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.
On March 18, 2020, the Director of the Alabama Department of Labor (ADOL) Workers’ Compensation Division, Steve Garrett, released a Memorandum concerning the Ombudsman Program. ADOL Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties. Per the Memorandum, the ADOL is constantly monitoring the ongoing developments of COVID-19 and the effect it’s having on the ADOL and the services it provides. Although the Ombudsman Program is continuing to operate, the ADOL is making the following modifications to the procedures normally in place.
To reschedule mediation dates or to alter plans for scheduled mediations during this time, it is asked that you contact your ombudsman. For a list of ombudsman with contact information and the areas of the state that they cover, please e-mail me at mfish@fishnelson.com and I will be happy to send you one.
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.
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 the coronavirus 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 generaland 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.
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.
Alabama Court Appearances Temporarily Suspended
On March 13, 2020, the Alabama Supreme Court issued an administrative order which suspended all court appearances for 30 days. On March 15, 2020, the Court issued a second order which clarified that the first order only applied to in-person court proceedings.
Alabama Department of Labor Ombudsman Availability
The Alabama Workers’ Compensation Reform Act of 1992 established an Ombudsman Program. Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties. Currently, it has been left up to the individual ombudsmen whether or not they wish to travel or attend in person mediations or benefit review conferences.
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Legal Update by Attorneys Nick Cooling & Alison Stewart
Iowa Workers’ Compensation Commissioner Responds to Coronavirus
On Friday, March 13, 2020, Iowa Workers’ Compensation Commissioner Cortese filed anOrder responding to Coronavirus concerns. In-person hearings will be suspended beginning March 18, 2020 and continuing through June 16, 2020. During this time period scheduled hearings will be held using CourtCall, the agency’s video hearing technology. Fees for the service will be covered by this agency.
For any compensability questions relating to contraction of Coronavirus by Iowa employees, please contact any of the Peddicord Workers’ Compensation Attorneys to discuss further. Analyzing these situations on a case-by-case basis is appropriate.
Shoulder Definition Clarified
The agency filed two arbitration decisions clarifying how the agency defines the shoulder. Recall that the shoulder was added to the schedule in July 2017 and has been compensated based upon 400 weeks since that time. A scheduled member injury has been limited to the impairment rating of an expert.
The decisions are Chavez v. MS Technology, LLC,File No. 5066270 (Feb. 5, 2020) and Deng v. Farmland Foods, Inc.,File No. 5061883 (Feb. 28, 2020). We expect the decisions to be appealed. In light of these decisions, however, the current agency law is that where the injury to the shoulder extends into the proximal portion of the shoulder joint (the portion nearer to the center of the body), it is a body as a whole injury and an industrial disability analysis may be appropriate. The agency cited pre-legislative change cases where the shoulder was defined as the ball and socket between the arm (humerus) and the trunk (scapula), which is medically called the glenohumeral joint. The agency then reasoned that the legislature was aware of this definition when they drafted the 2017 amendment and found that injuries extending into the body side of the glenohumeral joint are body as a whole injuries. Consider the below diagram for additional context relating to the anatomy of the shoulder:
Importantly, any time the injury extends into the proximal portion of the shoulder joint, including where the surgery performed involves a distal clavicle resection (which is where the surgeon shaves the tip of the clavicle), we can expect the agency to find a body as a whole injury since the clavicle is proximal to the glenohumeral joint. The cases cited in theChavez decision in arriving at the shoulder definition now being applied by the agency specifically identify the distal clavicle as part of the body as a whole. The agency will likely then apply an industrial disability analysis where the Claimant has not returned to work, with the same hours and earnings. If there is a return to work, we would expect the agency to apply a body as a whole rating to 500 weeks like they would for a typical body as a whole injury with a return to work.
Additionally, in the Deng case, penalty benefits were awarded where Defendants did not pay permanency following an IME report from Claimant’s expert containing a permanency rating, despite the authorized treating physician not yet placing the claimant at MMI or assigning impairment. The deputy found that since the authorized treater provided permanent restrictions after a valid FCE, this was the equivalent to MMI, even though the treating doctor didn’t come out and say that in his report. Penalty was awarded from the date that permanent restrictions were provided, not the MMI date in Claimant’s IME report.
These decisions may be appealed, but we will not know the outcome of any appeal(s) for more than a year.
Iowa Supreme Court Reduces Punitive Damages Award in Bad Faith Case
Thornton v. American Interstate Insurance Company, arising out of a compensable work injury where the carrier delayed benefits owed, the Iowa Supreme Court of Iowa recently took up the issue of the level of conduct necessary to justify an award of punitive damages in a bad faith case. Ultimately the punitive damages were reduced, however, the decision did not provide a definitive ratio between punitive and compensatory damages. However, it is instructive as to the level of conduct that will justify certain awards for punitive damages.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.
This article discusses the likelihood that employee exposure to COVID-19 at work may result in a recognized work-related injury/illness.
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Dear Clients:
We are continuing to monitor the Corona Virus (COVID-19) outbreak, and we want to take a moment to reach out and let you know that we are handling this developing situation at ConnorsO’Dell, as responsibly as possible, noting that our main priority is to insure the health and safety of our staff and our clients.
Safety being our top priority, we are implementing the following:
· We are taking every precaution possible, to include conducting extra cleanings of our offices, and frequently touched surfaces.
· We have implemented screening measures to insure the safety of our staff and clients, and we have postponed most in-person appointments, and, to the extent available, are engaging in remote consultations and appointments.
· We have instructed our staff that if they are not feeling well or are still recovering from illness, we have asked them to self-isolate, for the protection of all.
· As of 3/16/20, we will also be working remotely for safety.
In reliance upon CDC recommendations, we suggest the following:
· Wash your hands often with soap and water for at least 20 seconds.
· Always cover your mouth when coughing and sneezing.
· Maintain social distancing of 3 feet or more between yourself and other persons.
· Avoid touching your eyes, nose and mouth with unwashed hands.
· Clean and disinfect frequently used surfaces.
· Get medical attention early if you have a fever, cough, or difficulty breathing.
· Mild symptoms should seek medical care and stay home until recovered, if possible.
Please reference the CDC website for the latest updates about the Corona Virus (COVID-19).
We remain vigilant in representing the interests of our clients in this challenging situation facing our communities.
Justin Wild, a licensed funeral director, was diagnosed in 2015 with cancer and was prescribed marijuana under the New Jersey Compassionate Use Medical Marijuana Act.
In May 2016 Wild was working a funeral when his vehicle was struck by another vehicle that ran a stop sign. Wild advised a treating doctor at the hospital that he had a license to possess medical marijuana. The doctor concluded it was clear that Wild was not under the influence of marijuana and therefore he would not need to be tested to return to work.
Wild returned to work, but several days later Wild was told that the company was unable to “handle” his marijuana use and that he was “being terminated because they found drugs in your system.” The company wrote Wild a letter stating that he had been terminated not because of his drug use but because he failed to disclose his use of medication that might adversely affect his ability to perform job duties. Plaintiff’s mother later heard a rumor going around that Wild was fired because he was “a drug addict.”
Wild sued his employer, Carriage Funeral Holdings, Inc., alleging that his employer discriminated against him based on disability due to his use of medical marijuana off site. His employer tried to stop the law suit in its tracks by moving to dismiss the case for failure to state a claim upon which relief can be granted. The employer argued that the Compassionate Use Act does not contain employment –related protections, relying on language in the Compassionate Use Act that states, “nothing in this Act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.”
Wild countered that this language does not mean that the LAD may not impose its own obligations on the employer. Wild said he was not seeking an accommodation to use marijuana in the workplace, only an accommodation that would allow his continued use of medical marijuana off-site and off work hours.
Wild lost at trial but obtained a reversal in the Appellate Division. On March 10, 2020, the New Jersey Supreme Court affirmed the decision of the Appellate Division, allowing Wild to proceed with his case. The Court held that there is no conflict between the Law Against Discrimination and the Compassionate Use Act. It said, “The Compassionate Use Act does have an impact on plaintiff’s existing employment rights. In a case such as this, in which plaintiff alleges that the Compassionate Use Act authorized his use of medical marijuana outside the workplace, the Act’s provisions may be harmonized with the law governing LAD disability discrimination claims.”
This is the first case in which the New Jersey Supreme Court has addressed the right of an individual who uses medical marijuana to pursue employment litigation for termination of employment due to use of medication outside the workplace. While this case did not arise out of workers’ compensation, the case is instructive to practitioners because there are many injured workers using medical marijuana in New Jersey. This is one of the first decisions on the state’s Compassionate Use Medical Marijuana Act.
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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.
The concept of legal causation is fundamental to master in handling claims. If there is no legal causation, the claim should be dismissed. The claimant must prove an accident which arises from the employment. There must be a work connection. When a case poses a serious issue of legal causation, the most common mistake is to send the injured worker immediately to the doctor for an opinion on causation.
Let me explain this further. Let’s say your case involves an employee whose allegation is that she got up from a chair and felt sudden low back pain, or was walking down the corridor to speak with her supervisor when she felt knee pain, or she put on her coat to leave for home and felt sharp pain in her shoulder. These are examples of normal and routine activities that happen at work (and everywhere else in life) that manage to find their way into workers’ compensation files. What is it that all these scenarios have in common? The answer is the absence of legal causation.
The natural impulse of an adjuster or defense lawyer is to get a medical opinion when a claim is filed. That is how we are trained. That impulse must be resisted when there is no legal causation. Why? Because the doctor is going to advise you in the first instance that rising from the chair caused low back pain, in the second instance that walking down the corridor led to pain from some defect in the knee, and in the third instance that putting on the coat may have caused a tear in a weak shoulder. That is medical causation, not legal causation. Opposing counsel will argue: “Why hasn’t this case been accepted? The doctor says the condition is causally related, right?” A deep hole has been dug, and the defense dug it.
After a certain amount of backtracking on why the doctor’s opinion really doesn’t matter, the defense must eventually argue that there is no legal causation. Secondarily, the defense must concede that the medical opinion was unnecessary as it clearly placed the defense in an awkward position in court. In essence, the defense must contend that there was no accident that arose from the employment. Not everything that happens at work arises from work.
Sometimes it helps to look at issues like this from a different vantage point. Imagine sitting comfortably in your chair on a Sunday afternoon watching a football game. At a commercial break, you get up to get a snack and suddenly feel sharp pain in your back as you come to a standing position. You begin a course of treatment for a severe sprain. Would you argue that home caused your back injury? Of course not. People would laugh at such a suggestion because this could have happened anywhere, arising from a chair in church, at a movie or on a bus. It just so happened that it occurred at home during the Sunday ritual of watching a football game, but home was not the proximate cause of any injury. In workers’ compensation there must be a true work connection between the activity performed and the injury experienced. Mere coincidence does not substitute for causation. In contrast, a chair that breaks while one sits in it certainly would meet the test of an accident.
Claims that lack legal causation happen every day in every state and often become the subject of extensive medical, temporary disability and permanency payments. Some routine activity that we all engage in, like bending to tie one’s shoes, causes pain and leads to treatment, but often the activity is not work connected to begin with. A doctor is consulted and gives an opinion on medical causation, and everyone forgets about the legal causation requirement. The claim gains momentum and the costs mount.
Common sense tells us that if an employee turns to look out the window at work or turns to speak with a colleague and feels a spasm in her neck, this is not a workers’ compensation accident. The neck may need treatment nonetheless. Medically speaking, the action of turning one’s neck can occasionally lead to pain but legally speaking, there is no accident arising from work by just turning to look at a person or a thing. So when you encounter a case like this, the best advice is to stop, analyze the facts, and try not to snatch defeat from the jaws of victory, as the old saying goes.
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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.
Infectious diseases such as COVID-19 can be compensable in Minnesota as either a personal injury or occupational disease in certain situations. CWK attorneyWhitney Teel did a deep dive into the issue during the H1N1 outbreak in 2009, and the caselaw is applicable to the current COVID-19 outbreak.
The quick answer is that it is possible for COVID-19 to be a compensable workers’ compensation injury in Minnesota, but as always, the burden of proof is on the Employee. With infectious diseases, such as polio, influenza, tuberculosis, or COVID-19, proving point of contraction is critical. Employers are encouraged to let their workers’ compensation insurer know if an employee tests positive for COVID-19.
To read Whitney's research article on this topic, click the link below:
https://cwk-law.com/wp-content/uploads/2020/03/COVID-19-Research.pdf
