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NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


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It has been said that, from the outset of the COVID-19 pandemic, governments in Canada have been focused on getting people back together, while the U.S. has been more focused on keeping people at work. Indeed, in the United States, the Biden administration and the Occupational Safety and Health Administration (OSHA) have attempted to enforce very rigid mandatory vaccination policies for businesses with more than 100 employees. In Canada, the federal and provincial governments have not been involved in the issuance of mandatory vaccination policies for private businesses.

Interestingly, at the start of 2022, some governments in Canada have started to take public positions, including the Government of Canada, which has announced a regulation requiring employee vaccination in all federally regulated workplaces that is scheduled to come into effect in 2022. It will be interesting to monitor whether, in the context of several governments beginning to lift restrictions, the regulations will actually come into effect. However, as employers react and decide to rollout their own policies, it is clear that future developments regarding mandatory vaccination policies in Canada will involve more judicial decisions, including challenges before the courts. That is, unless and until clear directives are passed by governments in Canada.

In this regard, an analysis of the situation in Canada, particularly in Québec and Ontario, allows us to offer a few thoughts that companies should have when making a choice regarding the implementation of a mandatory vaccination policy.

Recent court decisions

In Ontario and Québec, the first arbitration decisions on vaccination policies were released in the last few weeks and months. These are, among others, the Union des employés et employées de service, section locale 800, et Services ménagers Roy ltée decision in Québec, as well as the UFCW v Paragon Protection and Power Workers’ Union v Electrical Safety Authority decisions in Ontario, all of which have recently been covered by BLG’s Labour and Employment group.

It is interesting to note that the Electrical Safety Authority decision and, more recently, the Chartwell Housing Reit decision, remain the only ones where the vaccination policies were considered unreasonable. The reasoning behind these decisions should be a further lesson to employers, as it demonstrates that each case will need to be assessed individually and that employers need to show that their policy is “reasonably necessary and involve[s] a proportionate response to a real and demonstrated risk or business needs”, as our coverage of the Electrical Safety Authority decision explores in detail. Also noteworthy: in the Chartwell Housing Reit decision, the fact that the policy automatically provided for the termination of employees who refused to comply with the policy, in particular, was found to be unreasonable by the arbitrator.

Other recent decisions of note are the Bunge Hamilton Canada and Maple Leaf Sports and Entertainment decisions, which were rendered in Ontario. These decisions confirm some of the early developments seen in other decisions, but also provide some interesting new elements. In both cases, the vaccination policy was upheld by the arbitrator, further demonstrating that it is possible to implement a vaccination policy in a unionized context, in a reasonable and legal manner. In particular, the Bunge Hamilton Canada decision, in conjunction with the Chartwell Housing Reit decision, demonstrates that employers should be careful about including in their policy a provision to the effect that failure to comply with the vaccination requirement will result in termination of employment or other specific disciplinary action. On the other hand, the Maple Leaf Sports and Entertainment decision provides significant comfort to employers, as the arbitrator relied on the "weight of authority" that endorses mandatory workplace vaccination to reduce the spread of COVID-19.

Considerations in designing a mandatory vaccination policy

After reviewing these decisions, as well as taking into account our overview of the situation in British Columbia, we believe there are three issues that employers and legal counsels must consider when designing a mandatory vaccination policy.

1. Does the collective agreement allow for such a policy?

A collective agreement evolves and becomes more complex as the union-management relationship develops. As such, a review of the applicable collective agreement is necessary to ensure that an existing clause in the agreement will not be used by an arbitrator as the basis to overturn the policy.

Such a review is even more important where the clause in question was drafted in general terms, to cover general issues, and not any issue remotely applicable to COVID. Similarly, when adding provisions to a collective agreement, the parties must remain careful, because these added provisions could be used in the future as the basis for an arbitrator to rule against the legality of an employer’s policy. Indeed, general language contained in a collective agreement related to health and safety, fairness or equal treatment of employees are just a few examples of this kind of broad language which could result in a broader interpretation than that intended when such general language was added into the collective agreement.

We saw a glaring example of this in the Paragon Protection decision, where a provision of the collective agreement adopted several years before the 2020 pandemic was decisive in the arbitrator’s finding, as it related to the legality of the vaccination policy at this employer.

2. Should unions afford more protections to fully vaccinated employees, or to those who want the right to choose not to be vaccinated?

This will determine whether a trade union will decide to contest the vaccine policy. Equally true: employers will need to be particularly vigilant and diligent in balancing these two positions. It will necessarily involve a workplace analysis. As we have seen in recent arbitration decisions, the employer will have to justify its policy by taking into account various factors, which include the actual risk of an outbreak in the workplace, the possibility of telecommuting for the workforce, or accommodating employees who refuse the vaccine. The rate of vaccination among employees, if this data is available, will also be important to consider.

This consideration applies equally to unions, which in Québec are subject to a duty of representation under section 47.2 of the Labour Code. Other provinces have similar, if not identical, legislation. Thus, unions will have to weigh the competing interests of their members in the event of a grievance on the issue of contesting vaccination policies.

Although much has been written on this subject of the duty of fair representation and the ability to choose between conflicting issues, the matter remains one where employers or trade unions alike have not been willing to push this to the line. An example of this existing type of quandary for a trade union is the situation where the trade union must choose between representing the supposed harasser who is disciplined in the workplace or defend the rights of the employee harassed, to ensure a workplace that is free from harassment.

Similarly, do the health and safety protections and the obligations imposed on employers to safeguard these protections existing under the laws of the applicable province outweigh the fundamental privacy rights and human freedoms of many of the same employees? This balancing act is neither easy to answer nor determine. However, these questions will not disappear and will require trade unions and employers to deal with these issues, either together at a bargaining table or in front of the applicable tribunal or court. Where the first option is chosen, the parties will need to make sure that the language inserted into the collective agreement does not compromise either party, nor extend beyond the purpose of why such language was added into the agreement.

3. In a non-unionized workplace, whose responsibility is it to protect the employees?

In the context of a global pandemic, we believe that this responsibility cannot rest solely on the employer’s duty of prevention set out in section 51 of the Act respecting Occupational Health and Safety (AOHS) in Québec or, for that matter, any other similar provincial legislation. Workers themselves already have an obligation to "take the necessary measures to ensure their health, safety or physical and psychological integrity" and to "see that they do not endanger the health, safety or physical and psychological well-being of other persons at or near the workplace" under the AOHS.

It is possible that the choice not to be vaccinated (for reasons other than religious or health reasons) could be interpreted as a breach of these obligations, as was the case in Services ménagers Roy. In addition, one must also consider the important role that government plays in managing the pandemic and its consequences on the public, as citizens and employees. Consequently, is the application of government measures, including the implementation of vaccine rollouts, sufficient to ensure the safety of workers, or are other measures necessary, such as mandatory vaccination laws? These are difficult questions to answer and balance.

One size does not fit all

These recent arbitration decisions highlight that each case is a particular situation, and that there is no uniform model applicable to all employers, employees and/or trade unions. Thus, considerations in designing a mandatory vaccination policy must be tailored to each individual case, and we suggest that you contact a member of BLG’s Labour and Employment group to advise you on your particular situation.

Following these initial jurisprudential developments regarding vaccination policies, the debate already seems to focus on more specific issues. It appears necessary to take a step back and consider the fundamental principles of the Canadian occupational health and safety regime, for instance sections 2 and 4 of Québec’s AOHS. These sections stipulate that the law aims to eliminate at the source dangers to the health, safety and physical and psychological well-being of workers, and all employers, employees and trade unions should factor in the public order nature of these provisions. These principles should serve as a starting point for any analysis of the legality of a vaccination policy, particularly when it comes to balancing the rights of vaccinated persons against the rights of non-vaccinated persons. As arbitrator Denis Nadeau stated in Services ménagers Roy, the Charter rights of some employees cannot be used to obscure the occupational health and safety rights of the rest of their colleagues, nor the obligation of employers to take measures to protect the occupational health and safety of their employees.

While this line of case law has been a positive for employers and unions alike, in that all of us are now much better informed of the interpretation to be given to vaccine mandates, the last few weeks have forced us to take a step back and reconsider how applicable this case law is, within the present reality. As previously mentioned, governments all over Canada have started to eliminate the use of vaccine passports, to ease occupancy limits, to eliminate the need for exclusive remote working, and to allow people to slowly get back together. In particular, the Québec CNESST, health and safety division, has set out on their website the following guidelines, among others: “remote work is no longer mandatory and a progressive hybrid return to work is possible and according to the terms decided by the employer and a choice between the wearing of masks or social distancing of two (2) meters or the continued existence of physical barriers.”

Final thoughts

So what does all this mean for employers’ prerogatives, employees’ rights and the future steps that should be taken with regard to the non-vaccinated or partially vaccinated employees? Can employers realistically continue to impose and apply rules which demand to be fully vaccinated, and terminate those employees who refuse or are not willing to complete the vaccination procedures in place? The answer to this question becomes even more complex as governments loosen previous regulations and reshape our understanding of them.

This is the new reality facing employers, looking ahead. The last two years have been a series of turns and twists. The present changing landscape is yet another turn in the road that employers must consider. While some would recommend holding the course, one must consider how arbitrators and the judges of the TAT will decide when faced with the changing legislative landscape. In light of this, employers may well be advised to revisit their existing policies and consider whether to keep the same policies in place, scrap them or just consider their decisions on a situation-by-situation basis.

There is no right answer at the present time but, as always, BLG’s Labour and Employment group will continue to monitor these vaccination policy cases as they proceed through the courts and before grievance arbitrators, and keep you up-to-date with any relevant case law and regulatory items.

The Oklahoma Workers’ Compensation Commission has unanimously agreed with the administrative law judge that there is a minimum statute of limitations of one (1) year from the date of injury to file a claim. 

85A O.S. 69(A)(1) provides that a claim shall be barred unless filed within one (1) year of the date of injury.  The second part of the statute, after the word “or” states that if a claimant has received benefits, the statute of limitation is six (6) months after the payment of benefits.  In Erasmo Paredes v. Schulumberger Technology Group, the respondent argued the employer provided three (3) months of benefits after the injury and the statute of limitations ran six (6) months after payment of benefits, therefore, shortening the original statute of limitations to nine (9) months from the date of injury.

The claimant filed a claim ten (10) months after the injury.  The Workers’ Compensation Commissioners found that the statute of limitations is the greater of the two independent statute of limitations provisions.  The opinion found the word “or” is used to express an alternative statute of limitations, with the claimant receiving the benefit of whichever of those is longer.

 

Legal Update by Attorney Marshall Tuttle and Law Clerk Jordan Gehlhaar


Iowa Uniform Jury Instruction 200.34 is titled “Previous Infirm Condition” and reads: 

If plaintiff had [a] condition making [them] more susceptible to injury than a person in normal health, then the defendant is responsible for all injuries and damages which are experienced by plaintiff that are caused by defendant's actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person under the same circumstances.

This is known as the “Eggshell Plaintiff Rule.” It originates from the idea that some victims have an “eggshell-thin” skull which results in abnormally excessive damage. The rule requires the person causing the injury to be liable for all damage, even though most people would not experience the same effects or require the same treatment. It applies in personal injury cases where the victim is more susceptible to injury because of their pre-existing condition. For example, if you’re involved in a minor car accident and the other driver has osteoporosis or heart disease, you are still liable for their substantial medical care even if a “healthier” person would not have required care. Therefore, this rule can make damages—such past and future medical expenses—much higher.

The Iowa Supreme Court recently discussed this instruction in Mengwasser v. Comito and Capital Fruit Company. The plaintiff in that case was rear-ended by a vehicle traveling approximately five miles per hour; the airbags did not deploy. She requested an eggshell plaintiff instruction under the theory that degenerative disk disease in her neck made her more susceptible to injury. The trial court denied this instruction and she appealed. The appellate court affirmed, finding the plaintiff had only proven she aggravated a previous injury, which is not the same as proof of a greater susceptibility to injury.

For this instruction to apply, the plaintiff must request it prior to trial. Additionally, there must be evidence showing that prior to the injury, a condition made them more vulnerable or prone to injury than a person of average health. This can be determined through medical records, discovery responses, and correspondence with opposing counsel.

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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

"Once More Unto the Breach, Dear Friends"


On March 24, 2022, a Texas Department of Insurance news release notified system participants of a data security breach. Names, addresses, birth dates, phone numbers, whole or partial Social Security numbers, and specific information about work comp claims were compromised by a TDI web application that managed such information.  

TDI became aware of the problem on January 4, 2022, removed the application, and commenced an investigation.  Those with a new work comp claim between March 2019 and January 2022 will receive letters apprising them of the breach.  Free credit monitoring for one year, including identity theft restoration and fraud consultation, will be offered to such individuals, as well as to those whose claims date back to 2006 and were affected.  

Concerned participants may determine if their claim information has been compromised by calling 855-248-7100.  

Where Do They Find the Time?

 
Claimant attorney Kim Wyatt and carrier attorney Dean Pappas were the hardest working comp attorneys in 2021, according to a report prepared by the Division of Workers’ Compensation (DWC) in response to an open records request for a list of Texas’s top billers.

Ms. Wyatt had approved fees for the year of $880,050.00 while Mr. Pappas had $811,747.50. Assuming billing at the Division’s maximum allowed hourly rate of $200.00, Ms. Wyatt put in 4,400 hours for the injured employees she represents, and Mr. Pappas was not far behind with 4,058 hours for his carrier clients. That’s 12 and 11 hours per day, respectively, every single day of the year, Saturdays, Sundays, and holidays included.  

This is not the first time each has topped the list. Ms. Wyatt was also number one in 2017 and a close second in 2020. Mr. Pappas was number one in 2017 and 2018, slipped to number two in 2019, and was back on top again in 2020.  

Equally impressive are Bill Abbott & Associates, whose claimant firm placed four attorneys in the Top Ten.

Number three on the list of top-billing claimant attorneys for 2021 is Adam Henderson, who was indicted for billing fraud last year. The indictment alleges Mr. Henderson submitted bills for work he did not do between January 1, 2012 and January 31, 2019. A DWC press release stated that he and two other attorneys were charged with securing the execution of a document by deception, a first-degree felony and tampering with a government record, a second-degree felony. 

According to DWC’s press release, “DWC adopted an attorney fee rule in January 2017 to allow DWC to monitor attorney billing more effectively.”  
 
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2021, click the following link: Top 100 2021

Prior years can be viewed here: Top 100 2020, Top 100 2019, Top 100 2018, Top 100 2017

12-Year Battle


Texas workers’ compensation doctor Clinton Battle of Arlington Occupational and Medical Clinic was sentenced to 12 years in federal prison for fraud and drug crimes on March 24, 2022. U.S. District Judge Mark Pittman further ordered Dr. Battle to pay $376,368.00 in restitution.  

Attentive readers may recall our reporting in June 2020 of Dr. Battle’s federal indictments for conspiracy to distribute controlled substances, issuing prescriptions for hydrocodone, codeine, Xanax, phentermine, and tramadol, without performing the necessary medical examinations, and for receiving remuneration from his patients in return, sometimes in the form of money, sometimes in illegal drugs, specifically cocaine. 

Dr. Battle was also indicted on two counts of conspiracy, one for distributing the drugs with his nurse practitioner, even going so far as to permit her to use his DEA registration number to issue prescriptions herself. 
 
Finally, Dr. Battle and his medical assistant were accused of conspiring to commit mail fraud, specifically submitting fraudulent claims to insurance companies, including those in the Texas Workers’ Compensation system.  Part of their tactics included coding for medical procedures at higher rates than are permitted and submitting claims for hours-long Functional Capacity Evaluations (FCEs) he administered.  

In July 2021, Dr. Battle was convicted of conspiracy to distribute controlled substances and distribution of controlled substances.  He pled guilty to conspiracy to commit mail fraud.  Evidence adduced at trial revealed that Dr. Battle did not perform the FCEs at all (his unlicensed assistants did), and they took far less time than claimed in his billing to insurance carriers. Physical therapy sessions that were conducted by the same assistants, or sometimes not at all, were also billed as part of Dr. Battle’s treatment, much of which was incorrectly coded to permit higher reimbursement rates.  

During the five years the scheme was in effect, Dr. Battle wrote over 50,000 fraudulent prescriptions.  Of those, 17,000 were for hydrocodone, an opioid.  Per the release from the U.S. Attorney’s Office for the Northern District of Texas, DEA Special Agent in Charge Eduardo A. Chavez stated: “Dealers of illegal drugs come in many forms.  This is a case of the abuse of trust and position.  Dr. Battle and his co-conspirators used their authority to push pills into our neighborhoods, disregarding the inherent harm they cause.”

Moving Up & Stepping Down, Pt. 2


Following up on reporting from last month’s newsletter, turns out March is National Ladder Safety Month, according to the American Ladder Institute’s webpage.  Yes, the American Ladder Institute is still real, and they still mean business.  See for yourself: https://www.americanladderinstitute.org/

So, if you must operate a ladder, please do so safely.  Until April.  Then all bets are off. 

Copyright 2022, Stone Loughlin & Swanson, LLP

Moving Up & Stepping Down, Pt. 1


We are pleased to announce that Kara Squier, Administrative Law Judge in Fort Worth, has been promoted to Team Lead for the Division’s northern field offices, including those in Dallas, Fort Worth, and Denton.  Judge Squier has been with the Division since 2013 and is widely regarded as one of the DWC’s best. We congratulate her on the promotion!
  
Simultaneously, we are saddened to bid farewell to Appeals Panel Judge Rafael Quintanilla, who is retiring at the end of March 2022. The Division has not announced a replacement and posted the job opening on its website on March 24. We certainly wish Judge Quintanilla well.  
 

You Can't Judge a CCH Set Notice By Its Cover


Observant system participants may have noticed a conspicuous omission from Contested Case Hearing set notices lately: the name of the Administrative Law Judge assigned to the case.  The Division recently halted the practice of announcing the appointed judge on the notification of hearing dates, times, and locations.  

The decision would seem to have something to do with the increasingly common practice of shifting docket assignments among Division judges to distribute cases more evenly in the interim between the BRC and the CCH.  

However, there is concern among system advocates that the change may result in pre-hearing motions sitting in limbo until a final determination on the presiding judge has been made, a selection that is often not finalized until the Friday before a CCH.

DDs: Distressing Developments


TDI posted an open invitation on its website on March 4, 2022, for system participants to share their thoughts on proposed changes to Chapter 127 and section 180.23 of 28 of Texas Administrative Code, the portions pertaining to the designated doctor program.  Comments will be accepted until 5:00 p.m. on April 4, 2022, and can be emailed to RuleComments@tdi.texas.gov, or mailed to Legal Services, MC-LS, Texas Department of Insurance, Division of Workers’ Compensation, P. O. Box 12050, Austin, TX 78711.

Some of the planned revisions are rather disconcerting. The DWC068 Designated Doctor Examination Data Report, which provides a simple summary of a designated doctor’s findings on extent of injury and disability, will no longer be mandated. A designated doctor will also be absolved of the need to undergo re-certification every two years if he or she passed the certification test after May 13, 2013.

DDs will also no longer be required to complete multiple impairment rating certifications taking into account each reasonable outcome for the extent of injury, per the suggested alterations to Rule 127.10(d).  Only when directed to do so by the Division may a designated doctor provide multiple certifications.  A sharp uptick in the number of bifurcated hearings and Presiding Officer Directives (PODs) should therefore be expected, as extent of injury issues seem destined to require adjudication first, followed by MMI/IR hearings later.

Curiously, a proposed change to Rule 127.1(b)(3) would obviate the need to list all accepted or administratively-determined conditions from the DWC032 Request for Designated Doctor Examination, virtually guaranteeing an increase in case management on the part of the presiding officer.  

But here’s the one that will really have you scratching your head: changes to Rule 127.130 would permit examination for traumatic brain injuries to be performed by doctors with specialties in orthopedic surgery, thoracic and cardiac surgery, plastic surgery, anesthesiology, family medicine, and dermatology.  You read that right: dermatologists would be permitted to examine claimants for traumatic brain injuries.  

So, the next time you actually do scratch your head, remember to ask your dermatologist if you have suffered a TBI.
 

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