State News

Communicable disease cases require a very fact specific analysis. The definition of a compensable injury under Kentucky workers’ compensation law excludes communicable diseases “unless the risk of contracting the disease is increased by the nature of the employment.”[1] Unlike some other jurisdictions, in Kentucky the employee does not necessarily have to show the disease was contracted during employment.[2]  Communicable disease cases such as COVID-19 are compensable if the risk of acquiring the disease is greater for the employee than it is for the general public.[3]

Obviously the risk of contracting COVID-19 is higher for medical professionals and first responders than the public at large.[4] On March 13^th, 2020, Kentucky Employers Mutual Insurance Co. (KEMI) acknowledged this heightened risk, and in addition to compensation for losses resulting from contracting COVID-19, announced it would also pay wage-replacement benefits for any first responder or employee in the medical field who is quarantined due to direct exposure to a person diagnosed with COVID-19.[5]

In other professions it will be more difficult for the employee to show the risk of contracting COVID-19 was higher due to his/her employment versus the risk to the general public. This is especially true the more widespread the disease becomes. Again this will be a very fact specific analysis conducted on a case by case basis.

In order to protect your business and employees it is extremely important to minimize the risk of COVID-19 by following any and all state or local orders, mandates and advisories. On March 25^th, 2020, Kentucky Governor Andy Beshear issued an Executive Order closing all nonlife-sustaining businesses, except as needed to conduct Minimum Basic Operations, as defined in the order.[6] Certain enumerated businesses are permitted to remain open, but are required “to the extent practicable” to abide by the following:

1.    ensuring a distance of 6 feet between employees and customers;

2.    ensuring employees practice appropriate hygiene measures’ including regular, thorough hand washing or access to hand sanitizer;

3.    regularly cleaning and disinfecting frequently touched objects and surfaces;

4.    permitting employees to work from home where feasible; and

5.    identifying sick employees and asking them to leave the premises (strongly encouraged to offer paid leave).

In addition, public-facing businesses that remain open must post a flyer per Order of the Cabinet of Health and Human Services.[7]

The Kentucky Department of Workers’ Claims (DWC) has cancelled in-person proceedings and relaxed the rules for taking remote depositions.[8] The DWC has also published guidance promoting the use of telehealth and telephysical therapy when appropriate for the treatment of workplace injuries and occupational disease.[9]

On March 26, Governor Kay Ivey issued a proclamation that temporarily allows notaries who are licensed attorneys or operating under the supervision of a licensed attorney to notarize signatures through videoconferencing programs and confirm the signatures of witnesses who participate virtually through videoconferencing as if they were physically present at the signing.  In addition, any person who witnesses a document through videoconferencing technology can now be considered an “in person” witness, provided that the presence and identity of the witness is validated by the notary at the time of signing using the same identification that is required under current law.  The official date and time will be the date and time when the notary witnesses the signature via videoconference.  Further, all documents must be returned to the notary for certification and execution.  These new temporary rules will remain in effect for the duration of the public health emergency unless rescinded or extended by proclamation.

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.

Emergency Order 20-EO-03 COVID-19 State of Emergency - West Virgnia Workers' Compensation Insurance

 In Emergency Order 20-EO-03, entered March 23, 2020, Insurance Commissioner Dodrill ordered that normal time standards for claims handling applicable to workers' compensation insurers and other regulated entities as set forth in title 85, series 1, section 10, of the West Virginia Code of State Rules are suspended until further notice, provided that workers' compensation insurers and other regulated entity shall continue to adjust workers' compensation claims as expeditiously as possible during the insurance emergency and shall utilize all possible methods of adjusting claims remotely, such as telephone, email, facsimile, and mobile applications, all the while striving to meet normal time standards for the adjustment and resolution of claims whenever possible. Workers' compensation insurers and other regulated entities shall prioritize claims adjustment and resolution strategies during this insurance emergency to ensure that high-priority claims are addressed before lower priority claims.

Commissioner Dodrill ordered that workers' compensation insurers and other regulated entities shall not terminate or suspend a claimant's temporary total disability benefits for failure to undergo examinations or needed treatment during this insurance emergency. The Commissioner recognizes many medical or healthcare providers have closed offices, deferred or suspended all non-emergent procedures and treatment during the state of emergency, and that claimants may have difficulty in continuing ongoing care or treatment or obtaining an examination, or may be quarantined or staying in their homes.

Importantly, Commissioner Dodrill ordered workers' compensation insurers and other regulated entities to review Executive Order 7-20 issued by Governor Jim Justice on March 19, 2020, and evaluate their telehealth and telemedicine programs to ensure utilization to the fullest extent possible. The use of telehealth or telemedicine can potentially reduce barriers for treatment as virtual office visits have been identified as a way of safely treating certain patients were claimant's while containing or limiting the spread of infection in hospitals, clinics and medical offices.

On March 24, 2020, Commissioner Dodrill entered Emergency Order 20-EO-04 allowing Emergency Insurance Adjusters to be utilized to adjust claims. Commissioner Dodrill ordered that any insurance company licensed to do business in West Virginia may submit to the Commissioner an application requesting appointment and authorization of one or more emergency insurance adjusters for the purpose of adjusting claims in West Virginia during the pendency of the current COVID-19 insurance emergency. An emergency insurance adjuster license is valid only for so long as the Commissioner specifies, but not to exceed a period of 120 days unless extended for a period of an additional 90 days. An emergency insurance adjuster license is valid only for the COVID-19 insurance emergency. During the time an individual is licensed as an emergency insurance adjuster, he or she has the same power, authority and responsibility as other licensed insurance adjusters in the state. An emergency insurance adjuster licensing application can be found on the Commissioner’s website at www.wvinsurance.gov/Divisions/Licensing. The completed application can be submitted via email toOICAgentLicensing@wv.gov. A link to the application can also be found under the red “COVID-19” tab on the Commissioner’s website. Due to remote working restrictions, the Commissioner will not accept applications via facsimile or U.S. Mail at this time. 

H Dill Battle III
Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East (ZIP 25301)
Post Office Box 273
Charleston, WV 25321-0273
O 304.340.3823
M 304.206.1986
F 304.340.3801
HDBattle@spilmanlaw.com

UPDATE: The Families First Coronavirus Response Act for Employers

Nathan C. Levy - GEORGIA

Levy, Sibley, Foreman & Speir, LLC 

(866) 995-8663

www.lsfslaw.com 

Alaska Statute 23.30.395(24) includes in its definition of an injury, “an occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury.” It is well established that a virus such as COVID-19, or Coronavirus, is an illness that if contracted in the workplace, would entitle the affected worker to workers’ compensation benefits that may arise from the illness.

The Alaska Supreme Court, in *Delaney v. Alaska Airlines, *held that in order to succeed in a claim for an “occupational disease” or illness, an employee must show that: 1) the disease was caused by the conditions of their employment; and 2) as a result of the conditions of the employment, the risk of contracting the disease is greater than that which generally prevails in employment and living conditions. In a claim for Coronavirus, the Board would evaluate this two-prong test at the first step of the compensability analysis. Both elements must be satisfied to create the “preliminary link” between employment and the claimed workplace disease. The Alaska Supreme Court described the rationale for requiring a “preliminary link” before finding a worker is entitled to workers’ compensation benefits as, “… the idea is to rule out cases in which claimant can show neither that the injury occurred in the course of employment nor that it arose out of it, as where he contracted the disease but has no evidence to show where he got it. In claims that are ‘based upon highly technical medical considerations,’ medical evidence will likely be necessary for the employee to meet their burden of showing a ‘preliminary link.’”

In reviewing claims for Coronavirus, the Board would likely find that the disease is a “highly technical medical consideration” and require some medical evidence that the worker has contracted the virus. Once medical evidence establishes that a person has the virus, they will also need to show that they contracted it through the conditions of their employment. The Alaska Supreme Court has held that this requirement is intended to bar claims where an employee “has no evidence” that they contracted an illness out of the course of their employment. Employees seeking benefits for Coronavirus would likely need to prevail on one of the two theories of compensability for occupational disease. If the employee can show evidence of direct contact with a person positive for Coronavirus in the workplace, the presumption of compensability will have attached. Or, alternatively, if the employee can show that the condition of their employment exposed them to a greater risk of contracting the disease than the general public, there is also a good chance that the Board would find a preliminary link between the employment and the disability or need for treatment, and the employer and its carrier may be liable.

If the employee can establish the “preliminary link,” the employer must rebut the presumption, or pay benefits on the claim. In *Huit v. Ashwater Burns,* the Alaska Supreme Court held that rebutting the presumption requires the employer to either eliminate the possibility that the illness was related to the employment, or show that some other source outside of the employment caused the disease. It will be difficult to rebut the presumption in cases where the claimant can show direct contact with an infected person in the workplace. In such instances, benefits will likely need to be paid for any disability or need for treatment related to the Coronavirus. Employers and their insurers should have more factual grounds to dispute a claimant’s assertion that their workplace has placed them at a greater risk for contracting the virus than the general population. Factors to consider are how many people might the claimant come in close contact with on an average day, were there safety precautions such as hand sanitizing stations or masks, or other measures in the workplace to reduce the likelihood of spreading the disease was acquired through work exposure.

We recommend that Alaska employers and their insurers and adjusters be prepared for an influx of claims related to the Coronavirus. Actions are being taken at the local and State level to minimize the spread of the virus, and as a result of keeping people away from workplaces that have high risks for spreading the disease, it could result in a significant decrease in the potential burden on employers and their workers’ compensation carriers during this pandemic. Where possible, employers are encouraged to take steps in reducing the possibility of spreading the disease in the workplace. By doing so, it may improve chances of convincing the Board that the person’s employment did not place the claimant at greater risk of getting the disease than the general population.

Claims should be closely evaluated when they come in for whether they satisfy the first step of the presumption analysis and create the preliminary link between their employment and their illness. It will be during that first step of the presumption analysis that employers will have the best chance to successfully deny a claim, because once the presumption has been attached, it may be difficult to successfully rebut under the standard articulated by the Court in *Huit*. Please feel free to contact us if there is more information we can provide on this issue.

Below are informational links from the Division about how COVID-19 is effecting Board and Appeals Commission procedures and from the State of Alaska regarding its mandates which may affect medical care in workers’ compensation claims. Please note that these bulletins and mandates can change.

http://labor.state.ak.us/wc/bulletins/20-02.pdf

http://labor.state.ak.us/wc/bulletins/20-02.pdfhttp://labor.state.ak.us/wc/bulletins/20-03.pdf

http://labor.state.ak.us/WCcomm/documents/AWCAC_Procedureal_Order_No1.pdf

http://dhss.alaska.gov/News/Documents/press/2020/SOA_03192020_HealthMandate005_ElectiveMedProcedures.pdf 

We wish you all good health!

Meshke Paddock & Budzinski, P.C.

Written by: Bruce Hamilton and Tracey Jones

Brief overview of the legal analysis of COVID-19 workers’ compensation exposure in North Carolina.

COVID-19 cases must be handled and analyzed on a case-by-case basis; however, based upon the current statute and case law, it is unlikely that suspected COVID-19 or actual COVID-19 cases would be considered compensable under either an injury by accident or occupational disease claim theory in North Carolina. With respect to occupational disease claims, North Carolina is an increased risk state, not a positional risk state. Even if the employee can show some increased risk, they will need to prove that any disease they contract actually came from their employment as opposed to some other type of exposure outside of their employment. Because the legal analysis behind the compensability of a COVID-19 diagnosis is very fact specific, please contact one of our attorneys to discuss your scenario in more detail.

How an increase in teleworking may affect workers’ compensation claims in North Carolina.

COVID-19 has reached North Carolina and is impacting our way of living and working every day. Many employers are relying on teleworking to keep their businesses up and running. With this change in location of work space, we are likely to see an increase in home-related injuries. Employees are allowed to work from home; however, they do not have 24/7 workers’ compensation coverage the entire time they are at home. While many will be teleworking, they will also be engaging in personal activities during this unusual period of time. It is going to be very difficult to contradict the employee’s account of when an injury occurred due to the very nature of teleworking.

How do we know the claimant was actually engaging in work at the time of an injury?

Any injuries at home will have to arise out of and in the course and scope of the employment. There is little case law in North Carolina dealing with injuries suffered by employees working remotely; however, these claims are no different from other claims in the level of proof required to establish a compensable injury by accident. Nonetheless, these claims will pose unique challenges for defendants when investigating the facts surrounding these alleged injuries. Defendants will need to thoroughly investigate the allegations and utilize recorded statements as quickly as possible before the employee retains representation. Questions should focus on the injured employee’s activities at the time of the injury, as well as the normal routine they have developed while working remotely.

An employee who is teleworking will still need to prove:

1. An accident. Was there an interruption of the normal work routine?
   • Were they doing their normal job duties? Were they doing the job in their normal way and, other than the injury, did anything unusual occur?
   • Additional questions will need to be asked about the other activities they engage in while working remotely. What was their normal schedule and what other personal obligations did they have while working remotely? Who else was in the remote location and where were they located in the remote location?
2. Arising out of the employment. The accident has to have some causal connection to the employment. One area of inquiry is whether the employee has a dedicated work space at their remote location. If the injury does not occur in the work space, then additional questions need to be asked regarding the specific activity being conducted at the time of the injury.
3. In the course of employment. This prong looks at time, place and circumstance of the injury. By having employees work remotely, employers have shifted the location of the employee’s work space, most likely to their home. We do not believe they would be considered traveling employees, which provides a much greater scope of coverage for course of employment issues. Nonetheless, other questions arise such as: When does employment begin? Normally, an employee is deemed to be in the course of their employment as soon as they are on the employer’s premises. This is the “premises exception” to the coming and going rule. When does a remote employee’s day start and end for workers’ compensation purposes? Employers might want to consider establishing general work hours for employees who are teleworking. These are extraordinary times, so some flexibility is required, but general parameters on work hours is appropriate.

Practice Tips:

• Employers should set specific work hours for employees who are teleworking and have a system for checking in and out.
• Adjusters should conduct recorded statements of any reported injuries at home as early as possible and get as much information as possible, including additional information regarding the employee’s usual activities and schedule during this unusual period of time when they are teleworking.
  • How did they set up their home office, what was their schedule on a typical day, did they engage in any other personal activities while working from home etc.?
• Carriers should review claims carefully and liberally use the Form 63 procedure for payment of medical bills without prejudice or use the Form 61 procedure when information is insufficient to accept or deny the claim.

During this time of uncertainty, our team is here for you. Please contact one of our workers’ compensation attorneys if you have any questions or concerns.

New Jersey lawyer and nationally recognized workers’ compensation guru, John Geaney recently posted a COVID-19 Q&A on his award winning Blog site.  The questions are certainly relevant nationally and so the following are Alabama specific answers.

Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?

Answer: No, but the employee will likely be entitled to unemployment benefits. 

Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus?  Must the employer pay workers’ compensation benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 3: What if the government shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no work available from home. Does the employer owe workers’ compensation benefits?

Answer:  No, but the employee will likely be entitled to unemployment benefits. 

Question 4: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 5: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 6: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Chris is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Chris just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.  Further, in Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”  Therefore, for COVID-19 to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.  It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

Question 7: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus.  So far all the tests have been negative.  The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized.  She files for workers’ compensation benefits for her lost time and medical bills.  Is she entitled to workers’ compensation benefits?

Answer:   Probably not.  See answer to #6.

Question 8: Given that tens of thousands of employees are now working from home in Alabama due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?

Answer:  The Alabama Workers’ Compensation Act does not specifically address telecommuter/home based workers and there are not currently any high court opinions in Alabama addressing the issue.  Courts in other states have distinguished telecommuters from individuals who may just happen to be performing work at home on a given day.  In those states, once it was established that the employee and employer entered into a telecommuting arrangement, the hazards of the home were considered to be work place hazards.  Written telecommuting agreements that dictate hours of employment, areas of the house that are considered work space, and rules concerning prohibited activity are recommended to help employers and employees know what is and is not considered work activity. 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The Alabama Department of Labor Workers’ Compensation Division seminars scheduled for April 9^th in Orange Beach and April 23^rd in Birmingham are cancelled.  Per Director, Steve Garrett, they are actively working on securing alternate dates.  Stay tuned.  We will post the new dates as soon as they are available.

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.

On March 18, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order setting forth temporary rules regarding workers’ compensation settlements.  Per the Order, the following rules will be in effect through April 16, 2020:

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.
2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in a court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

The above referenced Order was issued in the wake of a March 13, 2020 Order that suspended all in-person court proceedings through April 16, 2020.  

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.