See the below press release regarding Gov. Beshear's ALJ appointments and Nominating Committee appointments.

Governor Beshear Makes Appointments to Kentucky Boards and Commissions

On Monday, June 1, 2020 at 11:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different regions of the United States will present a timely and comprehensive webinar entitled:Establishing a "New Normal"During COVID-19. This is the forth 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.

REGISTER HERE FOR THE WEBINAR

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 compensable 2003 work accident with an accepted L4-S1 fusion performed in 2005, by Dr. Eppley. Following the surgery, claimant was discharged by her surgeon and referred to pain management. Claimant remained in continuous pain management to the present, with narcotic medications, injections, and various other conservative care. In 2017, Claimant returned to Dr. Eppley, who recommended adding L2-4 to her original fusion, citing suspected adjacent segment disease. Claimant filed a Petition seeking approval of the surgery. Employer filed a Petition seeking to discontinue ongoing narcotic medications.

The Board found that the recommended surgery was not reasonable and necessary treatment, accepting the opinion of defense expert Dr. Fedder over Dr. Eppley. The Board noted that contrary to the rosy picture painted by Dr. Eppley in his deposition as to the outcome of the first surgery, the medical records showed “at best” this procedure caused 30% improvement in claimant’s subjective complaints only. The procedure did not allow claimant to return to work, or reduce her treatment, narcotic medications, and the like. To the contrary, pain management treatment increased and was uninterrupted for years following the surgery. The Board also noted that the proposed surgery would not fix claimant’s multiple unrelated comorbid conditions that significantly impacted her function, such as the need for bilateral knee replacements, rheumatoid arthritis, and morbid obesity. The Board further opined, based upon the testimony of defense expert Dr. Nathan Schwartz, that claimant’s narcotic medications should be discontinued due to lack of functional improvement.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Carmen Kelley v. First Student, IAB Hrg. No. 1238448 (Apr. 6, 2020).

302-573-4800 www.hfddel.com.

By: Patty Robbins (Associate Attorney - Redding)

On March 18, 2020, H.R. 6201, the “Families First Coronavirus Response Act,” was signed into law. This emergency measure provides benefits for the many Americans that have been (or soon will be) affected by COVID-19. The Act primarily address the following concerns: access to food, paid leave, and costs of testing and treatment.

This article will address the changes that are most likely to affect employers – the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. As will become clear, these changes place a financial burden on businesses employing fewer than 500 people. The Acts do not apply to larger employers. Division G attempts to address this financial burden by allowing a tax credit equal to 100% of the qualified sick leave wages paid. Consultation with labor counsel and tax advisors is recommended.

Emergency Family and Medical Leave Expansion Act

The Family and Medical Leave Act of 1993 (“FMLA”) entitles employees to 12 workweeks of leave during any 12 month period:

•  for the birth of a child,
•  for adoption,
• to provide care for an immediate family member with a serious health condition,
• due to one’s own serious health condition, or
• due to “any qualifying exigency” determined by regulation arising from an immediate family member’s active duty in the Armed Forces.
  

To be eligible, the employer must have “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” (Section 101(4)(A)(i)). Also, the employee must have at least 12 months of employment and 1,250 hours of service within the preceding 12 months of employment. (Section 101(2)). An eligible employee that contracts COVID-19 such that he or she has to be hospitalized would likely be eligible for FMLA under the original statute.

The Emergency Family and Medical Leave Expansion Act (“the Expansion Act”), focuses on the impact to families of the preventative measures taken to address the COVID-19 pandemic including school closures and shelter in place orders.

The Expansion Act temporarily adds to the reasons for leave “a qualifying need related to a public health emergency.” The statute is careful to limit the scope of the term “emergency” to those declared by a Federal, State, or local authority relating to COVID-19. California Governor Gavin Newsom declared a state of emergency relating to COVID-19 on March 4, 2020 and the President of the United States declared the same on a national level on March 13, 2020. Therefore, the “qualifying need” must arise from the effects of the current COVID-19 pandemic addressed in those declarations.

What is a “qualifying need?” Under Section 102(a)(1)(F)(A) a “qualifying need” means, “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child provider of such son or daughter is unavailable, due to a public health emergency.” Therefore, any schooling or child care that is disrupted as a result of the declared states of emergency may make an employee eligible for FMLA. If the need for leave is foreseeable, the Expansion Act requires the employee to provide the employer with notice “as is practicable.” (Section 110(c)).

Leave on a public health emergency basis is different than the other types of leave in two notable ways. First, an employee becomes eligible for leave on public health emergency grounds after just 30 calendar days of employment. (Certain health care providers and emergency responders may be ineligible at the election of their employer pursuant to section 2105. They could also be deemed ineligible in the future by the Secretary of Labor under section 110(a)(3)). Second, the Expansion Act applies to all employers with “…fewer than 500 employees.” It does not apply to large businesses. Considering that small businesses are less likely to have remote work options and the Expansion Act places a large financial burden on the employers, it includes a gateway to exempt small businesses with fewer than 50 employees if it “would jeopardize the viability of the business as a going concern.” (Section 110(a)(3)).

What benefits are due? Under the Expansion Act, the first ten (10) days of leave for a public health emergency may be unpaid and during that time the employee may use accrued time. After that, the employer “shall provide” paid leave of not less than two thirds of an employee’s regular rate of pay based on the number of hours he or she would normally work, “not to exceed $200 per day and $10,000 in the aggregate.” (Section 110(b)). Consult your labor counsel with any questions regarding calculating amounts due as they may vary based on specific facts. In the case of multi-employer collective bargaining agreements, the payments may be made to a multi-employer fund that provides paid leave to employees.

Although the Expansion Act increases the burden on small businesses in some ways, it loosens it in others. First, it exempts businesses that do not have “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year” from the enforcement provisions of the FMLA. (Section 110(a)(1)(B)). Those provisions make an employer civilly liable if it interferes with an employee’s ability to obtain FMLA benefits. (Section 107). Second, it exempts businesses with fewer than 25 employees from the requirement that an employee’s position be restored upon return from FMLA leave in these scenarios: a) when leave is taken under the “public health emergency” provision, b) when the position no longer exists due to economic conditions or other changes in operating conditions, c) when the employer makes reasonable efforts to restore the employee to a similar job, and d) when the employee contacts the employee to offer an equivalent position. (Sections 104(a), 110(d)).

Notably, leave under the Exemption Act is limited and will be allowed only through December 31, 2020. Hopefully, school closures and other shelter in places orders will be lifted long before that. If not, we may see an amendment to that deadline.

To summarize, the Emergency Family and Medical Leave Expansion Act generally allows any employee working for an organization with fewer than 500 employees, that has been employed for at least 30 calendar days, to request FMLA in order to care for a minor child who’s school or daycare has become unavailable due to the current COVID-19 pandemic. When eligible, an employer must pay at least two-thirds of that employee’s regular pay (excluding the first ten days) not to exceed $200 per day or $10,000 total.

Emergency Paid Sick Leave Act

Until December 31, 2020, this new legislation mandates private employers with fewer than 500 employees and non-private employers with more than 1 employee, to provide non-carry over paid sick time (80 hours for full-time employees and for part-time employees what they would have worked over two weeks) for any employee that cannot work due to one of the following reasons:

1. The employee is subject to a government-mandated COVID-19 isolation order or quarantine,
2. The employee has been advised to self-quarantine by a health care provider,
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis,
4. The employee is caring for an individual who (a) is subject to a government-mandated COVID-19 isolation order or quarantine, or (b) has been advised to self-quarantine by a health care provider,
5. The employee is caring for their child whose school has been closed or child care provider is unavailable due to COVID-19 precautions, or
6. “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”
   

The benefits are paid at the employee’s regular rate of pay or the minimum wage, whichever is higher. (Section 5110(5)(B)(i)). Benefits are limited to $511 per day or $5,110 in the aggregate if leave is taken for items 1, 2, or 3. They are limited to $200 per day or $2,000 in the aggregate if leave is taken for items 4, 5, or 6. (Section 5110(5)). Also, if leave is taken under items 4, 5, or 6, compensation is paid at two-thirds of the applicable pay rate. (Section 5110(5)(B)(ii)). The Secretary of Labor may exempt small businesses with fewer than 50 employees if it would “jeopardize the viability of the business…” (Section 5111).

An employer or the Secretary of Labor may elect to exclude health care provides or emergency responders. (Sections 5102, 5111). Also, employers participating in multi-employer collective bargaining agreements may fulfill the requirements by contributing to a multi-employer fund that provides the employee with sick time. (Section 5106).

However, an employer may not require an employee to find a replacement employee to cover his or her shift. An employer also may not require an employee to first utilize accrued time. (Section 5102). An employer also may not “discharge, discipline, or in any other manner discriminate against” an employee that takes leave under the Act or institutes proceedings under the Act. (Section 5104). Employers are mandated to keep a posted of these benefits, which will be available in the near future. (Section 5103).

An employer that fails to pay sick leave or terminates an employee for use of this Act will be considered to be in violation of the Fair Labor Standards Act of 1938 subject to penalties. (Section 5105).

The Emergency Paid Sick Leave Act is very similar to the Expansion Act described above, but far broader. Pursuant to section 5107, it does appear that an employee can seek benefits under both Acts.

Keep an eye on our website for additional analysis and webinars, including the state of Temporary Disability Indemnity issues following COVID-19.

By: Brenna Hampton (Office Managing Partner - San Diego)

Governor Newsom just announced an Executive Order creating a temporary, rebuttable presumption of industrial injury for employees at work who contracted COVID-19 between 3/19/2020 – 7/04/2020. Here are the highlights:

– Rebuttable presumption with 4 requirements (all 4 must be satisfied):

• Positive test or confirmed diagnosis required.  Must test positive within 14 days after the EE performed labor / services at their place of employment
• Labor / Services were performed after 3/19/2020.
• Does not apply to work done remotely at the employee’s home or residence
• If presumption is based on a diagnosis (as opposed to a positive test), the diagnosis must have been done by a physician  who holds a physician and surgeon license issued by the California Medical Board, and confirmed by further testing within the 30 days of the date of diagnosis.
  

– The presumption of compensability applies for 60 days from 5/06/2020.

– REDUCED period to deny (30 days instead of 90) – 30 days from filing of the claim form, unless rebutted by evidence discovered after the 30-day period.

– LC4850 / Temporary Disability:

• Must test positive or be diagnosed on or after 5/6/20.
• Must be certified within the first 15 days after the initial diagnosis
• Must be recertified every 15 days within the first 45 days, then every 45 days following diagnosis OR EE who has tested positive may obtain a certification within 15 days of 5/6/20 documenting the period of temporary disability and must be recertified every 15 days thereafter for the first 45 days following diagnosis.
• Paid sick leave benefits available in response to COVID-19 must be used and exhausted before TD/4850 are due/payable. No waiting period for TD benefits.
  

– If death results, no benefits payable to the state (Death without Dependents Unit)

– Apportionment to permanent disability allowed under LC4663 and LC4664.

– Standard workers’ compensation benefits – no specific reimbursement for PPE, lodging or other expenses, like those contemplated by the proposed AB664. The Executive Order makes employers liable for full hospital, surgical, medical treatment, disability indemnity, and death benefits in the event of industrial COVID-19.

Pending Presumptions – AB664,  SB 1159, SB 893 (hospital workers), AB 196 (“essential” workers)

There are now four proposed California state bills addressing issues related to COVID-19. The legislature reconvened this week so we anticipate something soon. Until then, discovery should proceed as usual and employers and their agents should strive to remain in compliance with the 5/06/20 Executive Order.  It can be anticipated that the California legislature as well as the industry at large will assess the response and results from today’s executive order for further guidance.

The four proposed bills discussed below attempt to close gaps, add protection for certain workers, and generally expedite the provision of benefits to injured California employees.  In a rebuttable presumption, the effect is to shift the burden of proof away from the employee such that the employer must disprove that the alleged injury is industrial. With a conclusive presumption, the employer loses the right to do this at all and, once exposure is shown, the employer must provide all related benefits.

Bill #1: Assembly Bill 196 – Presumption for broader group of essential workers, conclusive

This bill was introduced in January, but amended yesterday, 5/05/20 and would create a conclusive presumption of industrial injury for “essential employees” with COVID-19 occurring on/after 3/01/2020 and extending for a period of up to 90 days following the last day of actual work.

The Bill would define essential employees as those defined in Governor Newsom’s Executive Order N-33-20, which alludes to 16 critical infrastructures, or those who are “subsequently deemed essential”. https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19. Certain employees would be excluded – active firefighters, peace officers, and health care employees who provided direct patient care, likely because they are already covered by existing or proposed presumptions for COVID-19.

Here is the link to the proposed text:

http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB196

Bill #2: Senate Bill 893 – Presumption for hospital employees, rebuttable

This bill was proposed 1/28/2020 and would define “injury” for a hospital employee who provides direct patient care in an acute care hospital to include infectious diseases, musculoskeletal injuries, and respiratory diseases when those conditions arise or manifest during employment.  Here is the link to the proposed text:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB893

Respiratory disease is clearly defined in the proposed bill to include COPD, asthma, COVID-19, and other respiratory diseases caused by novel pathogens. Musculoskeletal injuries are broadly defined to include acute injury or cumulative trauma of the muscles, tendons, ligaments, bursas, peripheral nerves, joints, bones, or blood vessels.”  The proposed bill would create a rebuttable presumption that these types of injuries are industrial.  This is extremely broad language that would open the door for hospital workers providing acute care to receive extensive benefits for a variety of everyday injuries.

The presumption would also be extended for a period of three calendar months for each full year of employment, up to 60 months from the last date actually worked. MRSA infections would extend to a hospital employee following termination of employment for 90 days from the last date of actual work.  Respiratory conditions would be extended for up to 120 months from the last date of work.

One area of concern is the proposed language that if one of these conditions develop in a hospital worker who provides direct patient care in an acute care hospital would not be “attributed to a disease that existed before development or manifestation.”  It sounds as though the intent is to prevent apportionment of permanent disability, though unlike the proposal in AB 664, there is no clear intent to amend LC4663 stated in the proposed SB893.

Bill #3: Senate Bill 1159: Rebuttable presumption, with broader application to “critical employees” of essential employers

This preliminary proposal for SB 1159 is more balanced than AB 664 that has also been proposed. AB 664 wanted to remove apportionment and would create a conclusive presumption that COVID-19 is work-related. SB 1159 would create a “disputable” (rebuttable) presumption, would not alter the laws regarding apportionment, but it would potentially impact a much broader array of employees, which are not fully defined.

SB 1159 (not yet law) would create a rebuttable presumption of work-related COVID-19 for “critical employees.” This seems to be defined loosely and will be subject to interpretation (see below): (2) “Critical worker” means a public sector or private sector employee who is employed to combat the spread of COVID-19. It is the intent of the Legislature that this group of workers be explicitly identified in order to ensure that they receive all necessary health care through the workers’ compensation system. 

This bill appears to be aimed at first responders, not just employees of essential businesses. This is likely to be a hot button topic during discussion once the Legislature reconvenes.  With the new Executive Order, the Governor has indicated the intent to cover a broad swath of the workforce, but, again, the definition remains subject to various perspectives and legislative approval.

Here is a link to the proposed bill:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159

(proposed Labor Code Section 3212.86)

 (a) This section applies to critical workers who directly interact or previously directly interacted with the public during the COVID-19 pandemic.

(b) The term “injury,” as used in this division, includes illness or death resulting from exposure to COVID-19 if all of the following circumstances apply:

(1) The injury develops or occurs during a period in which a critical worker is in the service of an essential critical infrastructure employer.

(2) The injury is confirmed by a positive laboratory test or, if a laboratory test was not available, as diagnosed and documented by the critical worker’s physician based on the employee’s symptoms.

(3) The injury results in hospitalization or significant lost time beyond the critical worker’s work shift at the time of injury of at least ____ days due to the illness.

(c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.

(d) An injury that develops or manifests itself while a critical worker is employed is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.

(e) For purposes of this section, the following definitions apply:

(1) “COVID-19” means coronavirus disease 2019.

(2) “Critical worker” means a public sector or private sector employee who is employed to combat the spread of COVID-19. It is the intent of the Legislature that this group of workers be explicitly identified in order to ensure that they receive all necessary health care through the workers’ compensation system.

(f) This section shall remain in effect only until January 1, ____, and as of that date is repealed.

Bill #4 (Assembly Bill 664) – the conclusive presumption, more liberal benefits contemplated

AB 664 (Cooper and Gonzalez) proposes to amend the California apportionment statute (LC 4663) as well as add COVID-19 to the definition of communicable diseases, a presumption for certain safety officers. This would also add “certain” hospital employees. As of right now, it does not specifically reference any other types of employees, which is surprising, but it appears to be a deliberate effort to streamline objections to the proposed bill and maintain consistency with existing LC3212 presumptions.

Specifically:

– AB 664, if passed, would add Corona Virus cases to the existing presumption for “communicable diseases” as an injury.

– Importantly, as proposed, AB 664 would also change the presumption to a conclusive presumption. Current law holds that the presumption is rebuttable by evidence. Making it a conclusive presumption means that a positive test = industrial injury for those employees, regardless of evidence of other exposure or pre-existing injury.

– The bill would also amend the apportionment statute to prevent employers from reducing permanent disability related to Coronavirus. Let’s say, for example, that an employee subject to this bill (again, if passed) had a history of lung transplant (or even severe pneumonia with lung damage), if the employee contracted coronavirus, any lasting damage to the lungs after coronavirus would be the employer’s burden.

Here is the text, as amended in Committee:

http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB664

Before it becomes law, it will go back to the floor for discussion and approval of the amended bill, there will hopefully be further amendments (ie: to make the presumption rebuttable) and then the Governor would need to review and approve it.

I see this as having two intents: 1) protect safety officers and hospital employees by ensuring a broad swath of benefits and eliminating judicial challenges to their benefits. There is likely great public and political support for this; and 2) an opportunistic taking advantage of the current state of affairs to strengthen existing laws in favor of the injured workers, with the goal of eroding apportionment in the long-term. Apportionment is the principal that employers in California are only liable for permanent disability directly resulting from an industrial injury.

Clarification will be required if this passes in its current form. For example, it is proposed for any COVID diagnosis post 1/1/2020 even though the Shelter in Place order didn’t come down until 3/04/2020. Who would be the excluded hospital employees if only certain hospital employees are covered? Would that be limited to hospital employees in direct contact with COVID-19, or all hospital employees working at a medical facility after 1/01/2020? It would seem that it should only extend for 14 days following termination of service rather than 90 days since the current medical authorities seem to think that’s the period within which symptoms are likely to manifest. Perhaps the 90 days was contemplated based on the 90-day delay period? Much is left open in its present state.

As to a conclusive presumption, the WCIRB has issued an estimate of the potential costs, and it is staggering. The WCIRB has estimated<https://wcirb.com/news/wcirb-releases-cost-evaluation-conclusive-covid-19-presumption> the cost of the presumption in AB 644 could range from $2.2 billion to $33.6 billion. The WCIRB estimates the midrange cost for the bill to be $11.2 billion, including $6.7 billion in medical costs and $3 million in loss adjustment expenses. For context, total work comp payments in 2018 were $23.5 billion, including $6.9 billion in medical benefits and $4.8 billion in loss adjustment expenses. (Click here to read more:

http://ww3.workcompcentral.com/news/story/id/eb701244be964c8e6842d0c7714f85108f6dceef)

In the past few years there have been several unreported cases in which the Appellate Division has found a violation of the due process rights of respondent.  McGory v. SLS Landscaping, A-4837-18T2 (App. Div. May 8, 2020) presents the first reported case in many years on the violation of a party’s due process rights, in this case the rights of the petitioner.

The facts of this case are very unusual.  Petitioner fractured his foot jumping from a loft on the premises of respondent after retrieving a bucket.  Petitioner, a young man, refused medical treatment offered by his supervisor, Nicole Caruso.   He later went to the hospital and sent a text message to Caruso stating that he would use his personal health insurance because he felt that the accident was his own fault. 

At the hospital petitioner was asked how he hurt his foot, and he said he fell off a roof cleaning the gutters at home.  In his affidavit in support of his motion for benefits, petitioner explained that he misrepresented the truth partly because he did not understand workers’ compensation and partly because he feared negative consequences at work for his conduct in jumping rather than using the ladder. 

According to his affidavit, when petitioner got home he discussed the accident with his parents, who explained how workers’ compensation worked and advised him to accurately report what happened.  He then tried to contact the medical provider to correct their records.  Respondent initially authorized care by a local surgeon, but later respondent denied the claim when it received medical records stating that petitioner injured himself at home. 

At the first hearing on 4-17-19 on a motion for medical and temporary disability benefits, the Judge of Compensation asked whether respondent would be filing a fraud motion to dismiss the case. Defense counsel answered in the negative. The Judge advised the parties that petitioner had a right to remain silent in the event of any fraud allegations.   The Judge of Compensation noted that petitioner’s counsel’s moving papers might constitute a prima facie case, and he advised respondent to produce its witnesses.

Respondent’s first witness was Sam Waddell, the owner of the company.  He said that he was not on the premises at the time, but his manager notified him by phone that petitioner jumped off the loft instead of descending a ladder.  The manager tried to persuade petitioner to see a doctor but petitioner declined.   Ms. Caruso testified next that she heard the sound of the impact on the ground but did not actually see petitioner jump.  She observed petitioner was in a great deal of pain and offered him medical care, which he declined.  Caruso completed an accident form.

The matter was adjourned until May 29, 2019, after the judge noted that he did not understand why petitioner had jumped and considered whether this might constitute horseplay.  The day before the May 29 hearing, respondent’s counsel filed a motion to dismiss for failure to sustain proofs.  At the May 29 hearing, the judge reconsidered whether this case constituted fraud on the part of petitioner.  The judge also questioned whether petitioner misrepresented that he was going to use his own personal medical insurance when his insurance was actually provided by Medicaid. The judge commented that it was not honest for petitioner to claim he was using his own insurance when it was taxpayer funded. 

Without any testimony by petitioner, the Judge of Compensation noted that petitioner had misrepresented the facts to the medical providers in stating that he had been injured cleaning his gutters at home and misrepresented having his own health care insurance. The judge dismissed the claim petition without prejudice commenting that petitioner was a multiple liar. The Judge further said to counsel for petitioner:  “If you can prove to me he’s honest, you can begin to present your case.  If you cannot prove to me he’s honest, then under the circumstances the motion to restore is questionable.”

Petitioner did not file a motion to restore the case and instead authorized his attorney to file a Notice of Appeal with the Appellate Division.   The judge scheduled the matter for another hearing on June 19, 2019.  Counsel for petitioner argued that there was no basis for further proceedings since the case had been dismissed on May 29, 2019 and no motion to restore had been filed.  Petitioner was in court and was ready nonetheless to testify.  The judge would not permit any testimony by petitioner because no motion to restore had been filed. 

On July 9, 2019 petitioner filed a Notice of Appeal of the May 29, 2019 dismissal without prejudice.  On July 10, 2019 the Judge of Compensation conducted the final hearing.  Petitioner’s counsel indicated that his client would not testify since the Notice of Appeal had already been filed. The Judge of Compensation then ruled on the case and the motion, dismissing both with prejudice and stating that petitioner’s conduct in jumping from the loft was not compensable as it constituted willful misconduct.

On appeal petitioner argued that his client had been denied his due process rights to testify and present evidence supporting his claim.  The Appellate Division agreed, adding that there was no requirement that a petitioner prove he is honest before giving testimony. 

The Court observed: “We have held that, in accordance with due process principles, the opportunity to be heard ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.”  The Court added, “The judge also erred by making credibility determinations and findings of fact on the merits of petitioner’s claims based solely on the judge’s interpretation of petitioner’s affidavit, without hearing petitioner’s testimony and after only hearing Caruso’s and Waddell’s testimony.” 

Finally, the Court criticized the judge for stating that the petitioner’s case did not rise to the level where consideration of the evidence was necessary. 

As a side matter, the Court also observed in a footnote that the May 29, 2019 order dismissing the claim petition was an interlocutory order because there was still an opportunity to restore the claim petition, citing Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997).

The Appellate Division reversed both the order to dismiss without prejudice and the order to dismiss with prejudice.  The Court remanded the case for further proceedings with a different judge.

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

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: Jeannette Herrera and Pat McAleer

As our daily lives and businesses are disrupted by the current health crisis, questions have arisen as to whether COVID-19 illnesses must be reported to the California Occupational Safety and Health Administration (“Cal-OSHA”). Generally, an employer must notify Cal-OSHA if: 1) there is a confirmed case of COVID-19, 2) COVID-19 caused serious injury or illness or death, and 3) said injury, illness, or death occurred at work.

Effective January 1, 2020, AB 1805, codified in Labor Code section 6302, amended the definition of serious injury or illness to align with Federal OSHA regulations. Now, a serious injury or illness includes all inpatient hospitalizations, regardless of the length of stay, unless the hospitalization is for medical observation or diagnostic testing. The previous requirement that inpatient hospitalizations last for more than 24 hours was removed. In other words, COVID-19 would qualify as serious if an employee requires any hospitalization other than for observation and for testing if the exposure to and contraction of the illness is work-related.

While most people who contract COVID-19 experience mild symptoms, a minority of people experience more severe symptoms, including difficulty breathing and even death. Practically speaking, an employer would have difficulty determining the severity of an employee’s symptoms if no medical treatment is sought, let alone being able to confirm an employee has COVID-19. Rather, an employee would likely have to test positive for COVID-19 and have symptoms severe enough to warrant hospitalization. Many medical facilities are not even testing for COVID-19 until the individual is hospitalized. Thus, an employee’s work-related COVID-19 contraction will not likely constitute a serious illness unless the employee requires hospitalization.

Most importantly, like any workers’ compensation injury, there has to be a causal relationship between the employment and the contraction of COVID-19. If an employer believes an employee contracted a serious illness from COVID-19 at the workplace, it must be reported to Cal-OSHA and recorded on Cal-OSHA Form 300. If the employer has no reason to believe a serious illness from COVID-19 is related to work, there is no reporting or recording requirement.

Presuming the illness qualifies as serious, what happens if an employer is unsure whether an employee contracted COVID-19 at work? Title 8, California Code of Regulation (“CCR”) section 14300.5 mandates if an employer is unsure whether the employee contracted COVID-19 in the workplace, the employer must evaluate the employee’s work duties and environment to decide whether or not industrial events or exposures caused this illness. In other words, the employer must conduct a reasonable investigation to determine if the employer’s duties or environment exposed the employee to COVID-19. In low-risk industries, this will likely be extremely difficult to prove.

There are relevant exemptions to what constitutes a work-related injury. Regulation section 14300.5 specifies exemptions to include if an employee’s symptoms surfaced at work but results from a non-work-related event. Notably, this section also exempts the common cold or flu from constituting a work-related injury. However, the regulation delineates that contagious diseases such as tuberculosis, brucellosis, hepatitis A, or the plague do not fall within this exemption. By comparison, COVID-19 appears more analogous to a contagious disease based on the potential for severity of illness and current epidemic. Simply put, unlike the common cold and flu, COVID-19 is not likely to qualify as an exempted work-related illness.

In circumstances where an employer is required to report COVID-19 to Cal-OSHA, the employer could be fined if the illness resulted from a workplace hazard. Title 8, CCR section 334 provides if there is a “realistic possibility” of death or serious physical harm resulting from a workplace actual hazard, there is a rebuttable presumption of a serious violation. This Regulation defines an actual hazard to include an unsafe or unhealthful work environment resulting from the employer’s practices, means, and processes adopted. If Cal-OSHA determines the illness as caused by an employer’s failure to take reasonable steps to create a safe work environment in light of COVID-19, Cal-OSHA could issue a serious violation or accident-related serious citation. An employer can rebut this presumption by demonstrating it did not know or could not have reasonably known the presence of the violation. For example, if an employee can establish she contracted COVID-19 from a co-worker and the employer took reasonable safety precautions, no serious violation will issue. Employers should refer to OSHA’s Guidance on Preparing Workplaces for COVID-19 for recommended steps an employer can take to create a safe work environment as a way to insulate itself from serious safety violations.

In short, low-risk employers may not have to report to Cal-OSHA instances of COVID-19 contractions by employees. COVID-19 would have to cause an employee to suffer serious symptoms resulting in hospitalization or death but even then, there will be difficulty in establishing a causal relationship between the employee’s work duties and contraction of COVID-19.

On Friday, May 1, 2020, the Supreme Court of Iowa issued its decision in Anita Gumm v. Easter Seals, in which the Supreme Court agreed with the arguments that had been extensively briefed and then argued by attorneysLee Hook andTyler Smith on behalf of Easter Seals. The issue before the Court was:

        Whether a workers’ compensation claimant who receives disability benefits for a traumatic injury can later recover disability benefits on a separate cumulative injury claim if the cumulative injury is based solely on aggravation of the earlier traumatic injury.

FACTUAL BACKGROUND

The Claimant, Anita Gumm, sustained a serious left ankle fracture on October 28, 2008, while she was working, and subsequently underwent an ORIF procedure. Ms. Gumm received weekly benefits, and she received the last weekly benefit check on May 21, 2010. Ms. Gumm sought medical treatment for her ankle in the weeks, months, and years following the date of the injury, but also following the date of her last benefit check. Pursuant to Iowa Code §85.26(2), Ms. Gumm had until May 21, 2013, to file a Review Re-opening Petition. Ms. Gumm filed multiple petitions on February 24, 2014, alleging cumulative injuries (with various manifestation dates) to her left ankle with sequela complaints to her back including an altered gait. The case went to hearing on March 12, 2015. The Deputy found that Ms. Gumm failed to prove by a preponderance of the evidence that she sustained a “distinct and discrete” new cumulative injury, pursuant toEllingson, and awarded Ms. Gumm no additional benefits as her claim for any additional disability based on a worsening of her ankle (and sequela symptoms) for which she had previously received weekly benefits was time-barred by the three-year statute of limitations. Ms. Gumm argued at Hearing that the “distinct and discrete” requirement as set forth inEllingson was not applicable but rather Floyd should control, which Ms. Gumm argued would allow her to recover benefits for the amount of the “increase in disability” to her ankle and sequela symptoms that could be attributed to her cumulative work duties.

LEGAL ISSUES AND ARGUMENTS

In reaching its decision, the Supreme Court addressed two prior Supreme Court of Iowa cases on point:Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999) and Floyd v. Quaker Oats, 646 N.W.2d 105 (Iowa 2002). At each stage of the case, Easter Seals arguedEllingson was dispositive, and Claimant argued Floyd was dispositive. In the end,the Supreme Court, affirmed Ellingson and re-stated the acute-then-cumulative-injury claim (for same body part) standard: that the cumulative injury must be a “distinct and discrete” disability, not disability as a result of an aggravation of a previous traumatic injury. The Court framed the issue in Gumm as “whether the claimant has suffered an aggravation of her previous compensable injury or a distinct and discrete cumulative injury.”

The Court found that the Commissioner’s application of the distinct and discrete standard inEllingson was appropriate and therefore the Commissioner’s finding that Ms. Gumm failed to meet her burden of proof for a cumulative injury claim was based on substantial evidence and thus should not be disturbed because, as the Court inGumm noted: “whether a claimant has suffered an aggravation of a previous traumatic injury or a distinct and discrete cumulative injury is a fact issue to be determined by the commissioner.”

Overall, Gumm further supports and establishes the “distinct and discrete” standard for cases that involved traumatic-then-cumulative-injury claims initially put forth inEllingson and also accepted in Excel Corp. v. Smithart. 654 N.W.2d 891, 898 (Iowa 2002) (“The separate and discrete requirement prevents a worker from transforming a chronic condition into multiple injuries, and obtaining the multiple separate recoveries feared by [employers]. Thus, employers are protected against paying for the prior disability over and over by the separate and discrete requirement.”). The Supreme Court ultimately held:

        We therefore believe that the distinction drawn in Ellingson andSmithhart between cumulative aggravation of an existing compensable injury through the daily grind of working and a new, discrete injury remains valid in Iowa. In the former case, review-reopening is the recognized remedy if the claimant desires additional disability benefits. A claimant cannot avoid legislatively imposed restrictions by reclassifying an injury as a new injury unless the facts support that classification.

Regarding Floyd, the Court also articulated that Floyd is an exception toEllingson: “[W]here the claimant was precluded from recovering payments for the original trauma, the claimant would be permitted to recover payments on a cumulative-injury basis for subsequent aggravation of the trauma.” The Court further noted thatFloyd recognizes “that a claimant who is suffering the mounting, cumulative effects of a workplace trauma does not have to prove a distinct and discrete injury when the claimant never received an award for that trauma.”

CONCLUSION

In sum, this case is a win for employers and workers’ compensation carriers in Iowa as it affirmed theEllingson standard that a claimant must prove a – distinct and discrete – new cumulative injury was sustained, not an aggravation or increase in previous disability, when a claimant is alleging a cumulative injury to a body part that was previously injured as part of an acute or traumatic work injury. 

On April 24, 2020, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order concerning the holding of non-jury court proceedings by video or audio conference so long as the Alabama Supreme Court Order remains in place restricting in person hearing.  The Supreme Court Order, which was to expire April 30th, was extended to May 15th.

This Administrative Order included that judges shall have discretion to hold virtual court hearings in all non-jury proceedings which includes civil non-jury trials, such as workers’ compensation cases.  The Order states that the hearing shall be held via Zoom software unless the specific judge authorizes the use of a different software.  It is the responsibility of any party seeking to have a witness testify to make that witness available via virtual hearing.  This can include the witness being available from their home or going to the attorney’s office.  The Order also states that the parties are to adhere to the social distancing requirements.  The Order gives any party the right to object to a virtual hearing at which time the court will review and make a determination.  The Order also provides methods for exhibits to be introduced as well as authenticated.

MY TWO CENTS

Obviously, there are some benefits to moving forward and allowing cases to proceed to trial but there are some issues that may be prejudicial.  With a virtual hearing there is no way for any party and/or the court to know if there is anyone else in the room with a witness.  While this would obviously be unethical and sanctions could be issued, someone could easily be in the same room as the witness coaching and/or assisting with responses.  Further, a an effective line of questioning could be stopped by ending the transmission and ineffective technology could be blamed. 

Another aspect that is lost in a virtual trial would be the court’s ability to observe body language.  While the hearing is virtual the ability to view someone via camera on a computer is a lot more obstructed than viewing someone live in a courtroom.  In addition some software, including Zoom, only allows one person to talk at a time.  This could create a problem if an individual was talking and opposing counsel or someone else involved in the hearing sought to make an objection.  While we believe the objection would ultimately be heard it may be too late because the question was already asked and/or answered. 

In regards to witness availability, this could create some difficulty because a witness may not have the capabilities to participate in a virtual hearing but at the same time may not be willing to go to the attorney’s office. The Order makes it the responsibility of the parties to have a witness available and this could create prejudice in a situation where a witness is needed to testify but that witness cannot be present via their own technology at home nor can they go to the attorney’s office to testify.  Also, while the Order does indicate that it would assist with pro-se or non-represented parties in being able to secure and/or find somewhere to have the technology to proceed it could create issues for non-represented litigants in the event that they do not have the capabilities themselves to participate in a virtual hearing and are unwilling, or not comfortable, going to a public place or some other location to do so. The Order does give the parties the right to object to a virtual trial but it is at the Court’s discretion to grant the objection.

Finally, the Order specifically addresses how exhibits are to be handled.  However, it seems that questioning and/or cross examining a witness using rebuttal evidence could be difficult in a situation where it was unexpected that you were need it and it was only admissible as rebuttal evidence.  Presenting that evidence to the witness and questioning them on it could create difficulty since it would not likely have already been pre-admitted and/or presented to the court.

About the Author

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.