State News

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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New Jersey lawyer and nationally recognized workers’ compensation guru, John Geaney recently posted a COVID-19 Q&A on his award winning Blog site.  The questions are certainly relevant nationally and so the following are Alabama specific answers.

 

Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?

Answer: No, but the employee will likely be entitled to unemployment benefits. 

 

Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus?  Must the employer pay workers’ compensation benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

 

Question 3: What if the government shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no work available from home. Does the employer owe workers’ compensation benefits?

Answer:  No, but the employee will likely be entitled to unemployment benefits. 

 

Question 4: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

 

Question 5: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

 

Question 6: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Chris is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Chris just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.  Further, in Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”  Therefore, for COVID-19 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.  It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

 

Question 7: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus.  So far all the tests have been negative.  The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized.  She files for workers’ compensation benefits for her lost time and medical bills.  Is she entitled to workers’ compensation benefits?

Answer:   Probably not.  See answer to #6.

 

Question 8: Given that tens of thousands of employees are now working from home in Alabama due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?

Answer:  The Alabama Workers’ Compensation Act does not specifically address telecommuter/home based workers and there are not currently any high court opinions in Alabama addressing the issue.  Courts in other states have distinguished telecommuters from individuals who may just happen to be performing work at home on a given day.  In those states, once it was established that the employee and employer entered into a telecommuting arrangement, the hazards of the home were considered to be work place hazards.  Written telecommuting agreements that dictate hours of employment, areas of the house that are considered work space, and rules concerning prohibited activity are recommended to help employers and employees know what is and is not considered work activity. 

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.

 

The Alabama Department of Labor Workers’ Compensation Division seminars scheduled for April 9th in Orange Beach and April 23rd in Birmingham are cancelled.  Per Director, Steve Garrett, they are actively working on securing alternate dates.  Stay tuned.  We will post the new dates as soon as they are available.

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.

 

On March 18, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order setting forth temporary rules regarding workers’ compensation settlements.  Per the Order, the following rules will be in effect through April 16, 2020:

 

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

 

The above referenced Order was issued in the wake of a March 13, 2020 Order that suspended all in-person court proceedings through April 16, 2020.  

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.

 

On March 18, 2020, the Director of the Alabama Department of Labor (ADOL) Workers’ Compensation Division, Steve Garrett, released a Memorandum concerning the Ombudsman Program.  ADOL  Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties.  Per the Memorandum, the ADOL is constantly monitoring the ongoing developments of COVID-19 and the effect it’s having on the ADOL and the services it provides.  Although the Ombudsman Program is continuing to operate, the ADOL is making the following modifications to the procedures normally in place.

 

  1. Whenever possible, the ADOL is asking attorneys, employers and claimants to postpone any previously scheduled mediations and benefit review conferences that are currently set through April 6, 2020. This date may be extended, however, due to COVID-19 related restrictions still in place at that time.

 

  1. For any mediations or benefit review conferences that cannot be rescheduled, the ADOL is asking for those mediations to be held by telephone whenever possible. There are no waivers currently in place from the Alabama Supreme Court that would allow for mediations or benefit review conferences with pro se litigants to proceed without the required notarized advisements under Ala. Code §25-5-290(f)(1). The advisement of the pro se litigant’s right to be represented by counsel and of his or her right to have any settlement reviewed must still be followed with notarized signatures.

 

  1. If either of the above options is not possible, then the ADOL requests that any face-to-face mediations be held only in offices that allow for social distancing as recommended by medical professionals and to monitor the presence of any participant that may meet one of the high-risk criteria (i.e. those with compromised immune systems, etc.)

 

To reschedule mediation dates or to alter plans for scheduled mediations during this time, it is asked that you contact your ombudsman.  For a list of ombudsman with contact information and the areas of the state that they cover, please e-mail me at mfish@fishnelson.com and I will be happy to send you one.   

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.

 

In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”

 

Therefore, 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 generaland that it is peculiar to the employee’s occupation. 

 

It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

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 Court Appearances Temporarily Suspended

 

On March 13, 2020, the Alabama Supreme Court issued an administrative order which suspended all court appearances for 30 days.  On March 15, 2020, the Court issued a second order which clarified that the first order only applied to in-person court proceedings.   

 

Alabama Department of Labor Ombudsman Availability

 

The Alabama Workers’ Compensation Reform Act of 1992 established an Ombudsman Program.  Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties.  Currently, it has been left up to the individual ombudsmen whether or not they wish to travel or attend in person mediations or benefit review conferences.

 

-------------------------

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.

 

Legal Update by Attorneys Nick Cooling & Alison Stewart

Iowa Workers’ Compensation Commissioner Responds to Coronavirus

On Friday, March 13, 2020, Iowa Workers’ Compensation Commissioner Cortese filed anOrder responding to Coronavirus concerns. In-person hearings will be suspended beginning March 18, 2020 and continuing through June 16, 2020. During this time period scheduled hearings will be held using CourtCall, the agency’s video hearing technology. Fees for the service will be covered by this agency.

For any compensability questions relating to contraction of Coronavirus by Iowa employees, please contact any of the Peddicord Workers’ Compensation Attorneys to discuss further. Analyzing these situations on a case-by-case basis is appropriate.

Shoulder Definition Clarified

The agency filed two arbitration decisions clarifying how the agency defines the shoulder. Recall that the shoulder was added to the schedule in July 2017 and has been compensated based upon 400 weeks since that time. A scheduled member injury has been limited to the impairment rating of an expert.

The decisions are Chavez v. MS Technology, LLC,File No. 5066270 (Feb. 5, 2020) and Deng v. Farmland Foods, Inc.,File No. 5061883 (Feb. 28, 2020). We expect the decisions to be appealed. In light of these decisions, however, the current agency law is that where the injury to the shoulder extends into the proximal portion of the shoulder joint (the portion nearer to the center of the body), it is a body as a whole injury and an industrial disability analysis may be appropriate. The agency cited pre-legislative change cases where the shoulder was defined as the ball and socket between the arm (humerus) and the trunk (scapula), which is medically called the glenohumeral joint. The agency then reasoned that the legislature was aware of this definition when they drafted the 2017 amendment and found that injuries extending into the body side of the glenohumeral joint are body as a whole injuries. Consider the below diagram for additional context relating to the anatomy of the shoulder:


 Importantly, any time the injury extends into the proximal portion of the shoulder joint, including where the surgery performed involves a distal clavicle resection (which is where the surgeon shaves the tip of the clavicle), we can expect the agency to find a body as a whole injury since the clavicle is proximal to the glenohumeral joint. The cases cited in theChavez decision in arriving at the shoulder definition now being applied by the agency specifically identify the distal clavicle as part of the body as a whole. The agency will likely then apply an industrial disability analysis where the Claimant has not returned to work, with the same hours and earnings. If there is a return to work, we would expect the agency to apply a body as a whole rating to 500 weeks like they would for a typical body as a whole injury with a return to work.

Additionally, in the Deng case, penalty benefits were awarded where Defendants did not pay permanency following an IME report from Claimant’s expert containing a permanency rating, despite the authorized treating physician not yet placing the claimant at MMI or assigning impairment. The deputy found that since the authorized treater provided permanent restrictions after a valid FCE, this was the equivalent to MMI, even though the treating doctor didn’t come out and say that in his report. Penalty was awarded from the date that permanent restrictions were provided, not the MMI date in Claimant’s IME report.

These decisions may be appealed, but we will not know the outcome of any appeal(s) for more than a year.

Iowa Supreme Court Reduces Punitive Damages Award in Bad Faith Case

Thornton v. American Interstate Insurance Company, arising out of a compensable work injury where the carrier delayed benefits owed, the Iowa Supreme Court of Iowa recently took up the issue of the level of conduct necessary to justify an award of punitive damages in a bad faith case. Ultimately the punitive damages were reduced, however, the decision did not provide a definitive ratio between punitive and compensatory damages. However, it is instructive as to the level of conduct that will justify certain awards for punitive damages.

 

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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. ©2020 Peddicord Wharton. All Rights Reserved.

This article discusses the likelihood that employee exposure to COVID-19 at work may result in a recognized work-related injury/illness.

H&W New York Workers' Compensation Defense Newsletter
Vol. 4, Issue 4

H&W Publishes White Paper on Coronavirus and New York Workers' Compensation

Many of our clients have had questions regarding the novel coronavirus (COVID-19) and whether the contracture of COVID-19 by an employee is compensable in New York State. Yesterday, we published awhite paper that provides an analysis of relevant case law and Board decisions to assist in determining whether or not to controvert a claim for COVID-19, or whether, once controverted, a claim is likely to be established or disallowed. Our paper also provides recommendations should you receive a such a claim, and links for instruction on preventative measures.

Our white paper is available for download here. For any questions or concerns on this topic, please do not hesitate to contact our partnersMelanie M. Wojcik at (716) 854-1539 or David L. Snyder at (585) 568-8314.

Appellate Division Allows PPD Award to Continue After Death

On 3/5/20 the Appellate Division, Third Department decided Green v. Dutchess County BOCES. In what can only be described as an astonishing decision, the court held that when a claimant with a capped permanent partial disability (“PPD”) dies for reasons unrelated to established injuries, any remaining weeks on the PPD cap are payable to the deceased claimant’s surviving relatives enumerated in WCL §15(4). We believe this decision is wrongly decided and fails to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards.
 
In this case, the deceased claimant had 38.8 weeks remaining on his PPD cap at the time of death. The deceased claimant’s son requested payment of those remaining 38.8 weeks. The Board held that the death resulted from non-causally related reasons, and that no permanent partial disability awards were payable after the date of death because the claim had abated. Claimant’s son appealed to the Appellate Division, arguing that the remaining weeks were payable pursuant to WCL § 15(4).
 
The relevant portion of WCL §15(4) states, "an award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of [enumerated surviving relatives]." The court’s decision states, "Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonscheduled permanent partial disability award is payable to the beneficiaries identified in [§15(4)] upon a claimant's death arising from causes other than the [established] injury."  (internal quote marks omitted).  
 
The court stated, "[§15(4)] neither distinguishes SLU awards from nonscheduled permanent partial disability awards, nor contains any limiting language excepting nonscheduled permanent partial disability awards from its scope." The court rejected the notion that upon a non-causally related death, there is no longer a causally-related reduction in wages attributable the nonscheduled permanent partial disability.  
 
We believe the court’s decision fails to correctly interpret the crucial word, “award,” in §15(4). For PPD claims, there can be no "award" of indemnity benefits without causally related lost time / lost wages. If there is no “award” then there is nothing to pay out under §15(4). The court’s decision appears to assume that capped permanent partial disability awards automatically become payable at the time of classification, which has simply never been the case.  
 
Over the years, the Appellate Division, and New York’s highest appellate court, the Court of Appeals, have issued many decisions stating that a claimant cannot receive indemnity awards in non-SLU cases for periods of lost time / lost wages that are not causally related to the established injury. See e.g..  Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186 (2012); Burns v. Varriale, 9 N.Y.3d 207 (2007); Florentino v. Mount Sinai Medical Center, 126 A.D.3d 1279 (3d Dept., 2015); German v. Target Corp., 77 A.D.3d 1126 (3d Dept., 2010); Thompson v. Saucke Brothers Construction, Inc., 2 A.D. 3d 993 (3d Dept., 2003); Turetzky-Santaniello v. Vassar Brothers Hospital, 302 A.D. 2d 706 (3d Dept., 2003); Tisko v. General Aniline & Film Corp., 27 A.D.2d 619 (3d Dept., 1966); Roberts v. General Electric Company, 6 A.D.2d 43 (3d  Dept.,1958).

Unlike schedule of loss of use awards, which are payable regardless of whether the claimant has any lost time or lost wages, permanent partial disability awards have always been contingent on the claimant having lost time or lost wages causally related to an established injury. Even when a permanent partial disability award is under a direction for a carrier/employer to continue payment pursuant to Rule 300.23(c), such a direction does not mandate that the Board direct “awards” after a claimant’s death (in the absence of an established death claim). Rather, in the absence of an established death claim, the non-causally related death of a claimant has always been considered an ultimate and final severance of the causal nexus between the established work injuries and lost time/lost wages.
 
In support of its holding rejecting the requirement for causally related lost time/lost wages, the court highlighted a series of Board Panel decision's describing capped PPD awards as a "real benefit that vests with [a] worker upon classification." (Internal quote marks omitted). However, the manner in which the Board characterizes capped PPD awards in Board Panel decisions does not overrule well-established Court of Appeals and Appellate Division case law requiring causally related lost time / lost wages to support permanent partial disability "awards."  Astonishingly, the court’s decision does not cite, or in any way attempt to distinguish, any of its previous decisions referenced above, or the Court of Appeals’ decisions. The last several paragraphs of its decision suggest that the court's holding is based on a desire to avoid perpetuating what it perceives as unfair distinctions between schedule of loss of use and permanent partial disability awards, which it states the legislature aimed to eliminate with the 2007 statutory revisions. In support of this reasoning, the court cites language from the Court of Appeals’ decision in Mancini v. Office of Children and Family Services, stating that the 2007 statutory revision creating capped PPD awards modified PPD awards to be similar to schedule loss of use awards. While this is true in a general sense, the statutory revisions did not do away with the requirement for causally related lost time/lost wages for permanent partial disability awards, and until now, no legal authority has suggested that this requirement no longer exists. The only similarity between capped PPDs and schedule loss of use awards is that each uses a statutorily defined number of weeks. The legal eligibility requirements for PPD and SLU awards has always differed, and the body of case law surrounding these two types of awards acknowledges those differences. When the superficial layer of similarity is peeled back, capped PPD and SLU awards differ in significant substantive ways. It appears the court has mistaken a superficial similarity as a legislative mandate for wholesale judicial revision of the law governing a claimant’s eligibility for PPD awards.
 
The court’s decision includes language suggesting that a claimant's eligibility for permanent partial disability awards results from the mere act of classification with a permanent partial disability combined with the finding of a wage-earning capacity/loss of wage earning capacity. However, this is inconsistent with previous decisions from the court stating that the loss of wage earning capacity sets the duration of the cap for PPD awards, and that the wage earning capacity (as opposed to the loss of wage earning capacity) is a number which is used to determine the payment rate for non-working claimants. Rosales v. Eugene J. Felice Landscaping, 144 A.D.3d 1206, (3d Dep’t 2016); Till v. Apex Rehabilitation, 144 A.D.3d 1231 (3d Dep’t 2016). A non-waivable prerequisite for PPD awards has always been causally related lost time or lost wages.
 
It remains to be seen whether the self-insured employer in this case will seek leave to appeal to the Court of Appeals. 

Appellate Division Reverses Board's Jacobi Decision

On 02/20/2020, the Appellate Division, in Sanchez v. Jacobi Medical Center, reversed the Board's decision from a little over a year ago (Jacobi Medical Center, WCB #00825967 (02/11/2019)), which ruled that post-classification awards at total count towards the cap on permanent partial disability benefits. Jacobi was a favorable Board Panel decision for the defense bar because it allowed us to argue that awards following the claimant's classification with a permanent partial disability should be limited to the permanent partial disability rate and also argue that such awards always be subject to the cap on permanent partial disability benefits under WCL §15(3)(w).

InSanchez, the court noted that WCL §15 allows the claimant to be classified under one and only one of the four categories of disability (permanent total, temporary total, permanent partial, or temporary partial) at any given time. The court felt that the Legislature's silence on whether non-schedule awards for permanent partial disability should include preceding or intervening periods of temporary total disability was a purposeful legislative choice to not include any periods of temporary total disability in non-schedule awards. Accordingly, the court felt that the Board in Jacobi should have ruled that the duration of the claimant's permanent partial disability non-schedule award should have been tolled during the post classification award of temporary total disability benefits. The court also held that awards for temporary total disability after a PPD classification should be at the total rate. 

This decision leaves us with two rules moving forward: 1) post classification awards of temporary total disability do not count against the claimant's durational limit (cap) on permanent partial disabilities for awards on cases with a date of injury before 4/10/2017 and 2) the claimant can apply for reclassification of his or her disability status at any time.

Parenthetically, we note that it is our belief that the court’s decision does not impact the interpretation of the credit for temporary partial disability awards created for claims with dates of accident on and after 4/10/17 in WCL section 15(3)(w). Pursuant to the plain language of that statutory provision, all temporary partial disability awards made after 130 weeks of temporary partial payments in post-4/10/17 claims should be subject to a credit against the PPD cap.

Court Affirms in Three Decisions the Taher Rule that Claimant May Receive Both SLU and PPD in the Same Case at the Same Time

On 2/27/20 the Appellate Division, Third Department, decided Arias v. City of New York, Saputo v. Newsday LLC, and Fernandez v. New York University Benefits. These decisions squarely hold that the Court’s previous decision in Taher v. Yiota Taxi is controlling, and that a claimant may receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time. It is unclear as of this writing if this decision will be appealed to New York’s highest appellate court, the New York Court of Appeals.

After the Appellate Division issued its previous decision in Taher, the Board and the workers’ compensation defense bar both took the position that it was incorrectly decided and should not be followed. The Court’s new decisions in Arias, Saputo, and Fernandez. reject that argument. In particular, the Court rejected the argument that the 2018 schedule loss of use guidelines warrant departure from the Taher decision. The Court stated that language in the 2018 schedule loss of use guidelines requiring no residual impairment in the systemic area of the injury before a schedule of loss of use award can be made is ambiguous and therefore does not automatically require one form of permanent disability finding over another.

The take away from these decisions is that, for the time being, unless the New York Court of Appeals reverses them, claimants may receive both a schedule of loss of use award and a permanent partial disability classification in the same case at the same time, and may receive a lump-sum schedule loss of use award payment as long as they are not losing time or wages from work.

Court Rules that Reduction of Employer Reimbursement to Cover Attorney Fee in SLU Award Improper Because It Resulted in Windfall to Claimant

In Enoch v. New York State Department of Corrections and Community Supervision, decided by the Appellate Division, Third Department, on 1/30/2020, the Court ruled that the Board correctly allowed a carrier to reduce a claimant's schedule loss of use award by the amount of outstanding employer reimbursement remaining where there was sufficient money moving on the SLU to pay for both the claimant's attorney's fee and provide for the remaining reimbursement.

The court stated that “Continuing to reduce the employer's reimbursement credit by the counsel fee award after claimant received his schedule loss of use award would result in a windfall to claimant, essentially making the employer subsidize a portion of claimant's legal expenses."

The claimant in Enoch injured his right knee during a training activity and filed a workers’ compensation claim. While he was off work, the employer paid the claimant his regular wages and filed a claim for reimbursement of those wages with the Board. In 2017, the Board awarded the claimant benefits payable as a credit to the employer to partially reimburse it for the wages paid. The claimant's attorney was paid $700 as a lien on the employer's wage reimbursement credit.

A workers’ compensation law judge ("WCLJ") found that the claimant had a 20% schedule loss of use ("SLU") of the right leg and directed reimbursement to the employer for remaining wage reimbursement request. The carrier filed an Application for Board Review because the WCLJ reduced the employer's reimbursement credit by the amount of the previous $700 attorney fee.

The Board ruled that the employer was entitled to full reimbursement of wages paid at the time of the SLU award without any reduction for attorney fees. The Board modified the WCLJ's decision by directing that the fee be paid out of the claimant's portion of the SLU award.

The Appellate Division reasoned that when the Board initially made the award of counsel fees payable as a lien on the claimant's reimbursement credit, he was receiving temporary total disability payments, and the employer's reimbursement credit was limited to the amount of the payments and at that time, the employer' wage reimbursement was the source from which the attorney could be paid.

Once the claimant was awarded a SLU, however, there were sufficient funds from which the employer could receive full reimbursement of the wages paid to the claimant during his period of disability, leaving him with an excess from which counsel fees could be paid.

This decision from the Appellate Division ensures that employers will be able to secure full reimbursement of wages paid in lieu of compensation in most cases.

Court Affirms Genduso Decision Holding that SLUs Reduced by SLU Award to Same Limb, Even if Different Part of Limb

On 2/6/2020, the Appellate Division, Third Department, decided Johnson v. City of New York. This decision reaffirms the court’s previous holding in Genduso v. New York City Dept. of Education (2018) that a claimant’s schedule loss of use award will be subject to an automatic deduction for previous schedule loss of use awards to the same limb (hand, foot, arm, leg, etc.). This decision also squarely holds that schedule loss of use awards are made only for the specific body members enumerated in the statute (WCL §15(3)(a) through (l)). This means that a claimant cannot receive separate schedule loss of use awards for sub-parts of the same body member, such as the knee and hip of the same leg. In cases where multiple sub-parts of the same body member are injured, the schedule loss of use award must be calculated only for the body member as a whole. That schedule loss of use award then is subject to an automatic deduction for any previous schedule loss of use awards to the same body member.

The facts in Johnson involved a claimant with an overall 80% loss of use for his left leg and an overall 40% loss of use for his right leg based on hip and knee injuries. The Board deducted a previous 50% schedule loss of use award for the left leg and a previous 52.5% schedule loss of use award for the right leg. This resulted in a functional 30% loss of use payable for the left leg and a 0% loss of use payable for the right leg. Claimant appealed, and the court affirmed, citing Genduso and Bell v. Glens Falls Ready Mix Co., Inc., holding that:

"SLU awards are . . . limited to only those statutorily-enumerated members listed in Workers’ Compensation Law §15(3) . . . In this regard, to authorize separate SLU awards for a body member’s sub-parts is not authorized by statute or the guidelines and would amount to a monetary windfall for a claimant that would compensate him or her beyond the degree of impairment actually sustained to the statutorily-enumerated body member." (Internal citations omitted)

The court also held that the Board properly deducted the previous schedule loss of use awards automatically from claimant’s overall schedule loss of use assessments.

The Johnson decision shows that Genduso is not an anomaly and will be applied by the court as controlling authority. The practical impact is that claimants can no longer receive separate schedule loss of use awards for multiple injuries to the same limb (knee and hip for the leg, shoulder and elbow for the arm, etc.). In such cases, the schedule loss of use would be payable only for a single leg or arm, respectively. Likewise, automatic deduction for previous schedule loss of use awards to the same body member applies even if the previous schedule loss of use award was for a different sub-part of that body member.

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buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

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Dear Clients:

             We are continuing to monitor the Corona Virus (COVID-19) outbreak, and we want to take a moment to reach out and let you know that we are handling this developing situation at ConnorsO’Dell, as responsibly as possible, noting that our main priority is to insure the health and safety of our staff and our clients.

             Safety being our top priority, we are implementing the following:

 ·         We are taking every precaution possible, to include conducting extra cleanings of our offices, and frequently touched surfaces.

·         We have implemented screening measures to insure the safety of our staff and clients, and we have postponed most in-person appointments, and, to the extent available, are engaging in remote consultations and appointments.

·         We have instructed our staff that if they are not feeling well or are still recovering from illness, we have asked them to self-isolate, for the protection of all.

·         As of 3/16/20, we will also be working remotely for safety.

In reliance upon CDC recommendations, we suggest the following:

 ·         Wash your hands often with soap and water for at least 20 seconds.

·         Always cover your mouth when coughing and sneezing.

·         Maintain social distancing of 3 feet or more between yourself and other persons.

·         Avoid touching your eyes, nose and mouth with unwashed hands.

·         Clean and disinfect frequently used surfaces.

·         Get medical attention early if you have a fever, cough, or difficulty breathing.

·         Mild symptoms should seek medical care and stay home until recovered, if possible.

Please reference the CDC website for the latest updates about the Corona Virus (COVID-19).

We remain vigilant in representing the interests of our clients in this challenging situation facing our communities.

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