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.
By: Kelly Hamilton (Office Managing Attorney - Redding)
We've all been there . . . you file a Petition for Reconsideration and advise your client that we will have an answer within 60 days. Then, on day 59, the WCAB issues a "grant and study" order, which essentially gives them an indefinite time period to issue a decision. You are then in limbo potentially for years.
There has now been a Petition filed with the 2nd DCA arguing that the practice is unconstitutional on its face. They further argue that it violates the "compensation bargain" of California workers' compensation because it denies a speedy delivery of benefits. It is noted that some of the "grant and study" orders were issued within 10 days of the filing of the Petition for Reconsideration.
The article states that there have been over 500 "grant and study" orders issued in the last three years. In part this is due to the reduced number of commissioners, having been short anywhere from one to three commissioners. Currently there are six commissioners and there must be three on a panel to issue a decision.
Read more on the Hanna Brophy website:
https://highlights.hannabrophy.com/post/102hkbe/2nd-dca-to-evaluate-constitutionality-of-grant-study-orders
Written by: Julia Hooten
Employers and adjusters in North Carolina have encountered the seven-day waiting period requirement when an employee is injured on the job and is out of work. While seemingly clear and straightforward, actual application of the seven-day waiting period to certain occupations or situations can be daunting.
In North Carolina, the first seven days of disability are not payable to an injured employee unless that injury results in a disability of more than twenty-one days.
N.C. Gen. Stat. §97-28, the statute governing the seven-day waiting period, specifies:
“No compensation, as defined in G.S. 97-2(11), shall be allowed for the first seven calendar days of disability resulting from an injury, except the benefits provided for in G.S. 97-25. Provided however, that in the case the injury results in disability of more than 21 days, the compensation shall be allowed from the date of the disability. Nothing in this section shall prevent an employer from allowing an employee to use paid sick leave, vacation or annual leave, or disability benefits provided directly by the employer during the first seven calendar days of disability.” [emphasis added]
But what if the injured employee is someone who works twenty-four-hour shifts, and what if the days missed are not consecutive? Or, what if the employer continues an employee’s salary, does that count toward the waiting period? Let’s take a deeper dive into these frequently asked questions related to the seven-day waiting period.
First, let’s examine the seven-day waiting period for an employee who may work irregular hours or a longer shift. In the situation of an employee who works twenty-four hour shifts fewer days per week rather than the standard work week of five days, the employer and adjuster should be thinking in hours instead days. In this situation, if the twenty-four-hour shift employee misses more than forty hours, then they would be eligible for total indemnity benefits if they missed more than the hourly equivalent of twenty-one days (840 hours).
Likewise, if an employee is disabled for more than twenty-one days because of the work injury, regardless of whether those days are consecutive, the employee is entitled to the waiting period.
If an employee misses more than twenty-one days as a result of a work-related injury, the employee would be entitled to the initial seven-day waiting period, but additional payment would not necessarily be owed since salary was continued.
In contrast, if an employee used sick pay for that first week of disability and was later out for more than twenty-one days, the employee would have to be reimbursed – paid weekly indemnity benefits – for that initial period.
When thinking about when the seven-day waiting period begins, employers and adjuster should confirm whether the employee was paid for the date of injury. If the employee was paid, then the waiting period begins the next workday when the employee was scheduled to return to work. If they were not paid for that workday, it begins on the date of injury.
Similarly, if an employee is partially disabled as a result of the work injury, they may still be entitled to the waiting period if unable to work a full work week. In that case, the employer or adjuster would compare the employee’s post-injury reduction in hours. If the employee misses more than the hourly equivalent of twenty-one days, they are entitled to the initial waiting period.
Is an employee, who was not disabled but ultimately receives a rating which exceeds three weeks/twenty-one days, entitled to the waiting period? Simply put, yes. If the permanent disability is more than twenty-one days in and of itself or if the permanent disability is more than twenty-one days when added to the period of temporary disability, the employee is entitled to payment for the initial seven-day waiting period.
Navigating whether an employee in North Carolina is entitled to the waiting period in certain circumstances can be less than clear for employers and adjusters. It helps to keep accurate records of the employee’s post-injury work schedule and earnings. Be mindful that even with diligent recordkeeping, questions can arise.
If you have questions about the seven-day waiting period, or other aspects of a workers’ compensation claim in North Carolina, reach out to Julia Hooten or a member of our Workers’ Compensation team.
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Written by Matt Flammia
In North Carolina, most COVID-19-related workers’ compensation cases are rightfully being denied. The thought initially with COVID-19 claims, and still to a degree with the Delta variant, was that while a claimant will have a difficult time establishing a compensable claim, there are several occupations (i.e., health care workers, first responders, etc.) that could have some compensable situations. However, with the spread and infection rate of the Omicron variant, there is an argument to be made that no COVID-19 claims are compensable at this time and that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.
For COVID-19 workers’ compensation claims in North Carolina, a claimant has the burden of proving: (1) That they were at an increased risk of contracting the virus when compared to members of the general public; and (2) a causal connection between their specific infection and their employment. In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant’s employment must have placed them at an increased risk of contracting COVID-19.
We are close to two years since the beginning of the pandemic and there still has not been a filed decision from the North Carolina Industrial Commission on the compensability of a COVID-19 claim. This speaks to how the COVID-19 claims are being handled in North Carolina.
Based on recent numbers from the North Carolina Industrial Commission, there have been approximately 5,364 COVID-19 claims filed with either a Form 18 or Form 19. Of those, approximately 40% have no response to the filed Form 19. Of the remaining 3,252 claims that do have some type of a response, it appears that approximately 65% of them were denied with a Form 61; approximately 13% were accepted on a Form 60; and approximately 21% were paid pursuant to a Form 63, without prejudice. In comparison to prior pandemic figures, it appears that the Form 61 denial rate has increased slightly.
Looking ahead, the denial rate likely will increase as additional Omicron variant claims are filed. Simply put, as the transmissibility of the COVID-19 variants increases, there is less of an increased risk in most employment settings, except for limited situations. Compared to the start of the pandemic, contact tracing has become impossible as individuals are more active, and masks have become optional throughout the State of North Carolina. For these reasons, we contend that COVID-19 should now be considered an ordinary disease to which the public is generally exposed and argue that almost no COVID-19 claims are compensable at this time.
If you have questions about the compensability of COVID-19, or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.
