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.
A long-time friend of
this firm, Machelle Davidson, a senior claim representative at Accident Fund,
has been named a 2023 recipient of AF Group’s Legend Award.
In announcing the award, AF Group explained that the award recognizes AF Group
teammates who demonstrate its People First culture through their
outstanding character, leadership, and commitment to excellence. Lisa Corless,
president and CEO of AF Group, said that “each of our winners is an absolute
shining example of who we are as a People First, values-driven organization
. . . We’re all made better by having them as part of our team.”
We could not have said it better. Congratulations, Machelle!
Copyright 2023, Stone Loughlin & Swanson, LLP
A worker in Austin, Texas lost his bid to carve out an exception to the
exclusive remedy of the Texas Workers’ Compensation Act on the ground that, at
the time of his injury, he was performing duties outside of the course and
scope of his employment.
Melvin Gonzalez worked as a car detailer and porter for Dynamic Motors, a used
car dealership and service garage whose advertising catchphrase is “Don’t
Panic. GO DYNAMIC!”
The service manager asked him to help with repairs on the roof, and while doing
so Gonzalez stepped through a skylight and fell 20 feet to the concrete floor
below.
Dynamic filed a report of injury with its workers’ compensation insurance
carrier and Gonzalez accepted workers’ compensation insurance benefits. He then
sued Dynamic, alleging that the company was negligent in failing to provide
fall protection.
Dynamic asserted the affirmative defense that workers’ compensation insurance
benefits were Gonzalez’ exclusive remedy, and the trial court agreed. On
appeal, Gonzalez argued that because roof repairs are not part of Dynamic’s
business, and because he was injured while performing such repairs, he was not
engaged in the usual course and scope of Dynamic’s business and was, therefore,
not an “employee,” as that term is defined by the Texas Worker’s Compensation
Act, at the time of the injury. The Austin court of appeals disagreed and said
that the Act does not contemplate a “task-by-task” approach to the issue of
whether a worker is injured in the course and scope of employment.
You can read the decision here.
Copyright 2023, Stone Loughlin & Swanson, LLP
In our August newsletter, we reported optimism that the Texas Department of Insurance, Division of Workers’ Compensation may begin requiring applicants for Supplemental Income Benefits to provide material evidence of job applications they have submitted in their search for work. Two conflicting developments this month have heightened the intrigue.
The source of our optimism in August was a memo to stakeholders from General
Counsel Kara Mace enclosing proposed changes to the DWC Form-052, Supplemental
Income Benefits Application. The proposed revision included an FAQ page with
the following guidance for applicants looking for work on their own:
Show you were actively looking for a job by attaching job applications or other documents showing you were looking for a job.
The first development this month buoyed our optimism – it was the Division’s
filing of a legal brief in the Supreme Court of Texas in the long-running
litigation over the validity of the SIBs rule. As we have reported, on behalf
of our client, Accident Fund Insurance Company of America, we challenged the
rule as facially invalid because, among other things, it allows the Division to
award SIBs to claimants who purport to be looking for work on their own but who
do not document an active work search with job applications submitted as
required by the Texas Workers’ Compensation Act. A Travis County district court
agreed that the rule is invalid and enjoined the Division from applying it, but
the Division appealed that ruling and then the Austin court of appeals muddied
the water by affirming in part and reversing in part. Accident Fund now has
filed a petition for review by the Supreme Court of Texas in an attempt to
obtain clarity. On October 6, the Division, represented by the Attorney
General, filed a response to the petition. When describing applications for
SIBs filed by workers who purport to be looking for work on their own, the Division
made this representation to the court:
The Division requires injured workers independently looking for work to document their searches by job applications. If the worker submits an online or hard-copy written application, a copy must be provided to the Division with the worker’s SIBs application.
See page 19 of
Division’s Response to Petitions for Review in Accident Fund Insurance Company of America and Texas Cotton
Ginners’ Trust v. Texas Department of Insurance, Division of Workers’
Compensation, Cause No. 23-0273, which is available for review and
downloading here.
This representation by the Division seems to confirm that change is afoot because the
position it is taking now certainly is not the position it has taken in the
past. Indeed, one of the reasons that Accident Fund challenged the validity of
the SIBs rule in the first place is that the Division historically has not required SIBs recipients
to provide copies of job applications they claim to have submitted to employers
– instead, it has merely asked them to check boxes and fill in blanks on the
Form DWC-052 (Application for Supplemental Income Benefits) describing actions
they have taken.
But the second development this month has clouded the picture. On October 13,
we received a decision from a contested case hearing that directly contradicts
the Division’s representations to the state’s highest court. In that contested
case hearing, in which the issue was entitlement to SIBs, we argued that the
worker was not entitled to SIBs because
she had not provided copies of job applications that she claimed she had
submitted to employers. The Administrative Law Judge dismissed that
argument and ordered payment of SIBs. In her decision, she wrote:
The insurance carrier
questioned the claimant’s credibility because she did not
provide any documentary evidence of the applications or emails she sent to the
companies listed. The insurance carrier also contended that the claimant did not
make an active effort to obtain employment. The insurance
carrier’s argument was considered, but it was not persuasive.
Based on a careful review
of the evidence presented, the
claimant met her burden of proof to establish that she demonstrated an active
effort to obtain employment.
The claimant performed three work search contacts each week of the qualifying
periods. Accordingly, the claimant is entitled to supplemental income benefits
for the third and fourth quarters.
So we have to ask –
have Division ALJs not gotten the memo that the Division’s position has
changed? Or was the Division’s representation to the state’s highest court
incorrect?
Copyright 2023, Stone Loughlin & Swanson, LLP
If you are a regular reader of our newsletter, you know that there was a
challenge pending in the 13th Court of Appeals to the old Seabolt standard for
determining entitlement to Lifetime Income Benefits. The challenge boils
down to whether “total loss of use” of a body part as stated in the current
LIBs statute really means “total” and whether loss of use under the current
LIBs statute means loss of function as a member of the body, or loss of
function in regard to employability. At the Zoom trial held in this case, the
trial court judge determined that the old standard still applied and that the
worker could not work using his hand, despite the video evidence that showed
the worker using his hand while working for himself. Well, lo and behold, well
after the fact and during the course of the carrier’s appeal to the 13th Court
of Appeals, SLS received an anonymous letter in the mail. We will leave
you to wonder what the letter said, but it did mention in closing that SLS did
a good job at the trial, which was a nice compliment having nothing to do with
the merits of the case. Given that the trial was held by Zoom with limited
participants, we wonder how the writer of the letter knew so much!
In the meantime, the 13th Court of Appeals issued a Memorandum opinion on
October 12, 2023 dodging the legal issue it was asked to address, and holding
that “the doctrine of vertical stare decises” required the Court to follow the
precedent of the Texas Supreme Court as established law affirming the use of
the Seabolt
standard to new law cases. However, the precedents the Court cited were
not cases where any party directly challenged the Seabolt standard itself. The
cases merely applied that standard. No challenge was made in those cases
on the basis that under the current LIBs statute employability is not relevant
to the application of the statutory language of “total loss of use.” The LIBs
statute contains no qualifier indicating that employability is determinative of
entitlement. The Court of Appeals case is not yet final.
You can read the
decision here.
Copyright 2023, Stone Loughlin & Swanson, LLP
Another long-time friend of this firm, Jacquelyn Coleman, recently retired from
the Division after serving for 16 years as an ALJ and has started her own
mediation practice. While she normally conducts mediations by Zoom, she can
perform in-person mediations with advance notice.
You can learn more about Ms. Coleman and her mediation services on her website
at jdcmediation.com.
We wish you well in your new endeavor, Jacquelyn!
Copyright 2023, Stone Loughlin & Swanson, LLP
The retail sale of psilocybin, better known as “magic mushrooms”, has recently received extensive media coverage. Employers across Canada are increasingly wondering how to address the use or simple possession of psilocybin in the workplace. This article answers five recurring questions.
Current situation
Long used by aficionados for their supposed mind-sharpening and other
properties, magic mushrooms seem to have sprung out of Canada’s back alleys in
recent years.
In Ontario, at least one storefront retailer has set up shop in Ottawa. In
Québec, a similar Montréal business received extensive media coverage when it
became the target of repeated police searches within hours of opening in
summer 2023. Online, the sale of psilocybin for recreational use or micro
dosing – low-dose self-medication – is reportedly surging.
While it is illegal to sell, buy or possess psilocybin in Canada, the substance appears to be gaining in popularity. It has even been spotted on billboards in some Canadian cities. As we’ve seen with cannabis, which was normalized before becoming legal, some employees may now wrongly believe that they can legally use or possess magic mushrooms – even in the workplace.
Employer questions about a mushrooming phenomenon
For Canadian employers, it can be difficult to get a good handle on the impact of rising magic mushroom use, let alone detect it. To help, we have compiled five questions to get you on the right track.
1. What are the effects of psilocybin use?
Magic mushrooms have a chemical composition similar to serotonin, one of our feel-good hormones. They also have hallucinogenic properties.
Health Canada lists a number of effects related to psilocybin use. In the short term, it can cause euphoria and uncontrollable laughter. But it can also cause hallucinations, fear and paranoia. Someone who has taken magic mushrooms may appear confused or disoriented or experience panic attacks.1
The effects generally appear within 15 to 45 minutes of ingestion and last for four to six hours.
Magic mushrooms are usually ingested in solid form (as a tablet or dried and ground up) or infused to make a tea. When in powder form, they can also be snorted. They should never be injected. Doing so can result in a serious medical emergency, since it can cause septic shock and multi-system organ failure.
2. What signs of psilocybin use can be detected in the workplace?
Along with the mood-altering and cognitive effects described above, the physical effects can include light-headedness, spasms or convulsions, sweating, numbness, pupil dilation, loss of coordination and even loss of urinary control. However, these signs are not necessarily specific to psilocybin use.
These effects mean that magic mushroom use is not readily compatible with many jobs, particularly high-risk trades that involve operating precision tools, working at heights or driving motorized vehicles.
No two doses are the same. There are different species of magic mushroom, and effects can even vary between two mushrooms of the same species. Consequently, users cannot easily anticipate the effects based on the dose ingested. Given its long-lasting effects, psilocybin could interfere with an employee’s performance even when taken outside work hours.
In addition, severe intoxication can result from accidentally consuming magic mushroom look-alikes.
No studies have evaluated the long-term effects of extended magic mushroom use. Currently, there is little evidence that consuming hallucinogenic mushrooms can cause physical dependence, but continued use could result in psychological dependence. Many users appear to develop a tolerance to the drug and ramp up consumption to achieve the desired effect.
In contrast, micro dosing involves taking small quantities (about 100 mg, or one tenth of a normal dose) every few days. According to micro dosing proponents, this is not enough to produce the common psychoactive effects, but it does help reduce symptoms of anxiety and depression.
3. How can employers recognize psilocybin products?
These products are typically sold as dried mushrooms. However, since they are consumed in different ways, possession may be hard to detect in the workplace. For example, they can be infused in honey, oil or tea or used as an ingredient in risotto.
4. Does psilocybin have therapeutic effects?
While psilocybin has long been consumed recreationally, its therapeutic use is currently being studied to properly evaluate its potential as a partial treatment for addiction, depression and post-traumatic stress. Clinical trials of such psychedelic-assisted psychotherapies have only been authorized in Canada for a few years and are carried out under strict supervision.
It is therefore not impossible for an employee to be consuming psilocybin as part of a research study into its medical uses.
5. How should employers react to psilocybin’s growing popularity?
To proactively manage the rise of magic mushrooms on the Canadian market, we strongly recommend that employers review their policies on drugs, alcohol and other substances to ensure that workplace possession, use and sale are clearly prohibited. This should apply so long as the substance remains illegal.
Currently, the cultivation, production, possession, purchase and sale of magic mushrooms are illegal. Employers must therefore ensure that employees do not bring such products into the workplace, even if they have no intention of consuming them there.
Employer policies should require any employee or self-employed worker with a medical prescription for psilocybin or cannabis to advise their human resources department as soon as possible. The employer should in turn seek the advice of a health professional to determine whether this substance use is compatible with the employee’s duties. As necessary, the employer could then work with the prescribing professional to prevent the dosage regimen from interfering with work. The employer should also make sure that it poses no risk to the health and safety of the employee or the people around them.
Contact us
If you have any questions regarding this article or how to manage psychoactive substances in the workplace, please do not hesitate to reach out to the author or any member of our Labor and Employment Group.