State News : Kentucky

On April 15^th, 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

Jones Howard Law, PLLC (“JHL”) has received inquiries regarding what effect employee layoffs associated with the novel coronavirus pandemic (“pandemic”), nonessential business closures and restrictions, safety-in-place orders and quarantines have on employer workers' compensation exposure. We offer the following analysis.

Prior Injury - RTW - TTD Terminated - Subsequent Layoff

Hypothetical:  At the time of the layoff or business closure due to the pandemic, a previously injured employee was back to work at your place of business. The employee was not at Maximum Medical Improvement (MMI) from the prior injury at the time of the layoff or business closure. Is the employee eligible for TTD benefits?

Answer: Yes, in most instances. 

To be eligible for TTD benefits, the injured employee must: a) not be at MMI, AND b) not have returned to employment.[1] The injured employee's TTD benefits would probably have been terminated upon return to employment. If, however, in the event of a layoff or business closure due to the pandemic, the employee would arguably be eligible for re-initiation of TTD benefits, since upon layoff or business closure the employee was: a) not at MMI, AND b) no longer working -- thus meeting the statutory criteria for TTD eligibility. 

Note 1: These issues and potential exposure require a detailed factual analysis. Each and every claim needs to be evaluated on its own facts and merits. This hypothetical is merely offered as an example of potential TTD exposure in the event of a layoff or business closure. 

Note 2: TTD benefits may be terminated if and when a treating physician or IME physician places the claimant at MMI. 

Governor Beshear's Executive Order - Mandatory TTD Benefits

If an employee is restricted from working by a physician due to COVID-19 exposure and quarantined an employer has potential day one TTD exposure.  As previously summarized in the JHL Kentucky Covid-19 Update, dated April 10, 2020, the Kentucky Governor's Executive Order, dated April 9, 2020, mandates day one payment of TTD benefits for an employee exposed to COVID-19 and quarantined if and when certain criteria are met, including causation.[2] We recommend a thorough review of the Executive Order.

Note 3: The employer is entitled a TTD credit or offset for any concurrent unemployment benefits. 

JHL 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

Please see below a link to Kentucky Governor Beshear's Executive Order, dated April 9, 2020 ("Order"). This Order states:

     1. "An employee removed from work by a physician due to occupational exposure to COVID-19 shall be entitled to temporary total disability payments...during the period of removal even if the employer ultimately denies liability for the claim. In order for the exposure to be "occupational," there must be a causal connection between the conditions under which the work is performed and COVID-19, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment;"

     [Note 1: This would necessitate a note/report from a physician stating the employee was removed from work due to occupational exposure, and addressing the above referenced causal connection between the work activity and COVID-19.]

     [Note 2: The Order mandates that upon receipt of the above referenced physician note/report, TTD benefits are then owed, even "if the employer ultimately denies liability." Numerical paragraph 1. of the Order does not address how or when an employer shall deny liability. Developments as to a subsequent denial will have to be monitored going forward.]

     2.  KRS 324.040(1), which provides no TTD benefits are owed for the first seven (7) days, unless the worker is off for more than two (2) weeks is suspended and TTD shall be paid from the first day the employee is removed from work.

     3. It shall be presumed that removal of certain workers from work by a physician is due to occupational exposure to COVID-19. The Order enumerates employees that shall have a presumption of causation. (See numerical paragraph 3.).

     [Note 3: This section of the Order does not make any reference to an employer that "ultimately denies liability," but that appears to be addressed in numerical paragraph 5, discussed below.]

     [Note 4: This section of the Order that presumes causation includes military, National Guard and postal service workers. To the extent that servicemen, servicewomen and postal workers are Federal employees, he or she should not be eligible for Kentucky workers' compensation benefits.] 

4. This Order applies to all carriers and self-insureds.

5.  "Payment by the employer or its payment obligor pursuant to this Order does not waive the employer's right to contest its liability for the claim or other benefits to be provided."

     [Note 5: This section of the Order does not specify how or when an employer shall contest liability. This necessitates monitoring of future developments.]

Jones Howard Law, PLLC will continue to monitor all COVID-19 developments as relate to workers' compensation matters -- and keep our clients well informed. 

Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience. We appreciate the opportunity to be of service in this regard.

https://governor.ky.gov/attachments/20200409_Executive-Order_2020-277_Workers-Compensation.pdf

                                                                        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

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]