State News

On February 26, 2021, the Alabama Court of Civil Appeals released its opinions concerning three petitions for mandamus that arose out of an action for contempt.  Specifically, the plaintiff was awarded permanent and total disability benefits in a 2012 lawsuit against his employer.  In 2020, the employee filed a post judgment motion for contempt due to the alleged systematic late payment of his weekly benefits.  Although the lion’s share of the opinion addressed procedural and jurisdictional matters not specific to workers’ compensation, Judge Terry Moore pointed out, in his dissenting opinion, that the Legislature already provided for a remedy when indemnity payments are delayed.  Alabama Code § 25-5-59(b) provides for an automatic 15% penalty if any indemnity payment that is owed is not paid within 30 days.  Further, § 25-5-86(1) provides that, if an employer defaults on its obligation to pay indemnity benefits, the employee can petition for the remaining payments to be accelerated, reduced to present value, and paid in lump sum.  As such, it was Judge Moore’s opinion that the Alabama Workers’ Compensation Act precludes an employee from using a contempt proceeding as an additional remedy when indemnity payments are not timely made.

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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 Industrial Commission recently passed a number of rule changes which were scheduled to go into effect on two different dates.The first set of rule changes went into effect on December 1, 2020.

The rules that went into effect on December 1 included changing the medical charge threshold from $2,000 to $4,000 to dictate when employers need to file the first report of injury, or Form 19. There were also changes made concerning claims for death benefits, which allow the parties to either submit a Form 30 Agreement for Compensation for Death, or a proposed Opinion and Award. Another change provided that payment for a permanent disability will not be approved if claimant has returned to work with the defendant-employer and has permanent work restrictions, unless a job description is also provided as part of the filing. Finally, the last change was to the Form 90 Report of Earnings and dictates that form can only be served when defendants are paying ongoing temporary total disability or temporary partial disability benefits, and Defendants are now able to serve the Form 90 via e-mail, facsimile, certified mail, or any other method that provides proof of receipt.

The next set of changes go into effect on March 1, 2021.

Some of the rule changes provide updates to filing requirements. Specifically, these changes show that the Commission is working to make full use of the Electronic Document Filing Portal (“EDFP”). A number of documents that were previously exempt from EDFP filing, like the Notice of Appeal to the Court of Appeals, can now be filed via EDFP. These rule changes were delayed to an effective date of March 1, 2021, to coordinate with the rollout of the Commission’s new case management system. The new system was released in early 2021. Rule 11 NCAC 23A.0109 has now been updated to reflect changes in the contact information required to be provided to the Commission by the parties. This rule has been amended to streamline the provision of contact information by the parties, to make it easier for the Commission to reach the parties if necessary. Specifically, updated contact information can be provided via EDFP, or by email tocontactinfo@ic.nc.gov.

A change was made to 11 NCAC 23G .0104 to change the “physical attendance” requirements to remote requirements. "Attendance" is now defined as in-person whenever the mediation rules approved by the North Carolina Supreme Court require it. The rule now allows for the in-person requirement to be excused or modified by agreement of the parties. Further, the attendance requirement will be met with remote technology when the mediation rules approved by the North Carolina Supreme Court require attendance via remote technology. The rule also provides that all parties shall comply with public health and safety requirements in effect at such time of the mediation. This rule was revised in light of the ongoing COVID-19 crisis, and the ongoing need to have mediations via Zoom or WebEx.

Moving forward, we encourage our clients to be aware of these rules, particularly those concerning ongoing changes regarding the COVID-19 pandemic, which change often. To view an annotated copy of the rules effective March 1, 2021,click here.

If you have any questions in regards to the rule changes, feel free to reach out to a member of our workers’ compensation team.

In 1979 the New Jersey legislature adopted a change to N.J.S.A. 34:15-7 to add that recreational and social activities are not compensable unless the injured worker could prove that the activity promoted a benefit to the employer beyond improvement of health and morale.  Prior Supreme Court cases have already made clear that if an employer compels attendance at a social or recreational event, then an injury during a social or recreational activity will be found to be compensable.  But it has taken over 40 years for a case to get to the Supreme Court which defines what constitutes a social and recreational activity in the first place, and what sort of activities satisfy the standard of proof of a benefit beyond improvement of health and morale.  Last week’s Supreme Court decision in Goulding v. NJ Friendship House, Inc., (A-48-19) provides very helpful answers.

The key facts are simple.  Goulding was an employee of North Jersey Friendship House, Inc., which is a non-profit that assists individuals with developmental disabilities.  She worked Monday to Friday as a chef/cook, and she cooked meals for Friendship House’s clients, as well as teaching vocational classes.

Goulding was injured on Saturday, September 23, 2017 when Friendship House hosted its first “Family Fun Day.”  It planned to host this event annually going forward. The stated purpose of the event was to offer a fun and safe environment for the clients of Friendship House and their families.  As such, Friendship House asked for volunteers to work the event.  Employees were under no obligation to attend the event.  Goulding volunteered.

Goulding arrived between 8:30 and 9:00 a.m. and started setting up for breakfast.  After breakfast was concluded, she began preparing for lunch.  She injured her ankle when she stepped in a small pothole in the parking lot and fell.  Several people assisted her in getting up and helping her ice her foot.  She continued working, helping the other cooks prepare lunch.  She never participated in any of the games or activities at the event, and she left around 2:30 p.m.

A claim petition was filed as well as a motion for medical and temporary disability benefits. Goulding sought surgery to repair her injured ankle as well as temporary disability benefits from the date of her injury.  Both the Judge of Compensation and the Appellate Division found against petitioner.  The Judge of Compensation ruled that Family Fun Day was a social and recreational event. The Judge found that there was no proof that this event “was a regular incident of employment.”  The Judge observed that petitioner volunteered to participate and was not pressured to do so. Finally, the Judge found that there was no proof of a benefit to Friendship House beyond improvement of health and morale.  For much the same reasons, the Appellate Division affirmed.

The New Jersey Supreme Court granted certification.  Goulding argued before the Supreme Court that she was there to work and was never engaged in any recreational or social activities. She also argued that even a first annual event can be considered to be a regular incident of employment.  She added that there was a benefit beyond improvement of health and morale for Friendship House because the event furthered the mission of the non-profit in providing services to clients and their families. 

For its part Friendship House argued that the law does not apply to those who truly volunteer and have no expectation of financial consideration.  Friendship House also argued that this situation was unlike those cases where the Supreme Court found coverage because an employee was compelled to perform some task.  There was no compulsion in this case. Finally, Friendship House argued that this was not a fundraiser and there was no benefit to Friendship House beyond improvement of health and morale.

The Supreme Court first observed that just because an activity is non-compulsory does not mean that it must be considered a social or recreational activity.  The Court found that Goulding was working at the event and as to her, the event was not a social or recreational activity. The Court said, “In contrast to prior cases where the employees were participating in the social or recreational activity – playing softball, golfing, or attending a picnic – Goulding was facilitating Family Fun Day by cooking and preparing meals for clients of Friendship House, just as she does in her regular employment. Accordingly, Family Fun Day, as to Goulding, was not a social or recreational activity.  And, because Friendship House has advanced no other applicable exception under the Act, Goulding’s injuries are compensable.”

Next, the Court tackled the language of the statute itself.  The Court concluded that even if Goulding’s activities were considered social or recreational, she met the statutory exception.  The Court viewed the event as a regular incident of employment because it was sponsored by Friendship House and because it was planned to be an annual event.  The more difficult question was whether there was a benefit to Friendship House beyond improvement of health and morale. The Court highlighted the following points:

*  There was nothing in the trial record suggesting employees and their own families were invited to attend as guests;

*  The event’s purpose was “celebrating clients or members, their families, and the community.”

*  Friendship House received the “intangible benefits” of promoting itself and fostering goodwill in the community

*  The experience enjoyed by the clients and their families constituted “a separate benefit in and of itself.”

There is a fundamental problem with the Court’s primary holding that Ms. Goulding was working during this event and not engaging in a social or recreational activity.  The logical conclusion of the decision that Goulding was working at the Fun Day event brings into play the Fair Labor Standards Act. The Court observed that Goulding did not participate in any fun activities but it failed to address the elephant in the room — whether Friendship House was required to pay Goulding and other non-exempt cooks like her who were doing their regular jobs.  If they were truly working, of course they would have to be paid.

More than likely Ms. Goulding volunteered to cook and probably had no expectation of being paid. She probably felt her contribution to the event would be better served by cooking and interacting with clients in that manner, as opposed to playing games with clients. She could have changed her mind at any point or she could have done both.  The case will have the negative effect of deterring employers from hosting positive events like this Family Fun Day event because the employer will have to figure out ahead of time who will be working and who will not be and then pay those volunteers who were considered to be working.  Employers will also have to keep accurate time records in order to make correct payments.

The Court’s alternative analysis was the right one.  Petitioner was able to meet the statutory exception to the law in N.J.S.A. 34:15-7.  In this practitioner’s view, petitioner was involved in a social and recreational activity and was not working.  She proved to the Supreme Court that there was a benefit to Friendship House greater than improvement in health and morale.  The Court therefore concluded that she should therefore be covered for workers’ compensation purposes.  This analysis avoids the FLSA issue for future employers who host events like this.

For employers, practitioners and judges, the focus should be now on whether the goal of the employer-sponsored activity is targeted to serving clients and promoting business opportunities as opposed to promoting health and morale of the employees through an employee softball game or an employee picnic, for example.  If the objective is to reach out to the community at large and promote goodwill or company advertisement of its services, this case suggests that an injury to a volunteer during such an event will be considered compensable for workers’ compensation purposes. If the purpose is just to promote health and morale of employees, the activity is not compensable.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Claimant was involved in a compensable work accident in 2001. She received total disability benefits until they were terminated in 2010. She received significant awards of lumbar and cervical spine permanent impairment. In 2020, Employer filed a Petition seeking to terminate ongoing narcotic medications and injections provided by Drs. Woo and Winas.

In accordance with the opinion of the defense medical expert, Dr. Townsend, the Board granted Employer’s Petition finding that claimant was required to wean over a 10-month period of time, and that injections were no longer reasonable, necessary, or causally related. The Board questioned claimant’s credibility as to whether her treatment was effective in improving her function, noting that despite extensive evidence that she was physically able to return to work for over 10 years, she never actually attempted to return to work in any capacity. The claimant was utilizing approximately 300 morphine milligram equivalents (“MME”) of narcotic medication per day, which was grossly in excess of limits of 90 MME set forth by the Centers for Disease Control. Supposedly effective injections never resulted in a reduction in narcotic medication levels. The Hearing Officer rejected arguments from the claimant as to the “stable” nature of the treatment course, commenting that “simply because Claimant has been on the same pain management regimen for an extended period does not guarantee that a continuation of such treatment remains reasonable, necessary, and causally related to the work accident.”

This Decision represents a continuation of a trend in Board decisions ordering weaning from narcotic medications, where not effective, even when the medications have been prescribed for many years.

Should you have any questions concerning this Decision or the compensability of chronic pain management treatment in general, please contactJohn Morgan or any other attorney in our Workers’ Compensation Department atHeckler & Frabizzio. 

Deborah Cantoni v. Delaware Park, IAB Hrg. No. 1213719 (Jan. 12, 2021).

Industrial Commission Policy Update on In-Person Hearings, Mediations, and Other Procedural Directives.

The North Carolina Industrial Commission has adopted an Emergency Rule that in turn allows the Industrial Commission to implement Emergency Orders and Directives of the Chief Justice of the North Carolina Supreme Court. In short, the Industrial Commission wants its operating structure to be in sync with, and operate consistently with, the civil system when it comes to holding hearings, mediations and other procedural directives from the Chief Justice. As of January 14, 2021, and consistent with the January 14, 2021 Order of the Chief Justice of the Supreme Court of North Carolina, all Industrial Commission mediations are to be conducted remotely, unless all parties and persons required to attend the mediation, including the mediator, agree to conduct the mediation in-person, or unless the Industrial Commission orders that the mediation be conducted in-person. Additionally, all Deputy Commissioner Hearings shall be conducted remotely via WebEx video conference, unless the Deputy Commissioner grants an in-person hearing upon a showing of good cause as to why an in-person hearing should be allowed. Full Commission hearings shall continue to be conducted via Microsoft Teams video conference.

Industrial Commission Appoints New Chief Deputy Commissioner and Deputy Commissioner

In November, 2020, Deputy Commissioner Tammy Nance was designated as the Chief Deputy Commissioner by Chair Phillip Baddour. Chief Deputy Commissioner Nance previously served as a Deputy Commissioner from 1987 to 1995. She was in private practice for several years representing both employers and employees in workers’ compensation matters and in 2011, returned to the Commission and served on the Full Commission until 2018. In 2019, Ms. Nance began serving as a Deputy Commissioner assigned to head up the Claims Administration Section.

Additionally, former representative Larry D. Hall, who most recently was serving as the Secretary of the North Carolina Department of Military and Veterans Affairs, was recently appointed as a Deputy Commissioner. Deputy Commissioner Hall represented Durham County in the North Carolina House of Representatives for 10 years and served as the House Minority Leader during his final four years.

Updates from Annual Industrial Commission’s Workers’ Compensation Educational Conference

Chair Philip Baddour provided an update at the North Carolina educational conference in October 2020. As of August 31, 2020, 1,508 Form 19’s had been filed listing COVID-19 and 119 Form 18’s have been filed listing COVID-19. Of the COVID-19 cases where a Form 60, 61 or 63 had been filed, 57% had been denied on a Form 61, 19% had been accepted on a Form 60, 18% had been paid without prejudice on a Form 63, section 1, and 6% had been paid without prejudice on a Form 63, section 2.

In addition, for the fiscal year 2019-2020, 27 claims had been filed for extended benefits under G. S. Section 97-29 (c). Seven of the claims had been mediated and three Deputy Commissioner Hearings had been held, but, as of the October conference, there had not yet been any decisions rendered.

NCIC Rule Changes Effective December 1, 2020.

Finally, seven Industrial Commission Rules were revised, and one new Industrial Commission Rule was added, all effective December 1, 2020.

Rules Effective 12-1-20.pdf (nc.gov).

Overview of December 1, 2020, NCIC Rule Changes

The Rules affected were 11 NCAC 23A .0104, .0408, .0409, .0501, .0903, 11 NCAC 23E .0104, and 11NCAC 23L .0103 and new Rule 11NCAC 23B .0106.

Related Post: Overview of December 1, 2020 NCIC Rule Changes by Attorney Lindsay Underwood

Amendments to Rules 11 NCAC 23A .0108, .0109, .0302, 11 NCAC 23B .0104, .0105, 11 NCAC 23L .0101, .0102, .0103, and .0105 will also become effective March 1, 2021.

Rules Effective 3-1-21.pdf (nc.gov)

Bruce Hamilton is a Partner in Teague Campbell’s Raleigh office. He is the legal advisor for the NCASI and, for the past 30 years, his practice has focused exclusively on workers’ compensation defense.

OAKLAND – Hanna, Brophy, MacLean, McAleer & Jensen is proud to announce the promotion ofGreg Stanfield, formerly the Managing Partner of the Oakland office to Firm Managing Partner. Stanfield succeeds Mike White who retired at end of last year as the 4th Managing Partner in the firm’s 78 year history.

“I could not be more thrilled when Greg indicated a willingness to serve as our Firm Managing Partner last year when Mike announced his retirement.  His leadership skills, professionalism and compassion for our employees will provide a seamless transition,” said Elizabeth Trimm, Sacramento office Managing Partner. “The future of Hanna Brophy is in good hands,” said Trimm

Stanfield has been practicing law for more than 25 years and has been a part of the Hanna Brophy team since 1998. Under his leadership, the firm’s headquarters in Oakland became one of the most influential and successful in the partnership.

Stanfield has built his practice on all aspects of workers’ compensation defense including public safety issues, 132a defense, serious & willful petitions, and CalPERS litigation. Throughout the course of his career, he has also successfully tried to verdict both bench and jury trials. Stanfiled has developed a special interest in representing governmental entities (with an emphasis on public safety) and self-insured employers.

Todd Ewing, Los Angeles office Managing Partner said, “I have worked directly with Greg in multiple leadership positions including the management committee and other various firm committees. I am looking forward to Greg and the many leadership and people skills he brings to the leadership team.”

Aside from his work at Hanna Brophy, Stanfield is a proud soccer and baseball dad who volunteers his time as a coach for his children’s teams. He’s also an accomplished tennis player with a 4.0 rating and a spot on the USTA National Tennis Team.

Commissioner Dodrill's latest Bulletin is a significant change to common practice for carriers, claims adjusters, and attorneys. West Virginia Insurance Bulletin No. 21-03 interprets W. Va. Code §23-4-8(a) and the physical examination of claimants. It has long been common practice to refer to the physical examinations allowed by W. Va. Code §23-4-8(a) as "independent medical examinations" or "IMEs" despite the fact the statute does not use that term. The Commissioner believes the use of the term "independent medical examination" may lead to confusion or misunderstanding by claimants, especiallypro se claimants. The Commissioner notes the term "independent medical examination" generally refers to an examination performed by a medical examiner who has not previously been involved in claimant's care. The Commissioner notes such an independent medical examination is an examination that is independent of the traditional doctor/patient relationship. In questioning the common use of the term "IME" when the examiner is often hired by the carrier, employer, or employer's attorney to perform the examination, the Commissioner explains: "This does not mean the examination is independent in the traditional or colloquial sense, as it is oftentimes requested and paid for by the party investigating the claim or even opposing the requested benefits."

Commissioner Dodrill reminds us medical examiners have their own professional code of ethics to which they must adhere, and examinations should always be objective and unbiased. Importantly, examiners must follow the statutory guidelines, guidelines set forth in W. Va. Code of State Rules §85-20-1, et seq., and any other applicable guidelines. The Commissioner notes the historical registration and list of approved IME physicians formerly kept by the Workers' Compensation Commission is no longer available. However, examiners are required to verify and provide proof of their American Board of Medical Specialties ("ABMS") or American Osteopathic Association ("AOA") certification to whomever services are provides. See W. Va. Code of State Rules §85-20-5.9.a.

The Commissioner stated private carriers, self-insured employers and their claims administrators should use caution to ensure the use of the term "independent medical examinations" or "IMEs" is not misleading or confusing. More precise language recommended in the bulletin is "insurer's physical examination of claimant", "private carrier's physical examination of claimant", "claimant's physical examination", or "employer's physical examination of claimant", as opposed to the more generic and potentially confusing term "independent medical examination" or "IME".

W. Va. Code §23-4-8(a) provides generally that a private carrier, self-insured employer, or in the case of a claim made to a state administered workers' compensation fund, the Insurance Commissioner may, after due notice and whenever in its opinion it is necessary, order a claimant other than a claimant for occupational pneumoconiosis to appear for a physical examination before a medical examiner of its own choosing. W. Va. Code §23-4-8(a) further provides a claimant and/or an employer may also select a physician of their own choosing to, at their own expense, participate in the examination. With a limited exception in the disclosure of certain psychiatric or psychological reports, the claimant and employer shall be furnished with a copy of the report of examination made by the medical examiner retained by the private carrier, self-insured employer or the Commissioner, if applicable. A physician selected by a claimant or an employer has the right to submit a separate report.

One final sidebar is the Commissioner's statement revisions to Rule 20 are under consideration to clean up the references to IMEs in the treatment guidelines. We will monitor for  action on this front.

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Employers need to be aware of an Assembly bill that would turn the workers’ compensation statute into an employment protection law.  The Assembly Labor Committee recently passed A-2617 sponsored by Assembly members Murphy, Benson, and Reynolds-Jackson.  The bill will require an employer with at least 50 employees to provide a hiring preference to an injured employee who has reached maximal medical improvement, is unable to return to his or her former position, but can perform the essential duties of an existing, unfilled position.

This bill is problematic for employers for many reasons: first, it attempts to turn a statutory benefits law – the New Jersey Workers’ Compensation Act — into an employment protection statute.  Second, there are already labor laws in New Jersey that protect employees, such as the New Jersey Law Against Discrimination and the ADA.  Third, there is no explanation of the circumstances in which employers can reject the preference or prove it should not apply.  In fact, there is no mention that the employer has any right whatsoever not to provide a job to someone who fits the criteria noted above.

Suppose the injured employee is less qualified than another applicant for the open position. Does the injured worker’s status as one who has reached maximal medical improvement trump the more qualified applicant’s credentials? Suppose the outside applicant also has a disability and is more qualified for the job? Further, in what court would the law be enforced?  New Jersey workers’ compensation judges do not have the power to enforce employment laws.  Clearly, claimants cannot prosecute failure to rehire claims in workers’ compensation court.

The Workers’ Compensation Act provides for medical, temporary and permanent partial and total disability benefits. That is all the statute has ever been intended to do.  If the law is only enforceable in civil court, why is this law not being considered as part of the NJLAD?  One overriding question employers will have is what does this proposed bill do that the NJLAD and ADA do not already do? This proposed bill also fails to mention anything at all about requests for reasonable accommodation, the need for an interactive dialogue or defenses of the employer such as undue hardship.  In that sense, this proposed bill seems to override existing disability discrimination laws.

Upon committee approval of the legislation, Murphy, Benson and Reynolds-Jackson issued the following joint statement:

“Work related injuries can be traumatic and devastating. No injured employee should be left without options for work. This bill will ensure that those who are unable to return to their previous position will still be able to put their efforts towards helping in a different role for their employers.

 “Those who have been injured in their place of work should not be cast aside with unemployment if they cannot resume their previous position. These people are still valuable employees who can contribute to their employers and company.

“The transition back to work after suffering an injury can be difficult. It is important for companies to offer ways for these employees to continue to contribute in the workplace, provide for their families, and resume successful careers.”

These sentiments are worthy of consideration, yet one must ask the committee members why would an employee who has a work-related spinal condition and reaches maximal medical improvement be entitled to greater protection than an employee who has the same spinal condition from a congenital cause and reaches maximum medical improvement?  Why should employment rights be dependent on workers’ compensation status?  The answer is they shouldn’t be and that the bill makes no sense.  Anyone who has a disability, be it work or non-work related, has equal rights under existing state and federal laws to reasonable accommodation. The committee statements stunningly suggest that that New Jersey Law Against Discrimination — one of the most progressive in the nation — has suddenly become outdated and inadequate.  This will come as news to employers and employment lawyers.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

West Virginia Insurance Commissioner Bulletin No. 21-01 Provides Guidance for Filing and Handling Workers' Compensation Claims for COVID-19

On January 19, 2021, the West Virginia Insurance Commissioner issued Bulletin No. 21-01 providing guidance for employers, workers’ compensation insurers, and self-insured employers regarding COVID-19 workers’ compensation claims.  The Commissioner reiterated that employees covered by their employers’ workers’ compensation insurance policies have the right to file claims for workers’ compensation benefits if the employees sustain an occupational injury.  The Commissioner noted that the term “occupational injury” includes an occupational disease, alluding that COVID-19 will be considered an occupational disease rather than an occupational injury. 

The Commissioner specified that employers may not advise employees that they cannot file workers’ compensation claims for COVID-19, nor may employers threaten retaliation for such claims.  Employers must post notices in a conspicuous place on their premises identifying their workers’ compensation insurer, including the name, business address, telephone number, and contact person to whom questions about making a claim should be directed.

The Commissioner reminded employees to give written notice of the injury immediately or as soon thereafter as practicable. Generally, employees have six (6) months to from the date of injury or death to file a workers' compensation claim for an occupational injury. The Commissioner recommended employees to file their workers' compensation claim as soon as possible after reporting the injury to the employer.  

Employers must report employee claims of occupational disease to their workers’ compensation insurance carriers within five (5) days after receiving notice that an employee desires to file a workers’ compensation claim or within five (5) days of receipt of the employee’s report of injury.  The Commissioner forbids employers to conduct screenings or causation investigations of COVID-19 claims prior to reporting the claims to their workers’ compensation carriers (or prior to processing the claim if the employers are self-insured).

When an employee files a workers’ compensation claim for COVID-19, the insurer or self-insured employer must properly investigate the claim and issue a timely written compensability decision.  Only after an insurer or self-insured employer receives a properly filed workers’ compensation claim must the insurer or self-insured employer use due diligence to investigate the employee’s claim to determine compensability.  These investigations include a determination of the cause and place of injury (COVID-19 exposure) which is germane to whether the injury occurred in the course of and as a result of the employment.  Workers’ compensation claims for COVID-19 should not be summarily refused, denied or rejected outright without a proper investigation.

Employers and healthcare providers must cooperate with workers’ compensation investigations of COVID-19 claims by timely providing medical records and other necessary information to workers’ compensation carriers or self-insured employers.

Finally, the Commissioner reminded employers that they may not terminate an employee who is off work for a compensable injury and is receiving, or is eligible to receive, temporary total disability benefits unless the employee has committed a separate dischargeable offense.  Additionally, employers cannot cancel or decrease an injured employee’s medical insurance benefits while the employee is receiving workers’ compensation benefits for a temporary disability.

Article by Charity Lawrence and Dill Battle

If you have questions or need more information, please call or e-mail Charity at 304.720.4056 or clawrence@spilmanlaw.com or Dill Battle at 304.340.3823 or dbattle@spilmanlaw.com.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3800 - office
304.340.3801 - fax
www.spilmanlaw.com