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.
Alabama State Representative Wes Kitchens (R-Arab) recently introduced House Bill 77, which would require employers and state agencies to use the guidelines specified by the Internal Revenue Service in order to determine whether a worker is an “employee” or an “independent contractor” for the purposes of employment benefits and tax liabilities. HB-77 would specifically require the use of the IRS’s guidelines when determining eligibility for workers’ compensation benefits.
Under current Alabama law, an employee seeking workers’ compensation benefits must prove the existence of contract for hire (either express or implied). Under current Alabama law, the worker may be considered an employee if the person to whom he provides services has reserved the right to control the manner in which those services are performed. Griffith v. Adams, 674 So.2d 556 (Ala.Civ.App. 1995). The Alabama Courts have recognized that a reserved right of control can be inferred from a test which considers four basic factors: (1) direct evidence which demonstrates a right or exercise of control; (2) the method by which the individual receives payment for his or her services; (3) whether equipment is furnished; and (4) whether the individual has the right to terminate the relationship at any time. See, Wheeler v. Wright, 668 So 2d 779 (Ala.Civ.App. 1995); Martin v. Lawrence County, 628 So.2d 652 (Ala.Civ.App. 1993);Miller v. Mayfield Timber Co., 624 So.2d 185 (Ala.Civ.App. 1993); Lacey v. American Shell Co.,Inc., 628 So.2d 684 (Ala.Civ.App. 1993); Ex parte Curry, 607 So.2d 230 (Ala. 1992). However, if HB-77 is passed and signed into law, it would significantly expand the definition of “employee” for purposes of workers’ compensation benefits. Alabama courts would also have to consider many other factors, including: whether the worker must follow instructions; whether training was provided; whether the worker’s services were rendered personally; whether the worker hires, supervises, or pays assistants; the duration of the relationship; whether the work is performed on the premises of the firm paying the worker; the frequency of payment for the work; and whether the worker must provide regular reports.
The full text of HB-77 can be found here. The IRS guidelines can be found here. We will monitor the status of HB-77 as it makes its way through the Legislature, and will provide updates on this blog.
ABOUT THE AUTHOR
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related matters, as well as matters involving OSHA and FMCSA compliance. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims. Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?
The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker. For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low. The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree. This test is hard to meet because it is next to impossible to identify the source of the virus. Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations. For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact. It would almost always be pure speculation where the exposure occurred.
Public safety workers, on the other hand, will have a strong argument for compensability. The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers. That law became effective in New Jersey on July 8, 2019. This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.” Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.
N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .” There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.
N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence. The language does not say definite or proven exposure but rather “potential” exposure. Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.
These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute. Having a presumption of compensability is powerful. When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related. Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures. The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related. So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.
The statute drives this point home: “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”
The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States. If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment. While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms. Sadly, a small percentage of deaths is related to the coronavirus. It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.
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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.
Alabama’s Workers’ Compensation Act has an exclusivity provision that shields employers from tort claims resulting from injuries, or death, caused by an accident or occupational disease that is related to workers’ employment. This is a fundamental principle of the Act, which is premised on employers’ accepting a duty to provide certain benefits and coverage to employees in exchange for employees being barred from asserting tort claims, like negligence or wantonness.
On February 28, 2020, the Supreme Court of Alabama released its decision in the case ofEx parte Drury Hotels Company, LLC, Montgomery Circuit Court, CV-18-902336, in which the Court confirmed the burden of proof an employer must meet to prevail on a Motion to Dismiss that asserts the employee cannot prevail on a tort claim because the injury alleged is covered by the exclusivity provision of the Workers’ Compensation Act. The Court held that for an employer to prevail, the defense must be clear from the face of the Complaint.
Here, the Court determined that, based on the Complaint, a determination could not be made on whether the injuries alleged were related to the employment, or instead were the result of a personal attack, and that additional fact-based inquiry was needed. Because injuries determined to be the result of a personal attack are not covered by Alabama’s Workers’ Compensation Act, the Court was not able to confirm that the exclusivity provision applied.
About the Author
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.
Regardless of whether a workers’ compensation settlement is finalized before a Circuit Court Judge or an ADOL Ombudsman, the ADOL Workers’ Compensation Division, must receive a completed WC-4 Claim Summary Form that identifies the county where the settlement was finalized. This is a non-issue for court approved documents since they always reflect the county of filing. However, for ombudsman settlements it is also required that the county be reflected on the WC-4.
Forms are to be sent to:
Earlene Holland: earlene.holland@labor.alabama.gov
Phone or FAX 334-956-4031
Christine Dunn: Christine.dunn@labor.alabama.gov
Phone or FAX 334-956-4032
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.
Alabama is a physical-mental state which means you have to have a physical injury in order to be able to recover mental injuries. Ten years ago,the Alabama Court of Civil Appeals held that PTSD could be recoverable as an occupational disease provided that there was a corresponding physical injury. Lawmakers are now proposing to amend the Alabama Workers’ Compensation Act to make an exception for first responders. H.B. 44 would apply to law enforcement officers, firefighters, paramedics, emergency dispatchers, and emergency medical technicians of an emergency services agency or entity. The bill was referred to the House of Representatives committee on Ways and Means General Fund.
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.
Earlier today (2/28/20), the World Health Organization chief Tedros Adhanom Ghebreyesus told reporters that the risk of spread and impact of the coronavirus is now very high as a “global level”. So how will this affect workers’ compensation in Alabama? Most likely in a similar manner to how it will affect workers’ compensation in New Jersey. The below article is re-published with the permission of nationally known New Jersey attorney and blogger, John Geaney. It was originally published earlier today on Mr. Geaney's New Jersey Workers' Comp Blog (http://njworkerscompblog.com). Alabama does not have the statutory presumptions for public safety workers that New Jersey does. However, similar to New Jersey, for the coronavirus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.
The Potential Impact of the Coronavirus on New Jersey Workers’ Compensation
Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims. Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?
The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker. For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low. The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree. This test is hard to meet because it is next to impossible to identify the source of the virus. Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations. For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact. It would almost always be pure speculation where the exposure occurred.
Public safety workers, on the other hand, will have a strong argument for compensability. The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers. That law became effective in New Jersey on July 8, 2019. This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.” Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.
N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .” There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.
N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence. The language does not say definite or proven exposure but rather “potential” exposure. Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.
These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute. Having a presumption of compensability is powerful. When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related. Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures. The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related. So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.
The statute drives this point home: “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”
The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States. If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment. While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms. Sadly, a small percentage of deaths is related to the coronavirus. It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.
Our guest blogger from New Jersey, 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.
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.
February 2020
Tennessee Appeals Board Finds “Could Be” Medical Testimony Insufficient to Establish Causation
Prior to 2014, the compensability of Tennessee workers’ compensation injuries was frequently established by medical testimony that the injury “could be” or “might be” work related. That ended in 2014 with the Tennessee Workers’ Compensation Reform Law. One of the many changes brought about under the Reform was the statutory requirement that an injury was not compensable unless it aroseprimarily out of and in the course and scope of employment. Moreover, causation had to be established to a reasonable degree of medical certainty, meaning more likely than not, “as opposed to speculation or possibility.” Presumably, this now means that “could be” or “might be” medical testimony is generally not enough to support a finding of compensability.
The Tennessee Workers’ Compensation Appeals Board put that proposition to the test on January 21, 2020, in the case ofArmstrong v. Chattanooga Billiard Club. In that case, the employee alleged injuries to her mouth, face, and right arm as a result of receiving an electrical shock in the course of her employment. The employer denied causation of the alleged dental injuries, relying on the opinion of Dr. Richard Johnson that the dental injuries were not work related. However, the employee responded by submitting the medical opinion of Dr. Drew Shabo that the dental work needed to save the employee’s teeth “could very well be needed due to the electrical shock.”
The Appeals Board reviewed this case on a motion for summary judgment from the employer. Finding that Dr. Johnson’s opinion was sufficient to negate an essential element of the employee’s claim, the burden shifted back to the employee to demonstrate the existence of specific facts in the record that could convince the court to resolve the causation issue in her favor. The Appeals Board found Dr. Shabo’s “could be” opinion insufficient to satisfy the statutory causation standard. Therefore, the employer was entitled to summary judgment with regard to the alleged dental injuries.
For more information, please contact:
Fredrick R. Baker, Member
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com
Two bills of interest to the Workers' Compensation Field:
SB 275
Also, as previously reported, an intermediate court of appeals of West Virginia is one step closer to reality asSenate Bill 275 advanced out of the Senate by a mostly party line vote of 18-14, with two Senators absent. As previously reported, Senate Bill 275 would create an Intermediate Court of Appeals which would hear, by right, all appeals from Circuit Courts after June 30, 2021, and its decisions would be accorded precedential effect by the lower courts. Appeals of decisions from that court to the Supreme Court of Appeals would be by discretion only. The judges are elected to 10-year terms by the citizens in non-partisan election. The bill creates a northern and southern district within West Virginia, each with a three-judge panel to hear appeals arising out of its geographical area and is expected to cost $6.3 million a year. Additionally, the bill significantly reorganizes workers' compensation appeals by transferring all powers and duties of the current Workers' Compensation Office of Administrative Law Judges to the three-judge panel of the Workers' Compensation Board of Review. The Office of Judges would issue final decisions on all objections in its possession on or before September 30, 2021, and will then sunset on October 1, 2021. The Intermediate Court of Appeals would exercise appellate jurisdiction over all decisions issued by the Office of Judges and the Board of Review after June 30, 2021.
The bill was reported to the House where it was double-referenced to Judiciary and then Finance. Its future in the House is cloudy, at best, given its history there.
SB 339 and SB 752
When the West Virginia Medical Cannabis Act of 2017, as created bySenate Bill 386, was enacted, the program had serious shortcomings which had to be addressed in 2019 bySenate Bill 1037. One of those shortcomings, according to medical cannabis advocates and market watchers was the restrictive manner of delivery of medical cannabis. Indeed, Senate Bill 386 only permitted pills, oils, tinctures, and creams, but did not permit leaf or plant forms, unless such were approved by the Department of Health & Human Resources in the rules it was required to promulgate to implement the program. Therefore, when medical cannabis advocates in the Legislature had under consideration those very rules, as bundled in Senate Bill 339, they successfully amended the same in committee to permit dispensaries to provide medical cannabis in dry leaf of plant form. The committee amendments were adopted by the full House by a vote of 74-23, with three absent. Since the House amended a Senate bill, it was reported back to the Senate for concurrence. The Senate, meanwhile, had under considerationSenate Bill 752 which, among other things, expanded the definition of serious medical conditions for which medical cannabis is approved to include ulcerative colitis as well as opioid use disorder. Furthermore, the bill made it easier to change the form of delivery of medical cannabis by empowering the commissioner of the Bureau of Public Health to approve such forms upon a recommendation of the advisory board. This bill is expected to pass the Senate on February 26. Its future in the House seems bright, given the action that chamber took on the rules bundle in Senate Bill 339.
For more information or any questions, please contact Dill Battle at 304-340-3800.
Adjusters and employers familiar with other state workers’ compensation laws are often surprised to find out that the New Jersey Workers’ Compensation Act contains no statute requiring employers to pay for transportation costs to get employees to medical appointments and no mileage reimbursement provision.
When an employer requires an injured worker who has moved out of state to come back to New Jersey for an independent medical examination, the employer does not have to pay for airfare, reimburse costs of travel, or reimburse mileage.
Yet there are situations where it may make good sense for employers to consider providing transportation. One such situation occurs when there is an offer of light duty. As readers well know, the Harbatuk case stands for the proposition that an employer can terminate temporary disability benefits on an offer of light duty if the injured employee refuses the light duty offer. Suppose the injured employee is more than willing to accept the light duty offer, but the authorized treating doctor will not permit the injured worker to drive a car as a result of the work injury? Should the employer refuse to pay temporary disability benefits when the employee does not appear for the light duty assignment?
This situation happens quite frequently because many injuries lead to restrictions on driving following surgery or the employee may be taking authorized prescription medications that negate driving. When faced with this issue, most Judges of Compensation will not endorse the termination of temporary disability benefits when an employee wants to come back to work light duty but cannot due to a restriction against driving imposed by the treating doctor. Judges do not consider this to be a refusal to perform light duty, so it may make sense in this situation to provide some means of transportation.
Distance is often the key variable. Many injured workers have long drives to work where no public transportation is available. Some employers will offer to have a fellow employee pick up the injured worker and drive the injured worker to the light duty assignment. In rare situations, employers may even provide an Uber or Lyft driver. Still other employers faced with this dilemma will simply continue to pay temporary disability benefits until the injured worker reaches maximal medical improvement or can return to driving. New Jersey is a state where temporary disability benefits end at MMI or return to work full duty, whichever is earlier.
Another transportation issue arises when the injured worker cannot get to physical therapy or make treating appointments because of a driving restriction placed on the worker by the authorized physician. Again, there is no case law on this issue, nor any statute that addresses it. Employers will often come up with a creative solution because they know that if the employee cannot get to treatment or therapy, the recovery period will be lengthened.
Thus far we have discussed cases involving driving restrictions. But there is a large contingent of New Jersey workers who do not own cars and only get to work through employer provided transportation. When an injury occurs to such an employee, there may be no way to get to the office of the treating doctor. Some employers provide transportation in this situation. It is also worth noting that there are a few occupational health facilities and physicians that provide transportation, picking the employee up for treatment and returning the employee to his or her residence. This is an important service that employers should bear in mind.
The lesson in all of this is that the absence of a statutory provision on transportation has not prevented New Jersey employers from creating practical solutions to challenges in getting employees to work and to medical appointments.
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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.
