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.
Employee has contracted COVID-19
KRS 342.0011(1) requires psychological, psychiatric, or stress-related claims to be a direct result of a "physical injury." In other words, Kentucky does not recognize mental-mental claims. There is no Kentucky case precedent holding that a disease condition constitutes a "physical injury." Therefore, contracting COVID-19, in and of itself, does not give rise to a psychological claim.
Kentucky courts have held in certain circumstances a “physically traumatic event” may give rise to a psychological claim. For example, the Court held a police officer who performed CPR on an individual he had just shot three times, which included skin contact with subject’s blood and body fluids, constituted a “physically traumatic event.”Richard E. Jacobs Group, Inc. v. White, 202 S.W.3d 24 (2006). A police officer who was physically assaulted by a knife wielding suspect suffered a “physically traumatic event.”Lexington-Fayette Urban County Government v. West, Ky., 52 S.W.3d 564 (2001).
Based on the foregoing, for a COVID-19 exposure or condition to give rise to a psychological claim, there must be an underlying “physical injury” (other than COVID-19), or a physically traumatic event. For example, intubating a patient, administering an IV or putting a patient on a respirator does not constitute a physical injury or a physically traumatic event, absent aggravating circumstances.
Employee is fearful of contracting COVID-19
Kentucky does not recognize mental-mental claims. For example, if an employee has an emotional reaction to job stress, absent a physical injury, there is no basis for a psychological claim. The fear of contracting COVID-19, in and of itself, would not give rise to a psychological claim.
Factual Analysis
Psychological claims associated with COVID-19 mandate a detailed, factual analysis of each and every claim. One key fact may change the outcome.
Jones Howard Law, PLLC will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.
H. Douglas Jones, Esq.
djones@joneshowardlaw.com
Mark W. Howard, Esq
mhoward@joneshowardlaw.com
Troy W. Skeens, Esq.
tskeens@joneshowardlaw.com
Margo J. Menefee, Esq.
mmenefee@joneshowardlaw.com
I had a recent discussion in relation to an upcoming COVID-19 webinar with former Supervising Judge of Compensation, Ray. A. Farrington, who sat in Hackensack, N.J. Judge Farrington raised an important question about what employers can do when employees ignore safety rules concerning COVID-19 in respect to both workers’ compensation and employment law.
Suppose an employer has a strict requirement that an employee must wear a mask at work to protect the employee and others. Suppose further that one employee repeatedly ignores the rule and eventually becomes sick with coronavirus and then brings a workers’ compensation claim. Is there a valid defense to the claim based on the employee’s willful failure wear his mask?
The answer is yes, if the employer complied with the terms of N.J.S.A. 34:15-7. That provision states that the willful failure to make use of a reasonable and proper personal protective device furnished by the employer is grounds for denial of the workers’ compensation claim if the employer has clearly made this a requirement of the employment and has uniformly enforced this rule. For this defense to work, the employer has to properly document that despite repeated warnings, the employee willfully failed to properly and effectively utilize the protective device, and that conduct led to the work illness, in this case the virus.
A second question in this scenario is whether the employer can terminate someone who fails to utilize required protective devices. As Judge Farrington posed the question: “Can the employer have a zero tolerance policy?” For the answer we turn to Ralph Smith, Esq., Co-Chair of Capehart’s labor law department. Ralph responded, “If you are a non-union employer, firing under a zero tolerance policy for a lack of mask use would no doubt be allowed because failing to follow such a directive would be insubordination, and insubordination is subject to discipline, including possible discharge.” He added, “Progressive discipline would be unnecessary unless the employer has a policy where progression is required, though most employers carve out from progressive discipline serious workplace infractions.” Ralph added that given the risks of COVID 19, not wearing a mask could have serious health consequences for others and should be considered a serious infraction.
The answer is more nuanced if the employer is in a unionized setting. Ralph explained, “I would think that discipline would be an issue which would have to be addressed with the union, it being considered a term and condition of employment, but if you already have a CBA (Collective Bargaining Agreement) with a progressive discipline policy, you would need to follow that and likely would not be able to go directly to termination.” Ralph suggested that in a union setting it would be wise to discuss the employer’s plans involving mask usage with the union. He added, “Unions have the same safety incentive as employers do, so I suspect the employer would not get very much pushback on requiring mask usage and disciplining for non-use, short of termination for a first violation.”
Finally, Ralph made an important point about reasonable accommodations. “In both union and non-union contexts, an employer might have to accommodate someone who refuses to wear a mask, or is unable to do so, because of health reasons. This is an exception even under Governor Murphy’s Executive Orders.” He added that the employer may need to address whatever the underlying disability is which precludes mask use just as the employer would for any disability. The question becomes whether the employer can make adjustments that accommodate the health problem and still maintains a safe working environment.
Thanks to Judge Farrington and Ralph Smith, Esq. for their contributions to this blog.
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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.
On April 30, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order which extended all previously issued administrative orders related to COVID-19. As a result, the following rules will remain in place through May 15, 2020:
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.
For case summaries from decisions at the Minnesota Workers' Compensation Court of Appeals current through March 2020, please click the link below.
https://cwk-law.com/wcca-case-summaries-through-march-2020/
The Office of Administrative Hearings and Minnesota Department of Labor and Industry are continuing to update the method of handling appearances for the foreseeable future due to COVID-19. CWK will monitor and keep you updated as important announcements are made. Below is a summary of how these appearances are being handled for the time being.
At the Office of Administrative Hearings, all in-person Hearings are being left to the parties’ and judge’s discretion. However, judges are typically only allowing in-person Hearings if the case involves a “priority situation.” Each will be handled on a case-by-case basis with some Hearings will be held by telephone or being continued. All parties are still required to abide by timelines for exhibits, including e-Filing at least one day in advance. Larger Hearing rooms are being used to accommodate social distancing guidelines for Hearings that have been deemed a “priority situation.”
All other appearances at OAH will be held by telephone only for the foreseeable future. This includes Mediations, Asbestos Conferences, Settlement Conferences, Minn. Stat. 176.239 Conferences, Minn. Stat. 176.106 Conferences, Pretrial Conferences, Motion Hearings, and Attorney Fee Hearings.
At this time, all appearances at the Minnesota Department of Labor and Industry, including Medical Conferences, Rehabilitation Conferences, and Mediations are also being held by phone only. The parties are still expected to abide by deadlines for submitting exhibits.
Different guidelines have been implemented by the Minnesota Judicial Branch for district court proceedings. Please feel free to contact a CWK attorney with any questions regarding any court proceedings.
On Tuesday, April 7, 2020, the Minnesota Legislature passed a bill, which now provides certain employees the benefit of a presumed occupational disease under Minnesota workers’ compensation if they contract COVID-19. Specifically, employees working in first responder or healthcare occupations will be presumed eligible for workers’ compensation benefits if they either test positive for COVID-19 or are diagnosed by a licensed physician, physician’s assistance, or APRN without a test. In the situations where a test has not been done, a copy of the written documentation of the diagnosis shall be provided to the Employer and Insurer. The following occupations fall into this presumption:
In summary, if an employee shows that he or she works within one of these occupations and either tests positive for or is diagnosed with COVID-19, the burden of proof will shift to the employer and insurer to rebut the presumption. Employers and insurers will still be able to show that the employment was not a direct cause of the disease, however it will be much more difficult to prevail on a denial of liability when one of these types of employees contract COVID-19.
To note, the date of injury in these situations shall be the date the employee is no longer able to work due to a diagnosis of COVID-19 or due to the symptoms later diagnosed as COVID-19, whichever occurs first.
For all other employees not included in the list above, claims can still be pursued under an occupational disease or personal injury theory. Under these types of claims, the employees will not entitled to the presumption described above, and will be held to the burden of proof.
This law goes into effect immediately.
Please feel free to contact a CWK attorney with any questions on this new bill, and be sure to note any ongoing claims involving an employee in one of these types of occupations.
https://www.house.leg.state.mn.us/dflpdf/a7308a83-b58d-4578-93b1-1ac3f8475906.pdf
Proposed Senate Bill 2380 sponsored by New Jersey Senate President Stephen Sweeney seeks to create a new legal presumption of compensability for “essential employees,” including public safety workers and virtually all health care workers who file COVID-19 workers’ compensation claims. This proposed presumption would require the Judge of Compensation to presume that any COVID-19 claim for public safety and health care workers must be found to be work related unless the employer could rebut the claim by “clear and convincing evidence.” There exists no presumption in the New Jersey Workers’ Compensation Act that requires an employer in any circumstance to rebut a claim by clear and convincing evidence. There is a very good reason for that: the standard would be impossible to meet for employers, and it would in effect make employers strictly liable for all COVID-19 cases, whether the claims are causally related or not.
There are both legal and practical reasons that enhanced legal presumptions do not make sense in the context of this pandemic. Consider the legal issue first. For an occupational disease to be compensable it must be proven to arise out of the employment and be produced by causes which are characteristic of or peculiar to work under N.J.S.A. 34:15-31. But the COVID-19 virus is ubiquitous. It spreads wherever people congregate: including churches, grocery stores, post offices, and crowded beaches. Millions of people have the virus and don’t know it. COVID-19 claims are not like traditional occupational disease claims such as black lung among coal miners or Legionnaire’s Disease among workers in an infected building who breathe in the bacteria. These kinds of occupational disease claims clearly meet the test of being peculiar to a particular work environment.
COVID-19 illnesses arise when the virus spreads in any close human contact, whether it is through work or outside work. We all understand how easily the virus can be spread in any life circumstance. A New Jersey family had a gathering in late February that led to the tragic death of four family members from the coronavirus. Other family members also got sick. Sixty choir members in the State of Washington met to practice on March 6, 2020. They sanitized and kept their distance from one another. Within days 45 of 60 choir members became ill because the virus was spread through the air when they sang.
Hospitals, health care providers and public sector employers, their carriers and excess carriers, are now inundated with COVID-19 claims. This is putting enormous financial strain on public sector and hospital budgets at a time when Americans have expressed profound concern about rising health care costs, high taxes, and unfunded pension plans. These claims are now beginning to work their way into the workers’ compensation systems of each state. The good news is that there are already adequate laws In New Jersey to deal with COVID-19 claims without creating an ultra-high legal presumption for a virus that is in every state and every country.
Judges understand that health care workers and public safety workers often work in close proximity to people who may be infected. They may also have non-work exposures as well. In assessing whether any COVID-19 virus arises from work, workers’ compensation judges draw on their expertise in sorting out complex causation issues, factoring in work and non-work exposures. For example, they evaluate claims for alleged cancer from second-hand smoke, Lyme disease, lead exposure, and other environmental claims. In doing so, workers’ compensation judges use a more probable than not legal standard. In fact, there already is a presumption in the 2019 Thomas Canzanella Twenty First Century First Responders Act that shifts the burden to employers to disprove certain claims involving public safety workers by the more probable than not standard. The proposed coronavirus presumption not only shifts the burden of proof to employers but it imposes an extremely high legal presumption on employers that directly conflicts with the 2019 legal presumption created under the Thomas Canzanella law.
Public policy is important, and the wrong policy is to vastly increase the financial burden on health care, government and their carriers by making virtually all COVID-19 claims compensable through an unrealistic new legal presumption. Carriers did not collect pandemic premiums from their insureds. Requiring government, health care employers and their carriers to pay all COVID-19 claims regardless of causation will add create enormous financial pressure on governments, taxpayers, health care providers and the insurance industry. These are the unintended consequences that can be foreseen by proposed S. 2380. Instead of creating an unrealistic legal presumption that makes a bad situation worse, elected leaders should focus on creating the equivalent of the current federal Paycheck Protection Program to help injured workers and to alleviate the insurance burden on health care, government and carriers.
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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.
On April 15th, 2020, the Department of Workers’ Claims (“DWC”) published guidance regarding Governor Beshear’s Executive Order (“Order”), dated April 9, 2020, on TTD benefits for employees removed from work due to COVID-19 exposure.[1] We offer the following analysis of the DWC’s position:
1) The scope of the Order is limited to the payment of TTD benefits for employees removed from work, by a physician, due to occupational exposure to COVID-19 and has no application to the resolution of other issues. The Order applies prospectively beginning on April 9, 2020.
2) Two classes of employees are created by the Order and a “good faith” denial is all that is required to deny TTD benefits in either class. Whether the denial is in “good faith” will depend on the specific facts involved and may require a medical opinion. The first class of employees (“Regular”) encompasses all workers. The second class of employees (“Presumptive”) encompasses certain enumerated workers as listed in the Order.
a. To qualify for TTD benefits, a Regular employee must show removal from work by a physician due to “occupational exposure” to COVID-19, causally related to work.[2] A note/report from a physician simply stating the employee is being removed from work due to exposure to COVID-19, without stating exposure was “occupational” and addressing causation, is a basis for a “good faith” denial of benefits.
b. For a Presumptive employee the presumption of “occupational exposure” is rebuttable.
3) TTD benefits are subject to offset by concurrent: unemployment benefits; FMLA benefits paid pursuant to the Families First Coronavirus Response Act; exclusively employer-funded disability/sickness/accident plan payments; and salary continuation.[3] For salary continuation benefits, the offset would be equal to the employee’s net income after taxes.[4]
Note: The DWC’s "Guidance" on TTD is not binding on an Administrative Law Judge in the resolution of any COVID-19 claim.
Jones Howard Law, PLLC will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.
H. Douglas Jones, Esq.
djones@joneshowardlaw.com
Mark W. Howard, Esq
mhoward@joneshowardlaw.com
Troy W. Skeens, Esq.
tskeens@joneshowardlaw.com
Margo J. Menefee, Esq.
mmenefee@joneshowardlaw.com
[1] DWC Guidance dated 4/15/2020,https://labor.ky.gov/Documents/COVID-19%20Executive%20Order%202020-277.pdf.
[2] Gov.’s Executive Order 2020-277 dated 4/9/2020,https://governor.ky.gov/attachments/20200409_Executive-Order_2020-277_Workers-Compensation.pdf.
[3]KRS 342.730(5) – (6). This offset applies to STD plans if fully funded by the employer.
[4] SeeKRS 342.730(7).
N.J.S.A. 34:15-79(a) is the source of considerable litigation in workers’ compensation. It provides that “Any contractor placing work with a subcontractor shall, in the event of the subcontractor’s failing to carry workers’ compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor.” There are many cases on the back end where an employee of a subcontractor is injured and brings a claim against the general contractor after the employee’s subcontractor is found to have no workers’ compensation coverage. But the case of Fournier Trucking v. New Jersey Manufacturers Insurance Co., No. A-1353-18T2 (App. Div. April 9, 2020), deals with the situation on the front end – after the policy of insurance is written and before any accident should occur. The focus in this case was on inaccurate information provided by the policy holder to NJM about the risks inherent in its business in order to reduce workers’ compensation premiums.
To appreciate the ruling in this case requires some understanding of the details of the trucking business at issue. Shippers would hire Fournier Trucking to deliver goods primarily to west coast states when the shippers had to deliver less than a full truckload of product or when they had to make deliveries to multiple locations. Fournier Trucking (hereinafter “FT”) would use its own employees to collect loads from its shipping company clients in the tri-state area and then gather them in its New Jersey warehouse. FT would hire independent motor carriers to then haul freight to west coast states. FT would coordinate communication between its customers and the independent carriers, but the carriers provided their own equipment. FT would send the customers an invoice and then pay the carriers for transport services.
The relationship between FT and NJM began in 2003 through an assigned risk policy. At that time FT indicated that it had no owner operators. In its initial audit NJM was of the understanding that FT used no subcontractors or owner operators. For the 2014-2015 policy year, NJM estimated an annual premium of $43,193 with a total annual premium of $45,579. However, an NJM auditor years later happened to notice a discrepancy in the number of drivers reported by FT and the number of drivers which FT listed in a federal licensing database. A site inspection ensued and NJM learned for the first time that FT used between 15 and 20 independent motor carriers for shipping. Naturally, NJM was concerned that it was exposed to much more risk than it had ever appreciated since injured employees of carriers without workers’ compensation coverage could be covered under the above provision in Section 79(a). Therefore NJM unsuccessfully sought information from FT about these carriers and their insurance certifications.
By July 2015 NJM still had not received any Form 1099s or certificates of insurance for the carriers that FT worked with to ship to the west coast. FT refused to provide any such information. NJM was left with no alternative but to estimate the remuneration paid by FT to the uninsured carriers at an amount of $100,000. That raised the total standard premium to $57,043 with the total cost of $70,980. FT protested. While FT insisted that it had agreements requiring the many carriers to maintain insurance, FT would not provide any proof.
On December 23, 2015, FT’s lawyer acknowledged for the first time that their motor carriers “in certain cases employ their own employees.” FT denied that it issued any Form 1099s to the carriers. Two months later, the FT Vice President of Operations denied to NJM that the carriers had any employees, contrary to the admission of their own counsel. She also said that $100,000 would easily cover all payments that FT made to its carriers. Later at trial the Vice President of Operations had to recant her representations and admit as well that the company was in possession of Form 1099s for some motor carriers it worked with in 2015. She also admitted that she never knew whether or not the motor carriers had employees.
Since NJM could not receive information on coverage for FT’s carriers, it did a second audit in 2016 and adjusted the premium for 2014-2015 to $344,001 with a total audited cost of $426,359. NJM indicated that it would not charge FT for any additional risk if the company would just demonstrate proof that the many carriers it worked with maintained workers’ compensation coverage for their employees. FT then sued NJM seeking injunctive relief. NJM counter sued for breach of contract and fraud under N.J.S.A. 34:15-57.4.
During discovery FT listed a total of 81 carriers that it utilized, 15 of which had multiple drivers. The trial judge granted summary judgment in favor of NJM on breach of contract counts and ordered FT to provide copies of information relating to its carriers, including 1099s, certificates of insurances, and names and addresses of the 15 carriers. The trial judge held that NJM was entitled to charge a premium for amounts paid to the uninsured subcontractors pursuant to N.J.S.A. 34:15-79(a).
On June 15, 2018, FT provided documents showing amounts paid to 15 carriers in 2014 totalling $2.59 million dollars, more than 25 times higher than the VP of Operations admitted. Only one of the carriers had workers’ compensation for its employees. Fourteen of the carriers FT was using had no workers’ compensation coverage for their own employees. NJM revised the new premium at this point to $145,321. On the remaining fraud count, the trial judge found that FT was well aware all along that its carriers had employees and had been well aware that it paid far more than $100,000 to its motor carriers. The judge found that FT purposefully and knowingly made misleading and false statements to NJM to avoid payment of additional premiums and withheld material information from NJM in violation of N.J.S.A. 34:15-57.4, the New Jersey Fraud Act.
The trial judge awarded NJM $254,329.17 for unpaid premiums of $145,231, simple interest of $7,603.44, costs of $6,802.73 and attorneys’ fees of $94.692. The judge further found that NJM’s witnesses were entirely credible while finding that FT’s VP of Operations was less than credible.
FT appealed to the Appellate Division which affirmed the trial judge on each issue. FT tried to argue that its motor carriers were independent contractors but not subcontractors under Section 79(a). The Court disagreed: “Because the shipping companies that hire FT for individual shipments exercise little control over FT’s transportation services, FT is clearly a ‘contractor’ for those shipping companies within the meaning of N.J.S.A. 34:15-79(a).” The Court added, “… subcontracting is merely ‘farming out’ to others all or part of work contracted to be performed by the original contractor.” The Court said:
Shippers hire FT to consolidate and transport goods. FT consolidates the goods itself and then subcontracts with the carriers to perform the transportation. Therefore, FT is a contractor, and the carriers it uses to fulfill part of its contracts with shippers are subcontractors.
Next, FT argued that carriers are not employees of FT but are independent contractors. For its part, NJM had already conceded this argument and had never argued that the carriers were employees of FT. Rather, NJM argued that the issue pertained to the employees of the motor carriers who might be injured. The Court said:
By operation of N.J.S.A. 34:15-79(a), to the extent these carriers fail to satisfy their statutory obligation, Fournier Trucking, as the general contractor, is obliged to provide benefits to any carrier employee who suffers an injury while providing services under Fournier Trucking’s general contract.
This opinion provides excellent clarity on the relationship between the terms “independent contractor” and “subcontractor” for purposes of Section 79. In effect, the Appellate Division was saying that for the purposes of Section 79, an independent contractor can be a subcontractor. The case also provides the best discussion of any modern New Jersey case on the duty of the policy holder to provide accurate and complete information to its workers’ compensation carrier and the ramifications of failing to do so. This case is unreported but merits reconsideration by the Committee on Publications.
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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.
Claimant was involved in a rear-end motor vehicle accident with acknowledged injuries to his neck and low back. For a brief time after the work accident, claimant was noted to have weakness in his lower extremities; however, those findings quickly resolved and did not return. Dr. Eskander proposed a two-level lumbar surgical procedure, designed to “free up the nerves.” Dr. Eskander maintained that the lack of neurological compromise was proof of spinal stenosis; however, Dr. Schwartz testified on behalf of the Employer that this is not the case and that this surgery should not occur on a normal neurological examination.
The Industrial Accident Board found claimant did not meet his burden of proving the surgery was reasonable and necessary treatment for his condition. The Board accepted Dr. Schwartz’s testimony and emphasized the importance of claimant’s lack of neurological findings across multiple examinations, particularly with respect to claimant’s normal gait and the lack of a positive EMG. While the Board accepted there was a period of neurological compromise, it cautioned that “one does not operate because, once upon a time, one had symptoms.” Further, without the presence of current neurological problems, the risk of a complicated two-level surgery was significant and not justified. The Petition was denied outright, and the surgery deemed unreasonable and unnecessary.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Raymond Thompkins v. Reynolds Transportation, IAB No. 1482461, March 13, 2020.