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: Lawrence Hamby (Associate Attorney -Orange Office)
A few years ago, there was a popular book entitled “The 48 Laws of Power” which offered guidance on how to handle difficult situations. One of those laws was to keep your hands clean, which during the current pandemic is sage advice literally and for California employers figuratively as well given the updated statewide industry guidance and reporting guidelines provided from Cal/OSHA related to COVID-19. (See link:https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html)
On May 27, 2020, Cal/OSHA provided guidance on updated reporting guidelines that will affect employers big and small in the Golden State. Fortunately, there are not 48 new guidelines to take into account for Cal/OSHA reporting which is now broader than federal OSHA is some respects, but there is enough to keep employers busy as the reopening in California takes effect off with millions more workers expected back on the job soon.
The Difficult Made Easy. With an airborne disease such as COVID-19 it is almost impossible to determine how someone contracted it. Nevertheless, Cal/OSHA by providing reporting and recording guidelines for COVID-19, has made it easier to determine whether to report a potential case or not since it has taken much of the discretion away from the employer.
For instance, California employers going forward will need to record on their Log 300 all COVID-19 illnesses if there is a work-related confirmed case or positive test for COVID-19 of an employee involving any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or significant injury or illness diagnosed by physician or other licensed healthcare professional.
But, this is where federal OSHA guidance and Cal/OSHA diverge since federal OSHA generally requires a COVID-19 case to be confirmed through testing, whereas Cal/OSHA statesthat even if testing is not available it is recommended to err on the side of recording if one of the six general recording criteria listed above are present, which is broader than Fed/OSHA. So far two million have been tested in California and that number is increasing by an average of 60,000 tests per day.
Previously, for record keeping purposes the employer did not have the burden put on it to determine if a COVID-19 case was industrially related. Now, Cal/OSHA has fine-tuned the decision making process and requires thatvarious factors be considered for the determination. Such as, if there was a known exposure to persons infected with the virus that causes COVID-19 in the workplace or even working in the same area, this could lead to the illness being determined to be work-related. Likewise, if there is a sharing of computers, equipment, or work vehicles which may have exposed a worker to the virus. There will be a presumption by Cal/OSHA of work-related exposure unless an exception in 8 CCR section 14300.5(b)(2) specifically applies.
The more difficult are those in which there was not a known exposure that could trigger determination of work-relatedness such as the amount of contact a worker has with the general public, how stringent the safeguards were at the workplace in wearing masks and enforcing physical distancing and if the worker had contact with someone who exhibited the symptoms of COVID-19, which could include delivery persons or vendors.
The zone of safety is to record and report the above cases, keeping your hand clean with Cal/OSHA.
Not recordable for Cal/OSHA purposes are days away from work solely spent in quarantine with no work-related illness.
Timing Is Everything. Going forward employers must also report to Cal/OSHA immediately any cases of COVID-19 that are work-related and meet the definition of a serious illness that requires inpatient hospitalization for other than medical observation or diagnostic testing. This does not have to be an overnight or 24 hour stay. The report to the nearest Cal/OSHA office must be made within eight hours after the employer knows or should have known of the serious illness or death. Again this goes beyond the current federal OSHA guidelines which allows for reporting within 24 hours.
What if you are a general or special employer or a PEO? The zone of safety may require all involved employers to report any work-related Covid-19 illness to Cal/OSHA.
Don’t Play Doctor. An employee may become sick while at work and display symptoms of COVID-19. What is an employer to do in this situation? According to the Cal/OSHA guidelines for reporting purposes it does not matter if the illness is work-related, it triggers the reporting requirement by the employer so that Cal/OSHA can make the preliminary determination of work relatedness.
The factors that Cal/OSHA will use to make a preliminary work-relatedness determination are whether there are multiple cases in the workplace, the type, extent and duration of contact with others especially the general public, physical distancing and other controls as well as contact with anyone who exhibited symptoms of COVID-19.
This is applicable even if COVID-19 case has not been diagnosed by a licensed health professional as required under the federal OSHA guidelines.
Sometimes there is a reluctance to report a serious illness/injury as work-related because it is assumed that this is an admission of liability. This is not the case and there is no admission of responsibility, it is merely compliance with a mandatory reporting requirement.
One final point is Gov. Newsom’s Executive Order in May regarding the rebuttable presumption for workers compensation benefits and COVID-19. The Order does not alter or affect in any way a California employers reporting and recording obligations under Cal/OSHA regulations.
Good health to you and keep your hands clean!
By: William Davis (Associate Attorney -Santa Rosa)
Everyone has been focused on Governor Newsom’s May 6, 2020 Executive Order creating a temporary rebuttable presumption for AOE/COE and temporary disability benefits in COVID-19 cases. Rightfully so. But while all eyes were on the COVID-19 presumption many may have missed another Executive Order that came out the very next day.
On May 7, 2020, Governor Newsom issued Executive Order N-63-20. Its impact is temporary and will last as long as the California-declared state of emergency, or until lifted by the Governor. The majority of this EO deals with extending some deadlines that have been impacted by the COVID-19 pandemic and other public health concerns. However, buried in the May 8, 2020 EO in paragraph 11 is an order that will impact hearings and trials at the WCAB, particularly where witnesses are required. This EO suspends the rules requiring a witness to be physically present at a hearing if ALL of the following are satisfied:
This is going to have a dramatic impact on the way in which trials at the WCAB are conducted, if they are conducted at all. While the EO allows for hearings to be conducted “by telephone, television, or other electronic means”, it requires that each participant be able to hear and observe exhibits.
How will this play out in practice? The short answer is that most trials will be continued and parties are well advised to try to resolve cases informally where it makes sense.
The WCAB is already conducting hearings other than trials by conference call. It makes sense that this system will be used for trials as it is already in place and does not require any new equipment, software, IT support, or training. This means that the Judge and the respective counsel will be left to assess witness credibility solely by voice, which is a very poor substitute to direct observation of a witness in a court room. Ordinarily, a good attorney or judge will watch closely for visual cues such as whether the witness maintains eye contact, whether they are referring to notes, or even whether someone is whispering an answer in their ear. The trial Judge will be unable to gauge pain behavior, or lack thereof, or even see if they are using any durable medical equipment like a cane, brace, or sling. How are the Judge and other parties to even ensure that the witness is who they say they are? Without video, fraud is definitely a concern. And, as every litigator will tell you, there is a certain gravitas when a witness actually takes the witness stand and possibly has to face either the employer or the Applicant when telling their story. That will be lost. Also lost will be the ability to ensure that witnesses who have not yet testified are excluded while another is testifying. Over the phone, who knows who else is listening in?
Of course, there was a recent case where an out of the county witness was allowed to testify by FaceTime on an iPhone. But, in that case, all the other case participants were in the courtroom. This would be far more difficult to do with the respective attorneys, the Judge, and the court reporter all scattered to different locations.
And, what of the requirement that a participant be able to observe the exhibits? This would include a potentially expansive list of people: the direct parties, witnesses, the Judge, and possibly even the court reporter and interpreter, if applicable. We have already seen at least one judge require that that witnesses must be able to see and review all exhibits prior to giving testimony and that if they do not have the ability to do that, the trial will be continued.
The requirement that members of the public be allowed to observe makes sense for civil and criminal trials. But, it is indeed the rare workers’ compensation trial that has an audience of the general public or press. This section should not pose much of a problem at the WCAB.
More interesting is the requirement that the Americans with Disabilities Act and Unruh Civil Rights Act be satisfied. How is the presiding judge to ensure this in all cases? Suppose a participant is hearing impaired. Does the use of a telephonic captioning device satisfy the requirement that they be able to hear the proceeding? How can the parties effectively utilize a sign language interpreter over the phone? Or, if the participant is visually impaired, how does the presiding judge ensure that they can observe exhibits? If the WCAB cannot accommodate those with hearing or vision impairments, or possibly other impairments, are they being deprived of due process on the basis of a disability?
While some trials will need to go forward out of necessity, we can expect to see the majority of trials being continued into the indefinite future. That, or the WCAB could utilize a video-conferencing platform with appropriate security measures in place. Of course, that means that we’d all have to hope that our going-to-court wardrobe still fits after these months of shelter in place.
A copy of this EO can be found here: https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-on-extending-deadlines-impacted-by-covid-19/
On Friday, June 26, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different states will present a timely and comprehensive webinar entitled: Navigating Post-Injury Wage Earning Capacity in a COVID World. This is the seventh in a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network at the Center for Education Excellence.
The webinars are free. All you have to do is register.
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.
Claimant was involved in a work-related injury to her low back in 2008, and for the next five years, she received low back treatment – including injections – paid for by the State of Delaware. She then stopped treating for her low back for a few years, until she returned for more injections and ultimately underwent a lumbar fusion surgery from L4-S1. Drs. Eskander and Cucuzzella both testified on behalf of the claimant that the return to treatment and the surgery were part of the progression of the low back injury from 2008. However, Drs. Rushton and Meyers testified on behalf of the State of Delaware that the 2008 accident had involved a temporary aggravation of her low back condition that then resolved. Citing to the progression of findings on the imaging studies, including entirely new findings of spondylolisthesis for the first time in 2015, Dr. Meyers and Dr. Rushton agreed these findings could not be attributable to a single event from nearly a decade earlier.
The Industrial Accident Board found claimant did not meet her burden to prove that the medical treatment since 2017, to include the 2019 lumbar fusion surgery, was causally related to the work accident. The Board accepted the testimony that the frequent imaging studies showed a natural progression of degenerative lumbar disease, which was wholly consistent with the claimant’s age and gender, and which the experts testified could occur without any trauma. One critical finding was the appearance of spondylolisthesis in 2015, seven years after the work accident; because that was a primary component of Dr. Eskander’s rationale for surgery, the Board agreed that it could not link a finding so distant in time back to the work accident.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.www.hfddel.com 302-573-4800
Linda Callahan Terry v. State of Delaware, IAB No. 1473826, April 29, 2020.
Legal Update by Attorney Alison Stewart
The Commissioner has extended the suspension of in-person hearings in regular procedure contested cases proceedings through at least September 14, 2020. More information can be foundhere.
The following information and resources will be in effect from July 1, 2020 through June 30, 2021:
o Ratebook
o The mileage rate will be $0.575 per mile
o The Maximum Weekly Benefit amount for Temporary Total Disability (TTD), Healing Period (HP), Permanent Total Disability (PTD), and death benefits is $1,864.
o The Maximum Weekly Benefit amount for Permanent Partial Disability (PPD) is $1,715.
o The Minimum Weekly Benefit amount for PPD, PTD, and death is $326. This is the figure that serves as the average weekly wage when the average weekly wage calculated is below this amount. It is then necessary to take this figure and apply appropriate exemptions to determine the minimum weekly rate. A minimum rate does not apply for temporary benefits.
o The Questions and Answers Brochure has been updated.
Peddicord Wharton will continue to monitor the ongoing circumstances and update as necessary.
If you'd like to sign up for our e-newsletter, please click here.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
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.
A recent unpublished case poses an unusual question: can a party to a consent settlement for a percentage of disability award reopen the case to dispute the rate that was agreed to in the settlement? The case is Calero v. Target Corporation, A-2650-18T3 (App. Div. June 10, 2020).
Ms. Calero and Target Corporation agreed to a settlement on August 23, 2016 for a certain percentage of partial permanent disability. Wages were stipulated at that time of $276.17 week with a capped rate of $193.32. That meant that petitioner’s weekly permanency payments were capped at $193.32. The Judge of Compensation and all parties, including the petitioner, signed the final order. Several months later petitioner hired a new lawyer, who filed a motion for reconsideration of the wage which had been stipulated to in the settlement order. The new lawyer argued that the part-time wage should have been reconstructed based on a full time wage. Target opposed the motion for reconsideration.
A hearing took place on September 12, 2018, and petitioner was permitted to testify essentially that the consent award was wrong on her wage. She agreed that she earned $11.50 per hour but she was not seeking a higher percentage of disability. She testified that she was hired on a full-time basis but she “worked the hours that were posted” for her. She maintained that she was always available for 40 hours. After her accident she tried to return to work but was physically unable to do so, and she said her hours continued to be reduced until there was no more work for her. She had not worked anywhere since leaving Target.
On cross examination, petitioner acknowledged that sometimes she barely worked 20 hours per week. But she maintained that most of the time she worked 40 hours per week. Counsel for Target did not offer any documents on her actual hours worked, nor produce any testimony from store employees. It does not appear in the decision whether petitioner was asked why she had in fact agreed to the rate of $193.32 at the time of the 2016 settlement.
On January 16, 2019, the Judge of Compensation issued his decision reconstructing petitioner’s wages to 40 hours per week. The judge applied the law set forth in Katsoris v. S. J. Publ’g Co., 131 N.J. 535 (1993). That case requires proof of a permanent diminution of earnings capacity to reconstruct wages. Given petitioner’s testimony that she mainly worked 40 hours per week and that she could no longer work, the judge held that petitioner had proven a permanent diminution of wage earning capacity. In so finding, the Judge of Compensation relied on a Civil Rule 4:50-1, which allows for judicial relief “which involves mistake, inadvertent surprise or excusable neglect.”
Pursuant to the reconstructed wage, petitioner’s new wage became $460 per week, which allowed for a permanency rate up to $322 per week, substantially higher than the rate in the 2016 order of $193.32 per week.
Target appealed and argued that N.J.S.A. 34:15-27 respecting requests for modifications does not permit a party to reopen a case on stipulated facts like wage and rate. Rather, the rule is designed for requests for modifications in the percentage of disability, or requests for further treatment or further temporary disability benefits. The Appellate Division refused to hear this argument because Target failed to argue this point before the Judge of Compensation. The policy of the appellate division is to only hear arguments on appeal that were raised below. The Appellate Division also noted that Target had conceded that Civil Rule 4:50-1 permitted petitioner to make application to the Judge of Compensation for relief from a mistake.
The Appellate Division commented that even if it had considered Target’s argument that stipulations on wages and rates cannot be the subject of a motion for reconsideration, “… we would find no error because regardless of the Act’s provisions, a judge of compensation has inherent authority to open judgments or orders in the interest of justice and that decision will not be disturbed absent an abuse of discretion.”
Target also argued that it was unfairly required to “incur additional and unforeseen litigation expenses to defend the settlement” which created “a tangible and significant harm.” The Court rejected this argument because “Target did not argue before the judge of compensation or now before us, that had reconstruction been raised by Calero in the settlement discussions that led to the consent order, she would not have been entitled to the application of reconstruction to her wages.” In other words, the Court said that Target never proved petitioner was not entitled to the reconstructed wage. The Court said, “Target offered absolutely no evidence to refute Calero’s proofs or to establish that the alleged substantial prejudice Target suffered outweighed that which Calero experienced by not have her award properly determined.”
This case is unpublished, meaning that other courts are not bound by it, but it raises some very important questions for all cases where petitioners do not regularly work 40-hour per week jobs and may have capped permanency rates. If the petitioner agrees on the record to the wage and rate and testifies as such, is the petitioner still able to hire another lawyer later on to prove that wages should have been reconstructed? How can the respondent protect itself from settlements being overturned on this issue? Can respondent do the same thing and reopen awards if records show that the petitioner in fact had a lower wage than that which was agreed on?
In this particular case, the evidence produced by petitioner for reconstruction of wages was strong and consistent with the Katsoris decision because petitioner argued she had a permanent diminution of earning capacity. There was no evidence offered by Target to dispute the statements petitioner made in court. Rather, Target focused on the unfairness to the company when a petitioner moves to reject the terms of consent order after the order has been entered and is being paid. In fact, It does seem unfair to the employer to negotiate a settlement considering all factors, including the percentage of disability and rate, and then have one part of that settlement remain open for a subsequent attack. What we do not know in this case was whether the overall percentage of disability was negotiated higher in exchange for a capped rate. There is no mention of that in the decision.
Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.
--------------------------------
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.
Legal Update by Attorneys Nicholas Cooling & Alison Stewart and Law Clerk Jordan Gehlhaar
Recently, Deputy Workers’ Compensation Commissioner William Grell issued anarbitration decision defining what constitutes the “shoulder” under Iowa law. One of the main issues was whether the claimant’s work injury should be compensated with permanent disability benefits as a scheduled member injury to the left shoulder, as a bilateral shoulder injury, or as an unscheduled injury. Ultimately, the Iowa statute was construed liberally, for the benefit of the injured worker.
While completing maintenance work as an employee of McDonald’s on April 18, 2018, Claimant Smidt tripped over a box and struck his left side on a steel beam. His injuries included tears of the supraspinatus and infraspinatus tendons, or rotator cuff.
Prior to amendments to the Iowa Workers’ Compensation laws in July of 2017, the shoulder was considered proximal to the arm, and was compensated as industrial disability, an unscheduled injury. Through the 2017 amendments, the Iowa legislature specified that injuries to the “shoulder” should be compensated as scheduled member injuries on a 400-week schedule. However, the deputy concluded, the legislature’s language was ambiguous as to what constitutes the “shoulder.”
Claimant argued that the injuries were proximal to the glenohumeral (shoulder) joint, and should be an unscheduled injury compensated with industrial disability pursuant to Iowa Code Section 85.34(2)(v) (2017). The defendants argued the injury was limited to the left shoulder and should therefore be compensated as a scheduled member injury pursuant to Iowa Code Section 85.34(2)(n) (2017).
The Deputy Commissioner determined that the legislature made a conscious decision to add the “shoulder” as a scheduled member injury, resulting in significantly less compensation to an injured worker. Additionally, it was determined that the legislature likely knew, based on prior decisions, that an injury to the rotator cuff would be proximal to the “shoulder” joint, and therefore compensable to the body as a whole. The deputy reasoned that there is a difference between the “shoulder” and the surrounding anatomic parts (tendons and muscles) that operate the shoulder, which is consistent with Dr. Kuhnlein’s opinion in the case, as well as prior Commissioner’s findings inNazarenus v. Oscar Mayer & Co. in 2008.
Mr. Smidt was involuntarily terminated at the change of management and later found employment as a part-time truck driver. Considering the traditional industrial disability factors, the deputy made an award of 40% industrial disability.
Overall, these findings are consistent with those in Chavez v. MS Technology, LLC, File No. 5066270 (Feb. 5, 2020) andDeng v. Farmland Foods, Inc., File No. 5061883 (Feb. 28, 2020) – two similar decisions since the 2017 amendment. In effect, this decision indicates the agency’s progression since the 2017 amendments, toward body as a whole classification when injury of the shoulder is involved. Under the current case law, any time the injury extends into the proximal portion of the shoulder joint, we can expect the agency to find a body as a whole injury, where industrial disability analysis may be appropriate. However, as this decision suggests, additional guidance in the form of statutory language and parameters of what constitutes “shoulder,” is necessary and Peddicord Wharton will continue to monitor the case law as this issue continues to develop.
If you'd like to sign up for our e-newsletter, please click here.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
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.
JUNE 2020
COVID-19 CLEARS THE WAY FOR TELEHEALTH TO TREAT TENNESSEE WORKPLACE INJURIES
One of the most fundamental rights of an injured worker under the Tennessee Workers’ Compensation Law is the right to medical treatment for the work-related injury or illness. Typically, this medical treatment is provided by a medical provider chosen by the injured worker from a list of doctors – i.e. the medical panel. The statute requires that the medical panel consist of providers who are located in the employee’s community, with the clear intent being that the medical provider needs to be located near enough to where the injured worker lives so that the injured worker can be treated by the medical provider without any undue burden or expense of excessive travel. This entire framework assumes that the injured worker will receive treatment by physically going to the doctor’s office and by undertaking an in-person medical visit with the provider. Indeed, that is exactly what was required under the Tennessee Workers’ Compensation law – that is, until the COVID-19 pandemic.
Before COVID-19, the Tennessee Workers’ Compensation Law did not provide for nor did it allow an injured worker to receive treatment for his or her injury via a telehealth visit. However, that has now changed.
The first step occurred on March 17, 2020, when the Trump Administration announced expanded Medicare telehealth coverage to enable beneficiaries to receive a wider range of healthcare services from their doctors without having to travel to a healthcare facility. Prior to this announcement, Medicare was only allowed to pay clinicians for telehealth services such as routine visits in certain circumstances. For example, the beneficiary receiving the services must live in a rural area and travel to a local medical facility to get telehealth services from a doctor in a remote location. In addition, the beneficiary would generally not be allowed to receive telehealth services in their home. President Trump’s announcement came at a critical time as these new flexibilities would help healthcare institutions across the nation to offer some medical services to patients remotely, so that healthcare facilities like emergency departments and doctor’s offices remain available to deal with the most urgent cases and to reduce the risk of additional infections.
On March 25, 2019, the Tennessee Bureau of Workers’ Compensation issued a notice stating, for the first time, that a panel-chosen physician may utilize telehealth in the treatment of an injured worker. The notice clarified that there is no specific provision in the law that addresses the subject of a telehealth provider to be listed on the medical panel. Payment was directed to be made in accordance with all guidelines from the U.S. Centers for Medicare & Medicaid Services (CMS), including those announced on March 17, 2020.
The Tennessee Bureau of Workers’ Compensation provided even further guidance on April 1, 2020, by issuing its Temporary Guidance on Telehealth for Workers’ Compensation. This guidance specifically allows for telehealth in the context of workers’ compensation during the COVID-19 national emergency, to provide appropriate care continuation and to improve functional considerations for both new and established patients. The Bureau required that telehealth visits be conducted by telephone only or by video/audio links with the express agreement by both patient and provider. Although recommended to have the appropriate Tennessee licenses, certain requirements were waived for specific qualified providers. Moreover, certain telecommunications applications not previously allowed are now permitted for use during this period, including Skype and Facetime. It is anticipated that the provider will still make a good faith effort to protect patient privacy, and records should be kept as if the visit were in-person. Medical providers may bill for the visits using standard billing forms, and the bill should be paid pursuant to the applicable Medical Fee Schedule.
On April 30, 2020, CMS announced that it was waiving certain requirements of federal law which specify the types of practitioners that may bill for the services when furnished as telehealth services. The waiver of these requirements expands the types of health care professionals who can provide telehealth services. As a result, physical therapists, occupational therapists, and speech language pathologists were permitted to use telehealth to provide many Medicare services.
On May 1, 2020, this issue was also addressed by Governor Bill Lee in Executive Order No. 32. That Executive Order addressed physical, occupational, and speech therapy via telemedicine for workers’ compensation claimants, and it temporarily suspended certain existing workers’ compensation regulations to specifically allow those types of services to be delivered via telemedicine. The Order also specified that the billing for such services should be reimbursed as if the services were delivered in-person.
As you can see from the above, in only about a month and half, we have gone from not being able to use telehealth at all in the context of workers’ compensation, to being able to use it routinely as a vital component of providing uninterrupted medical care for injured workers. Not only does this help the injured worker by providing continued care, it also helps employers and their workers’ compensation carriers by helping to ensure that workers’ compensation claims will continue to move toward resolution in an orderly fashion. After all, a claim cannot typically be resolved until the employee has completed his or her medical treatment with the authorized treating physician and placed at maximum medical improvement. Before the introduction of telehealth, COVID-19 presented quite an obstacle in this regard since most non-emergency medical care was placed on hold, including the necessary follow-up care for work injuries. However, the new availability of telehealth should benefit both injured workers and their employers by allowing that medical treatment to get back on track – at least to some extent.
Obviously, telehealth is not the right solution for every situation. There will always be a need for in-person medical treatment, particularly at the beginning and end of treatment, and for direct procedures. However, for routine follow up care and therapy, telehealth will sometimes be the best solution to keep the claim moving forward in a timely fashion. While the above-described measures by the Tennessee Bureau of Workers’ Compensation are temporary and apply only during the COVID-19 pandemic, be on the lookout for more permanent measures. The benefits of telehealth under the right circumstances cannot be questioned, and it seems very likely that telehealth in some form is here to stay.
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com
A key doctrine in the law known as “respondeat superior” provides that an employer is responsible for the acts of its employees performed within the course of their employment. Whether that doctrine applied to an employee who had a motor vehicle accident after being summoned to a training meeting was the issue in Samol v. Vanlaningham, No. A-5058-18T2 (App. Div. June 3, 2020).
The facts involved a high school student, Ryan Vanlaningham, who was called by his store manager to attend a training meeting at Party City where he worked in March 2016. Vanlaningham was informed that he would be compensated at his usual hourly rate for the training meeting, and he would work his regular shift the same day. He was not compensated for the time driving to the training meeting at his work location. While driving to the training meeting, Vanlaningham’s vehicle struck a vehicle owned by Pablo Samol. A passenger in Samol’s car, Beatrice Samol, was injured and filed a lawsuit naming Vanlaningham and his employer, Party City, as defendants.
Party City opposed the law suit and moved to dismiss it. The company argued that Vanlaningham was not in the course of his employment when he was driving to work for the training meeting under the going-and-coming rule. Samol countered that this was not a normal commute to work because Vanlaningham was either compelled to go to work or was on a special mission, two exceptions to the premises rule, which replaced the going-and-coming rule in New Jersey in 1979.
The trial judge ruled that Vanlaningham had not arrived at work when the accident occurred, and therefore Party City was not liable for his actions. The judge concluded that the training meeting was a normal and routine part of the young man’s employment. The Appellate Division agreed with the trial judge but considered the argument of Ms. Samol that Vanlaningham was “compelled” to undertake the actions of driving to the training meeting. The Court reviewed the two leading cases on compulsion in workers’ compensation, namely Sager v. O. A. Peterson Constr. Co. and Lozano v. Frank De Luca Constr. Those cases stand for the proposition that an otherwise non-compensable activity can become compensable if the employer compels an employee to perform the activity.
The Court seemed to blend the special mission and compulsion arguments together: “Here, there was no credible basis to support the assertion defendant controlled Vanlaningham’s commute or that his commute fell within the scope of his job duties. The facts did not demonstrate Vanlaningham’s commute was pursuant to a special mission; he was traveling to his regular place of employment on one of his pre-scheduled workdays. For these reasons as well, his drive to work on the day of the incident was not a compelled activity.”
The decision of the court is clearly correct and the reasoning is a sound. But the court slightly missed the mark on the special mission argument. The statute states that a special mission only applies when the employee is required to be away from the employer’s place of employment. N.J.S.A. 34:15-36. Here the drive was directly to the normal place of employment. Therefore, it could not be considered a “special mission.”
As for the compulsion argument, all employees are compelled to go to work. Attendance at work is not optional, as we all know. The compulsion line of cases is a valid one in New Jersey. However, it only applies to activities that are not normally required of employees. Since all employees are compelled to report to work, the compulsion argument really made no sense. If the court were to entertain the argument that a drive to the normal work site was compelled, it would completely undercut the goal of the 1979 Amendments, which was to do away with the many exceptions in the law to the going-and-coming rule.
--------------------------------
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.
By: Bill Davis (Associate Attorney - Santa Rosa)
On May 27, 2020, the Sixth Appellate District issued its long-awaited decision in County of Santa Clara v. WCAB (“Justice”). This decision dramatically curtails the application of the Hikida case, which is regularly cited by the Applicant’s bar to severely limit or even eliminate apportionment.
It is important to notes that the Justice Court did not disagree with the Hikida decision. Instead, it held that the Hikida decision was being applied in an overbroad and inappropriate manner.
The Justice Court agreed that Defendant was responsible for a new injury that was the consequence of medical treatment. It further agreed that “[A]n employee is entitled to compensation for a new or aggravated injury which results from the medical or surgical treatment of an industrial injury.” The Court noted that, while these statements are correct, they are not the end of the discussion. “However, it does not follow that an employer is responsible for the consequences of medical treatment without apportionment, when that consequence is permanent disability”. This is key for the defense community because applicant attorneys have been using Hikida to argue that there is no apportionment when permanent disability results from medical treatment.
The Justice Court relies upon Labor Code sections 4663 and 4664 and the numerous cases which applied these sections, particularly the Lindh decision (City of Petaluma v. WCAB (Lindh)). The Justice Court notes, “There is no case or statute that stands for the principle that permanent disability that follows medical treatment is not subject to the requirement of determining causation and thus apportionment, and in fact such a principle is flatly contradicted by sections 4663 and 4664”. In other words, the Justice Court seems to indicate that where there is permanent disability from any industrial source, Defendant should have the ability to assert apportionment.
The Court specifically held that that the Hikida decision finding no apportionment “makes sense only because the medical treatment in Hikida resulted in a new compensable injury, namely CRPS, which was entirely the result of the industrial medical treatment”. The emphasis is in the original opinion. The Justice Court was clearly stating that apportionment is required unless the medical treatment resulted in a new condition which was entirely the result of that treatment. Otherwise, per Lindh, “the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required”. Citing 4333(a), Lindh, and Acme Steel, the Court held “Where there is unrebutted substantial medical evidence that non-industrial factors played a causal role in producing the permanent disability, the Labor Code demands that the permanent disability “shall” be apportioned”. Defendants still must meet their burden of proof to substantiate apportionment. If medical treatment has caused a “new injury” the evidentiary efforts to prove up apportionment start anew with regard to that new injury. Additionally, per Benson, distinct disabilities must each be taken on their own and cannot be merged.
There is another aspect of this decision that will be of great benefit to the defense community. The treatment in the Justice case was bilateral knee replacements. There has been substantial litigation since SB 899 on the issue of whether a defendant can obtain apportionment where a joint, and thus the underlying degenerative condition, has been replaced. Most of the more recent cases found that it is permissible, but these have been lower level or writ denied cases. We now have a published Court of Appeal case in which apportionment was allowed where there has been a joint replacement. Still, nothing can be taken for granted and defendants must ensure they have substantial evidence to support apportionment in each particular case.
This case is a blow to the overbroad application of Hikida that we have seen since the decision issued. Now, a defendant has the ability to apportion liability of permanent disability partly caused by medical treatment. Hikida is now limited to those rare situations where medical treatment results in an entirely new condition, and that condition is not subject to apportionment for non-industrial factors. As an added bonus, defendants have a much stronger argument for apportionment in a joint replacement case. In all, this is a great decision that further strengthens the concept that an employer is only liable for the permanent disability caused by their injury.
If you have questions about how this decision specifically impacts your case, contact the author, Bill Davis at wdavis@hannabrophy.com.