky. 2019)

H. Douglas Jones, Esq. and Margaret Menefee, Esq., Jones Howard Law, PLLC

The Supreme Court of Kentucky has rendered a significant decision regarding the ability to claim a permanent partial disability offset for a pre-existing condition.

In Kentucky, historically, pre-existing conditions were put in one of two categories: 1) pre-existing dormant condition aroused into a disabling reality by the current injury; or 2) pre-existing active condition. In the seminal case,Finley v. DBM Technologies, 217 S.W.3d 261 (Ky.App 2007), the Court held that a pre-existing active condition (subject to an offset) must be impairment ratable pursuant to the AMAGuides, 5^th Edition (“Guides”), and symptomatic immediately prior to the work injury. This standard made it very difficult to obtain an offset for most pre-existing conditions.

Finally, the Supreme Court in Wetherby rendered a decision finding that because Kentucky uses theGuides as a basis for permanent partial disability awards, it cannot ignore a pre-existing impairment and ratable condition simply because it did not meet the pre-existing active standard set forth inFinley.

Background

In 2012 while working at Amazon, Wetherby experienced pain and numbness in his neck and right arm after moving heavy boxes from a pallet to a conveyor belt. Wetherby underwent cervical surgery in 2014. Wetherby remained symptomatic following the 2014 surgery. Due to a 1980 injury, Wetherby previously underwent cervical fusions in 1980 and 1985.

It was undisputed that Wetherby was asymptomatic after the 1985 surgery, until the 2012 work injury. However, every physician who examined Wetherby acknowledged he had a pre-existing impairment pursuant to theGuides due to the earlier 1980 injury and related surgeries.

The Administrative Law Judge (ALJ) found that Wetherby had a total impairment rating of 31%. Determining that Wetherby had a 25% pre-existing cervical impairment (offset) due to his prior injury and associated surgeries, the ALJ awarded Wetherby a 6% impairment due to his 2012 Amazon injury.

Holding in Wetherby

Appealing to the Supreme Court of Kentucky, Wetherby maintained the ALJ improperly deducted a pre-existing active condition. Rejecting this argument, the Court analyzed language in theGuides regarding deductions for pre-existing conditions in the assessment of permanent impairment for spinal injuries.  The Court determined the 25% pre-existing impairment offset made by the ALJ did not constitute a “carve out” for a pre-existing active condition pursuant to Finley but, instead, was required by the Guides. The Court concluded the ALJ properly excluded the 25% impairment related to Wetherby’s two prior surgeries.

Ultimately, the Court found that Wetherby’s case did not fall within the confines ofFinley because the pre-existing condition was neither dormant nor active. The Court held that in order to be classified as dormant, all of the employee’s permanent impairment must have arisen after the current work injury. Wetherby’s prior condition was not dormant because the physicians assessed a pre-existing impairment rating under theGuides. It also was not active as Wetherby was not symptomatic immediately prior to the work injury. Therefore, the ALJ’s failure to perform an analysis underFinley was not in error.

Conclusion

This is a major “victory” for Kentucky employers. For the first time employers have an argument for a pre-existing impairment offset without having to prove a pre-existing “active” condition pursuant toFinley, i.e., a condition symptomatic immediately prior to an injury.

Employers and workers’ compensation professionals are very familiar with reopener petitions or applications for modification of awards.  A reopener may be filed by the petitioner within two years of the last payment of indemnity benefits or the last authorized treatment date, but not many workers’ compensation professionals realize that employers can also apply for modification of awards.  The pertinent statute, which is N.J.S.A. 34:15-27, allows both employees and employers to file such applications for modification.

When would a respondent move to reopen an award? Suppose the petitioner receives an award of 100% permanent and total disability benefits for physical injuries asserting that he or she can never work again.  Six months after the award is entered, respondent becomes aware that the petitioner is in fact working in a very physical job and can document this fact.  What can the employer do?  The proper step would be to file an application to modify the award, suspend benefits altogether, and pursue any other remedies such as a potential finding of fraud.  That is why Section 27 is so important.  An employer cannot simply stop making payments when there is a court order to do so.  The remedy is to reopen the prior award under Section 27 and file a motion for specific relief.

Consider also a situation where an injured employee receives a very large partial permanent disability award, perhaps 60% paid over 360 weeks.  The large award was influenced by testimony at trial that the injured employee was not able to return to work.  Subsequent investigation reveals that the injured employee has returned to a physical job with even higher wages than at the time of the accident.  Just because the prior award was not for total and permanent disability benefits does not mean that the employer cannot move to modify the award of 60% to a lower percentage.  It is important for workers’ compensation professionals to understand that reopeners can work both ways:  the percentage of award can rise or it can fall.

Lastly, consider a case where the reason for the relatively high award is that the judge is concerned with the employee’s need for ongoing narcotics to reduce pain.  From the date of the accident to the date of the award the employee has been taking prescription narcotics for pain, and the award provides for ongoing use of prescription opioids.  Thereafter respondent’s pain medicine physician does testing noting that the injured worker is not even taking opioids.  The urine tests show no evidence of any narcotics in the petitioner’s system, and the petitioner advises that he or she feels much better and does not need the narcotics any longer.  This would also be an appropriate case to file a modification downward of the prior award.

So Section 27 modifications are premised on this equitable concept:  when the claimant’s condition has worsened, he or she can apply for a higher award; when the condition has improved, the employer can apply for a lower award.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.