State News

By: Kelsey Paddock (Partner - San Francisco)

Written by: Tracey Jones and Luke West

Originally appeared on Teague Campbell Dennis & Gorham LLP website

We saw during March 2020 the great migration for businesses to a mainly, and at times exclusively, work from home model. While businesses have re-opened their offices to their employees, data from the Pew Research Center shows that many Americans are still working from home and would want to continue to work from home even after the Coronavirus outbreak ends.

For businesses, there are benefits to having a work from home model from employees. It can be cost-effective in reducing overhead with less need for office space and lower energy costs. However, there are also risks employers should consider when allowing employees to work from home.

Workers’ Compensation Considerations

From a workers’ compensation perspective, for a work from home injury to be compensable, Plaintiff must prove that an accident occurred which arose out of and in the course and scope of employment.

• Accident: An unlooked-for, untoward event. An interruption of the normal work routine.
• Arising out of employment: The accident must have a causal connection to the employment.
• In the course of employment: The injury must occur:
  1. during the period of employment,
  2. at a place where the employee’s duties are calculated to take them, and
  3. under circumstances where the employee is engaged an authorized activity that is calculated to further (directly or indirectly) the employer’s business.

When an injury occurs at home, it is imperative to collect as much information as possible about the event. Knowing specific details of the injury, like the location of the injury, the layout of the workspace, the time the injury occurred and normal work from home routine are essential in determining the compensability of a claim.

Mitigating Risk

A few considerations for employers who intend to utilize a work from home model, wholly or partially, should include:

• drafting revised job descriptions for employees,
• providing a technology stipend,
• setting specific hours for employees who telework, and
• specifying work from home terms and parameters within an employee handbook and/or a signed telecommuting agreement.

Because each and every claim is fact-specific, feel free to contact one of our workers’ compensation attorneys with any questions.

Written by: John Tomei

Originally appeared on Teague Campbell Dennis & Gorham website

Ordinarily, bad faith claims against insurance carriers are brought in the Superior Court in the General Courts of Justice in North Carolina. These claims are based upon the law of contracts and torts. The law provides that there is an implied covenant between an insured and a carrier for the carrier to act in good faith. A carrier’s failure to do so can subject that carrier to liability, including punitive damages. However, when dealing with workers’ compensation coverage and bad faith claims, other issues regarding jurisdiction and venue arise.

Specifically, who has jurisdiction over a claim asserted against a workers’ compensation insurance carrier for bad faith? Is it the North Carolina Industrial Commission or the Superior Court in the General Courts of Justice?

The general rule is that all claims arising from an employer’s or insurer’s processing and handling of a workers’ compensation claim fall within the exclusive jurisdiction of the Industrial Commission, regardless of whether the alleged conduct was intentional or merely negligent. Bowden v. Young, 762 S.E. 2d 622, 625 (N.C. Ct. App. 2015) While the North Carolina Workers’ Compensation Act provides the exclusive remedy for work-related injury matters, the Act has also been construed to give the Industrial Commission jurisdiction not only over those work-related injury claims but also any claims “ancillary” to the original injury—including those against insurance carriers. Ancillary claims have included those related to fraud, bad faith, civil conspiracy, unfair and deceptive trade practices, and intentional infliction of emotional distress. Johnson v. First Union Corp., 131 N.C. App 142, 144, 504 S.E. 2d 808, 810 (1998).

There are some rare exceptions to the general rule. Three of those exceptions include:

1. 1. After a complete Industrial Commission hearing and award of benefits to an employee from his sub-contractor employer, a subsequent action by an employee seeking a declaratory judgment of his rights with respect to an insurance agreement between a sub-contractor employer and its general contractor is beyond the scope of the “employer-employee” relationship ordinarily governed by the Act, and jurisdiction for that claim would lie with the Superior Court. Lowery v. Campbell, 185 N.C. App. 659, 649 S.E. 2d 453 (2007).
   2.  The Act does not confer upon the Commission expressly or by implication jurisdiction to determine, in a proceeding in which plaintiff asserts no claim against the insurance company, a plaintiff’s asserted right to reform a policy and to recover from the insurance company the amount of plaintiff’s award. Clark v. Gastonia Ice Cream Co., 261 N.C. App. 234, 134 S.E. 2d 254 (1964).
   3. If, after the Commission awards the injured worker benefits, an employer’s insurance company knowingly provides false information to police to frame him for insurance fraud, resulting in his arrest, incarceration, and indictment on felony charges, then the worker’s claims for malicious prosecution, abuse of process, and unfair and deceptive trade practices (“UDTP”) exceed the scope of the Act and are properly before the General Court of Justice. Seguro-Suarez v. Key Risk Insurance Co., 261 N.C. App 200 (2018).

There are pitfalls for the unwary in defending bad faith claims. When dealing with a bad faith claim in the context of a workers’ compensation insurance policy, it is important to be aware that the North Carolina Industrial Commission will likely have jurisdiction over those claims. Having attorneys who are experienced in dealing not only with coverage and bad faith claims, but also with appearing before the Industrial Commission, is vitally important in successfully defending these bad faith and other coverage-related matters.

October 2021

Tennessee Enacts New Telehealth Regulations and New Medical Panel Form

Effective October 19, 2021, the Tennessee Bureau of Workers’ Compensation adopted new regulations addressing the use of telehealth in the context of workers’ compensation claims. The purpose of the rules is to provide Tennessee workers’ compensation claimants with an option to utilize telehealth while treating for their injuries.

Under the regulations, telehealth may only be provided with the voluntary consent and agreement of the injured worker and the willingness of the healthcare provider. However, telehealth is not permitted for conditions which require an in-person physical examination. The regulations provide several examples of such conditions, including chest pain, significant burns, deformity of an extremity or suspicion of a fracture, and any bleeding that has not already stopped by direct pressure. However, this list is not exhaustive.

The treatment provided via telehealth is subject to utilization review and must follow all Tennessee standards of medical practice. The use of telehealth does not change any of the requirements for causation, date of maximum medical improvement, or permanent impairment ratings.

Employers are still subject to the same requirement to provide a medical panel to injured workers, and the panel must still include at least three medical providers who are qualified, willing, and able to timely treat the worker’s injury in person, but the panel doctors may also provide their services via telehealth with the employee’s consent. Before receiving medical benefits in the form of telehealth, the injured worker must be given an opportunity to receive in-person treatment. An injured worker may refuse a telehealth encounter at the time of the panel choice without affecting future care to which the injured worker is entitled. 

The newly revised C-42 Medical Panel form also includes a space for an optional fourth choice of physician, which is a telehealth-only provider. However, this does not alleviate the employer’s obligation to still list three medical providers who can see the employee in person.

At any point during the initial visit or follow-up medical visits, the injured worker may refuse telehealth and request in-person care. If the authorized treating physician who is chosen from the medical panel declines to see the injured worker in person, the worker must select a new authorized treating physician from the names remaining on the original panel. The subsequent choice will become the new authorized treating physician.

The Tennessee Medical Fee Schedule applies to providers of telehealth services, and coding and billing regulations must follow the Medicare guidelines in effect for the date of service with no geographic qualifier.

These new regulations will have several practical effects on the way that employers, carriers, and third-party administrators handle their Tennessee claims, including:

- Medical panels must now be provided on the newly revised medical panel form C-42, which may be found at https://www.tn.gov/content/dam/tn/workforce/documents/Forms/c42.pdf. 

- Regardless of these new telehealth rules, the medical panel still must include three or more doctors, surgeons, chiropractors, or specialty practice groups who are located in the employee’s community, and who are able to treat the employee in person. 

- When completing the medical panel form C-42 with the three medical providers who can see the injured worker in person, the medical panel form also requires that the employer indicate whether those providers also have a telehealth option, and if so, document that on the panel.

- In addition to the three “in-person” medical providers, employers now have the option of including a fourth option, which is a telehealth-only option.  However, note that there are several types of medical conditions that cannot be treated by telehealth, and that the injured worker always retains the right to refuse the telehealth option.

Some West Virginia businesses have implemented COVID-19 vaccine mandates for employees. While the West Virginia COVID-19 Jobs Protection Act (W. Va. Code § 55-19-1 through § 55-19-9) protects people, businesses, and entities from some COVID-19 related claims, the Act does not address whether employees who suffer an injury from a COVID-19 vaccine mandated by their employers may bring a workers' compensation claim. This issue has not yet come before West Virginia courts and there is no state case law on the subject.

To receive benefits under West Virginia workers’ compensation law, an employee must show the employee sustained (1) a personal injury (2) in the course of employment and (3) resulting from that employment. W. Va. Code §23-4-1(a). Arguably, if a COVID-19 vaccine is a required condition of employment and an employee receives the vaccine pursuant to that mandate, an employee injured by the vaccine may be able to show that they were injured in the course of and as a result of that employment. Relevant factors may include whether the vaccine was received by the employee on-site and during work hours or on the employee’s personal time and at a different location other than the employee’s work location.  

Vaccine injuries are rare, and even if the employer mandates the vaccine, causation may be difficult to prove. The employee must prove that the injury was a direct result of the vaccine rather than some other source. Because of the rarity of COVID-19 vaccine injuries beyond the typical vaccine after-effects (sore arm, fever, mild symptoms), true injury resulting from an employer-mandated COVID-19 vaccine will likely be infrequent and difficult to attribute to the vaccine. Workers’ compensation insurance carriers and third-party administrators should require proof of a definitive diagnosis or injury directly related to the COVID-19 vaccine before holding the injury compensable.

While some employees may attempt to avoid the exclusive remedies provided by workers' compensation by asserting a deliberate intent claim, the West Virginia COVID-19 Jobs Protection Act may insulate employers from such claims. The Act specifically insulates employers from deliberate intent claims for COVID-19 infections and may also apply to injuries from vaccine mandates. This issue has not been litigated in West Virginia.

Employers should also be mindful of the West Virginia Legislature's recent passage of House Bill 335 that will allow employees to obtain medical or religious exemptions from their employers’ vaccine mandates. The bill was signed by Governor Jim Justice on October 22, 2021, and will go into effect 90 days thereafter.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

Written by: Lindsay Underwood

Originally posted on Teague Campbell Dennis & Gorham website.

While COVID-19 continues to spread, many businesses are working to keep their doors open and stave off another shutdown. As part of that effort, and because of the recent full FDA approval of the Pfizer vaccine, we are seeing a trend toward mandatory vaccination policies. This raises questions about how mandatory vaccines, and possible adverse reactions, could result in new workers’ compensation claims. We can reference existing vaccine policies to determine when insureds could bear the responsibility for providing benefits where an employee sustains an adverse reaction to a mandatory vaccine. We will argue that when a vaccine is encouraged, but not mandated, any adverse reaction does not arise out of the employment. However, once it is mandated, it is nearly impossible to argue that any compensable occupational disease or injury by accident arising out of that mandatory vaccine no longer arises out of the employment.

N.C.G.S. § 97-53 (13) provides that an occupational disease must be “due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.” The NC Supreme Court has held that this provision requires that the disease is (1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and, (3) there must be a causal connection between the disease and the claimant’s employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93-94, 301 S.E.2d 350 (1983).

In cases where the employment exposed the employee to a greater risk of developing the disease than the general public, the first two elements listed above are satisfied.  Thus, any employee arguing an entitlement to benefits after sustaining an adverse reaction from a mandatory COVID-19 vaccine will have to prove they are at an increased risk of developing their condition as a result of the employment, and also establish a causal connection between their reaction and employment. NC courts require a link between the nature of the employment and the alleged disease.

If an employee is required to receive a COVID-19 vaccine as a term of their employment, any medically connected adverse reaction to that vaccine would likely be determined to have placed the employee at an “increased risk” of developing that reaction due to the employment. The third element of the Rutledge test is satisfied where the occupational exposure “significantly contributed to, or was a significant causal factor in, the disease’s development.” The NC Supreme Court has held that where expert opinion testimony is based upon speculation and conjecture, it is not sufficiently reliable to qualify as competent evidence on medical causation. The evidence must take the case out of the realm of conjecture and remote possibility.

In one case, Kai-Ling Fu v. UNC Chapel Hill, 188 N.C. App. 610, 655 S.E.2d 907 (2008), the employee reported an adverse reaction after being required to be vaccinated against a Venezuelan virus as part of her research position. The employee reported that, after the vaccination, she experienced headaches, fever, and shortness of breath. She was prescribed an inhaler and was referred to counseling due to anxiety. She was also instructed to remain out of work due to fatigue. The Court of Appeals held that the employee was at a higher risk than the general public of developing her symptoms. It was specifically noted that when an individual has to take a vaccine because of their employment they are likely at an increased risk for having systemic side effects, as opposed to that of the general public.

Based on the above, it is likely that any adverse reaction from a mandatory COVID-19 vaccine would result in exposure for a workers’ compensation claim. As in any other alleged occupational disease claim, the employee would still need to prove the elements of the Rutledge test, to include showing a causal relationship between any symptoms and the vaccine. We may also have a defense under the “peculiar sensitivity” theory, where an employee’s sensitivity to a vaccine makes their reaction unique. Though that defense is difficult to prove, it should be part of any post-injury investigation. Although most of the cases will be analyzed under the occupational disease standard, we may end up with injury by accident exposure as well. If the vaccine itself is not administered properly and the employee is injured during the administration of the vaccine, that could be seen as an injury by accident. Under either argument, the main investigation will be whether the alleged adverse reaction is truly from the vaccine and not from some other pre-existing condition that the employee might have.

Have questions on the compensability of adverse reactions to mandatory vaccines or other workers’ compensation issues? Reach out to our workers’ compensation team!

By Attorneys AlisonStewart and Nick Cooling, and Law Clerk Jordan Gehlhaar

Recent arbitration decision, Rife v. P.M.Lattner Manufacturing Company, reviewed apportionment of disability and an employer’s right to a credit. The issue in this case was whether the employer was entitled to a credit for 29.6 percent industrial disability it paid as settlement of a prior shoulder injury.

Claimant Rife worked as a welder at P.M. Manufacturing for most of his career. In 2009 he experienced a work-related right shoulder injury resulting in surgery and permanent functional impairment. Rife and P.M. entered into a full commutation settlement in 2010, which stipulated to a permanent disability of 29.6 percent to the body as a whole. At this time, the shoulder was not a scheduled member, so all shoulder injuries were to the body as a whole. Three different doctors provided impairment ratings, but it was not clear which rating was the basis of the settlement. Rife returned to work for P.M. after this injury.

Claimant Rife had no issues with his right shoulder until experiencing another work-related injury in 2018.  He underwent another surgery and was diagnosed with adhesive capsulitis, partial thickness tears of the rotator cuff and labrum, and impingement. The claimant obtained an independent medical examination (IME) that assessed a 19 percent right upper extremity impairment, or 11 percent of the whole person. Importantly, the doctor did not distinguish between the 2009 and 2018 injuries when assessing the claimant’s impairment.

The employer sought apportionment of disability under Iowa Code 85.34(7) for successive disabilities, which provides, in part:

“An employer is not liable for compensating an employee’s preexisting disability that arose out of and in the course of employment from a prior injury with the employer, to the extent that the employee’s preexisting disability has already been compensated under [workers’ compensation law].”  

The Deputy found the employer was not entitled to a credit for the loss assigned to the first injury “under the version of Iowa Code section 85.34(7) that is now in effect.” Previous versions of this statute explained how an offset was to be calculated. But in this version, the legislature provided no mechanism for apportioning the loss between a present injury and prior injury.

Additionally, it was reasoned: (1) the settlement agreement for the first injury did not specify what impairment rating the parties adopted, (2) the employer did not obtain an impairment rating for the second injury or an expert opinion apportioning the two injuries, and (3) a claimant with a prior unscheduled shoulder injury and a subsequent scheduled shoulder injury would likely not receive any additional compensation.

The opinion suggests that an employer is more likely to receive a credit where it is clear what impairment rating was used for both the first and second injuries, the second rating doctor differentiates the percentages for each injury, and the employer provides an expert on the issue.  However, based on the Agency’s interpretation of the statute, apportionment credit is not likely absent legislative amendment.

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By:  Jeannette Herrera (Associate Attorney - Sacramento)

The Federal Occupational Safety and Health Administration (OSHA) published its highly anticipated Emergency Temporary Standard (ETS). As expected, employers with 100 employees or more are required to ensure their workforce is fully vaccinated or provide a negative test result at least once a week. In a likely effort to to encourage employees to choose vaccination over testing, the ETS does not require employers to pay for testing to workers who decline the vaccination.

Employers are further required to pay for employee time off to get vaccinated and provide sick leave for workers for any recovery time following the vaccination.

Health care workers must be vaccinated and are not provided the option of weekly testing. Unvaccinated employees must continue to wear face coverings. Employers also must obtain specified vaccatination documentation; a self-attestation is only allowed if the vaccination record is lost/cannot be produced along with acknowledgments of criminal penalties.

OSHA submitted its proposed ETS to the White House for the Office of Management and Budget to complete a regulatory review, and OSHA published a draft to the public yesterday, November 4. Today, November 5, the ETS was published in the Federal Register and is effective immediately. For those states subject to OSHA, the vaccination and testing implementation requirement deadline is January 4, 2022.

Although not subject to OSHA, California employers should expect a similar and applicable regulatory standard. Cal/OSHA has thirty (30) days, or until December 4, to adopt a standard that is at least as restrictive of the anticipated federal ETS. California employers may also see a similar January 4, 2022 implementation deadline for mandatory vaccination or testing.

Learn more here:  https://www.npr.org/2021/11/04/1048939858/osha-biden-vaccine-mandate-employers-100-workers

Written by: Elizabeth Ligon

On October 7, 2021, Deputy Commissioner Wes Saunders issued an Opinion and Award in Tapper v. Penske Logistics, LLC, awarding the claimant extended benefits. This is the seventh decision on extended benefits that has been issued at the Deputy Commissioner level.

By way of background, the claimant sustained two compensable injuries to his back while delivering newspapers for Defendant-Employer. The claimant was 64 years old when the Opinion and Award was issued. His first date of disability was July 25, 2011. Following several surgeries, Dr. Dennis Bullard opined that the claimant was totally disabled and precluded from gainful employment. The claimant was referred to Rex Pain Clinic for pain management, but his care was subsequently transferred to his primary care provider, Dr. Kirsten Avery, due to a lack of improvement. Dr. Avery saw the claimant once every three months for medication refills. She testified that the claimant lacked the functional capacity to return to work in any capacity. Deputy Commissioner Saunders found her testimony credible based on her familiarity with the claimant and her status as the claimant’s primary care provider for over twelve years.

Prior to the hearing, the claimant obtained a second opinion evaluation with Dr. Charles Goodno and retained Michael Fryar as an expert in vocational counseling. Dr. Goodno did not have a complete copy of the claimant’s medical records and did not consider that the claimant was recovering from several unrelated surgeries when he tested the claimant’s physical abilities. Consequently, Dr. Goodno’s testimony was given less weight by Deputy Commissioner Saunders because his opinions were based on incomplete information. However, Mr. Fryar testified that because the claimant had not been released to return to work in any capacity by any of his medical providers, his search for employment would be futile. Deputy Commissioner Saunders found Mr. Fryar’s testimony credible and concluded the claimant had carried his burden of proving a total loss of wage earning capacity through Dr. Avery and Mr. Fryar’s expert testimony. Plaintiff was awarded extended benefits and ongoing medical compensation.

What can we take away from this case?

This claim is a good reminder that defendants need solid expert opinions, both medical and vocational, that support a finding that a claimant is capable of participating in some form of employment. It is not enough to merely attack the credibility of claimant’s expert witnesses. It is also helpful to have a detailed understanding of claimant’s job history, educational background, and daily activities, including volunteer activities.

Our team will continue to monitor extended benefits cases as they work their way through our court system. If you have any questions about extended benefits, contact a member of our workers’ compensation team.

For a more detailed list of practical takeaways when defending against extended benefits cases see our article Early Trends in North Carolina Extended Benefits Cases and How Comparable Jurisdictions in the Southeast Have Analyzed Similar Statutory Caps.