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.
The North Carolina Industrial Commission has adopted an Emergency Rule that in turn allows the Industrial Commission to implement Emergency Orders and Directives of the Chief Justice of the North Carolina Supreme Court. In short, the Industrial Commission wants its operating structure to be in sync with, and operate consistently with, the civil system when it comes to holding hearings, mediations and other procedural directives from the Chief Justice. As of January 14, 2021, and consistent with the January 14, 2021 Order of the Chief Justice of the Supreme Court of North Carolina, all Industrial Commission mediations are to be conducted remotely, unless all parties and persons required to attend the mediation, including the mediator, agree to conduct the mediation in-person, or unless the Industrial Commission orders that the mediation be conducted in-person. Additionally, all Deputy Commissioner Hearings shall be conducted remotely via WebEx video conference, unless the Deputy Commissioner grants an in-person hearing upon a showing of good cause as to why an in-person hearing should be allowed. Full Commission hearings shall continue to be conducted via Microsoft Teams video conference.
In November, 2020, Deputy Commissioner Tammy Nance was designated as the Chief Deputy Commissioner by Chair Phillip Baddour. Chief Deputy Commissioner Nance previously served as a Deputy Commissioner from 1987 to 1995. She was in private practice for several years representing both employers and employees in workers’ compensation matters and in 2011, returned to the Commission and served on the Full Commission until 2018. In 2019, Ms. Nance began serving as a Deputy Commissioner assigned to head up the Claims Administration Section.
Additionally, former representative Larry D. Hall, who most recently was serving as the Secretary of the North Carolina Department of Military and Veterans Affairs, was recently appointed as a Deputy Commissioner. Deputy Commissioner Hall represented Durham County in the North Carolina House of Representatives for 10 years and served as the House Minority Leader during his final four years.
Chair Philip Baddour provided an update at the North Carolina educational conference in October 2020. As of August 31, 2020, 1,508 Form 19’s had been filed listing COVID-19 and 119 Form 18’s have been filed listing COVID-19. Of the COVID-19 cases where a Form 60, 61 or 63 had been filed, 57% had been denied on a Form 61, 19% had been accepted on a Form 60, 18% had been paid without prejudice on a Form 63, section 1, and 6% had been paid without prejudice on a Form 63, section 2.
In addition, for the fiscal year 2019-2020, 27 claims had been filed for extended benefits under G. S. Section 97-29 (c). Seven of the claims had been mediated and three Deputy Commissioner Hearings had been held, but, as of the October conference, there had not yet been any decisions rendered.
Finally, seven Industrial Commission Rules were revised, and one new Industrial Commission Rule was added, all effective December 1, 2020.
Rules Effective 12-1-20.pdf (nc.gov).
The Rules affected were 11 NCAC 23A .0104, .0408, .0409, .0501, .0903, 11 NCAC 23E .0104, and 11NCAC 23L .0103 and new Rule 11NCAC 23B .0106.
Related Post: Overview of December 1, 2020 NCIC Rule Changes by Attorney Lindsay Underwood
Amendments to Rules 11 NCAC 23A .0108, .0109, .0302, 11 NCAC 23B .0104, .0105, 11 NCAC 23L .0101, .0102, .0103, and .0105 will also become effective March 1, 2021.
Rules Effective 3-1-21.pdf (nc.gov)
Bruce Hamilton is a Partner in Teague Campbell’s Raleigh office. He is the legal advisor for the NCASI and, for the past 30 years, his practice has focused exclusively on workers’ compensation defense.
OAKLAND – Hanna, Brophy, MacLean, McAleer & Jensen is proud to announce the promotion ofGreg Stanfield, formerly the Managing Partner of the Oakland office to Firm Managing Partner. Stanfield succeeds Mike White who retired at end of last year as the 4th Managing Partner in the firm’s 78 year history.
“I could not be more thrilled when Greg indicated a willingness to serve as our Firm Managing Partner last year when Mike announced his retirement. His leadership skills, professionalism and compassion for our employees will provide a seamless transition,” said Elizabeth Trimm, Sacramento office Managing Partner. “The future of Hanna Brophy is in good hands,” said Trimm
Stanfield has been practicing law for more than 25 years and has been a part of the Hanna Brophy team since 1998. Under his leadership, the firm’s headquarters in Oakland became one of the most influential and successful in the partnership.
Stanfield has built his practice on all aspects of workers’ compensation defense including public safety issues, 132a defense, serious & willful petitions, and CalPERS litigation. Throughout the course of his career, he has also successfully tried to verdict both bench and jury trials. Stanfiled has developed a special interest in representing governmental entities (with an emphasis on public safety) and self-insured employers.
Todd Ewing, Los Angeles office Managing Partner said, “I have worked directly with Greg in multiple leadership positions including the management committee and other various firm committees. I am looking forward to Greg and the many leadership and people skills he brings to the leadership team.”
Aside from his work at Hanna Brophy, Stanfield is a proud soccer and baseball dad who volunteers his time as a coach for his children’s teams. He’s also an accomplished tennis player with a 4.0 rating and a spot on the USTA National Tennis Team.
Commissioner Dodrill's latest Bulletin is a significant change to common practice for carriers, claims adjusters, and attorneys. West Virginia Insurance Bulletin No. 21-03 interprets W. Va. Code §23-4-8(a) and the physical examination of claimants. It has long been common practice to refer to the physical examinations allowed by W. Va. Code §23-4-8(a) as "independent medical examinations" or "IMEs" despite the fact the statute does not use that term. The Commissioner believes the use of the term "independent medical examination" may lead to confusion or misunderstanding by claimants, especiallypro se claimants. The Commissioner notes the term "independent medical examination" generally refers to an examination performed by a medical examiner who has not previously been involved in claimant's care. The Commissioner notes such an independent medical examination is an examination that is independent of the traditional doctor/patient relationship. In questioning the common use of the term "IME" when the examiner is often hired by the carrier, employer, or employer's attorney to perform the examination, the Commissioner explains: "This does not mean the examination is independent in the traditional or colloquial sense, as it is oftentimes requested and paid for by the party investigating the claim or even opposing the requested benefits."
Commissioner Dodrill reminds us medical examiners have their own professional code of ethics to which they must adhere, and examinations should always be objective and unbiased. Importantly, examiners must follow the statutory guidelines, guidelines set forth in W. Va. Code of State Rules §85-20-1, et seq., and any other applicable guidelines. The Commissioner notes the historical registration and list of approved IME physicians formerly kept by the Workers' Compensation Commission is no longer available. However, examiners are required to verify and provide proof of their American Board of Medical Specialties ("ABMS") or American Osteopathic Association ("AOA") certification to whomever services are provides. See W. Va. Code of State Rules §85-20-5.9.a.
The Commissioner stated private carriers, self-insured employers and their claims administrators should use caution to ensure the use of the term "independent medical examinations" or "IMEs" is not misleading or confusing. More precise language recommended in the bulletin is "insurer's physical examination of claimant", "private carrier's physical examination of claimant", "claimant's physical examination", or "employer's physical examination of claimant", as opposed to the more generic and potentially confusing term "independent medical examination" or "IME".
W. Va. Code §23-4-8(a) provides generally that a private carrier, self-insured employer, or in the case of a claim made to a state administered workers' compensation fund, the Insurance Commissioner may, after due notice and whenever in its opinion it is necessary, order a claimant other than a claimant for occupational pneumoconiosis to appear for a physical examination before a medical examiner of its own choosing. W. Va. Code §23-4-8(a) further provides a claimant and/or an employer may also select a physician of their own choosing to, at their own expense, participate in the examination. With a limited exception in the disclosure of certain psychiatric or psychological reports, the claimant and employer shall be furnished with a copy of the report of examination made by the medical examiner retained by the private carrier, self-insured employer or the Commissioner, if applicable. A physician selected by a claimant or an employer has the right to submit a separate report.
One final sidebar is the Commissioner's statement revisions to Rule 20 are under consideration to clean up the references to IMEs in the treatment guidelines. We will monitor for action on this front.
Dill Battle
304-340-3823
dbattle@spilmanlaw.com
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, E.
Charleston, WV 25301
Employers need to be aware of an Assembly bill that would turn the workers’ compensation statute into an employment protection law. The Assembly Labor Committee recently passed A-2617 sponsored by Assembly members Murphy, Benson, and Reynolds-Jackson. The bill will require an employer with at least 50 employees to provide a hiring preference to an injured employee who has reached maximal medical improvement, is unable to return to his or her former position, but can perform the essential duties of an existing, unfilled position.
This bill is problematic for employers for many reasons: first, it attempts to turn a statutory benefits law – the New Jersey Workers’ Compensation Act — into an employment protection statute. Second, there are already labor laws in New Jersey that protect employees, such as the New Jersey Law Against Discrimination and the ADA. Third, there is no explanation of the circumstances in which employers can reject the preference or prove it should not apply. In fact, there is no mention that the employer has any right whatsoever not to provide a job to someone who fits the criteria noted above.
Suppose the injured employee is less qualified than another applicant for the open position. Does the injured worker’s status as one who has reached maximal medical improvement trump the more qualified applicant’s credentials? Suppose the outside applicant also has a disability and is more qualified for the job? Further, in what court would the law be enforced? New Jersey workers’ compensation judges do not have the power to enforce employment laws. Clearly, claimants cannot prosecute failure to rehire claims in workers’ compensation court.
The Workers’ Compensation Act provides for medical, temporary and permanent partial and total disability benefits. That is all the statute has ever been intended to do. If the law is only enforceable in civil court, why is this law not being considered as part of the NJLAD? One overriding question employers will have is what does this proposed bill do that the NJLAD and ADA do not already do? This proposed bill also fails to mention anything at all about requests for reasonable accommodation, the need for an interactive dialogue or defenses of the employer such as undue hardship. In that sense, this proposed bill seems to override existing disability discrimination laws.
Upon committee approval of the legislation, Murphy, Benson and Reynolds-Jackson issued the following joint statement:
“Work related injuries can be traumatic and devastating. No injured employee should be left without options for work. This bill will ensure that those who are unable to return to their previous position will still be able to put their efforts towards helping in a different role for their employers.
“Those who have been injured in their place of work should not be cast aside with unemployment if they cannot resume their previous position. These people are still valuable employees who can contribute to their employers and company.
“The transition back to work after suffering an injury can be difficult. It is important for companies to offer ways for these employees to continue to contribute in the workplace, provide for their families, and resume successful careers.”
These sentiments are worthy of consideration, yet one must ask the committee members why would an employee who has a work-related spinal condition and reaches maximal medical improvement be entitled to greater protection than an employee who has the same spinal condition from a congenital cause and reaches maximum medical improvement? Why should employment rights be dependent on workers’ compensation status? The answer is they shouldn’t be and that the bill makes no sense. Anyone who has a disability, be it work or non-work related, has equal rights under existing state and federal laws to reasonable accommodation. The committee statements stunningly suggest that that New Jersey Law Against Discrimination — one of the most progressive in the nation — has suddenly become outdated and inadequate. This will come as news to employers and employment lawyers.
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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.
West Virginia Insurance Commissioner Bulletin No. 21-01 Provides Guidance for Filing and Handling Workers' Compensation Claims for COVID-19
On January 19, 2021, the West Virginia Insurance Commissioner issued Bulletin No. 21-01 providing guidance for employers, workers’ compensation insurers, and self-insured employers regarding COVID-19 workers’ compensation claims. The Commissioner reiterated that employees covered by their employers’ workers’ compensation insurance policies have the right to file claims for workers’ compensation benefits if the employees sustain an occupational injury. The Commissioner noted that the term “occupational injury” includes an occupational disease, alluding that COVID-19 will be considered an occupational disease rather than an occupational injury.
The Commissioner specified that employers may not advise employees that they cannot file workers’ compensation claims for COVID-19, nor may employers threaten retaliation for such claims. Employers must post notices in a conspicuous place on their premises identifying their workers’ compensation insurer, including the name, business address, telephone number, and contact person to whom questions about making a claim should be directed.
The Commissioner reminded employees to give written notice of the injury immediately or as soon thereafter as practicable. Generally, employees have six (6) months to from the date of injury or death to file a workers' compensation claim for an occupational injury. The Commissioner recommended employees to file their workers' compensation claim as soon as possible after reporting the injury to the employer.
Employers must report employee claims of occupational disease to their workers’ compensation insurance carriers within five (5) days after receiving notice that an employee desires to file a workers’ compensation claim or within five (5) days of receipt of the employee’s report of injury. The Commissioner forbids employers to conduct screenings or causation investigations of COVID-19 claims prior to reporting the claims to their workers’ compensation carriers (or prior to processing the claim if the employers are self-insured).
When an employee files a workers’ compensation claim for COVID-19, the insurer or self-insured employer must properly investigate the claim and issue a timely written compensability decision. Only after an insurer or self-insured employer receives a properly filed workers’ compensation claim must the insurer or self-insured employer use due diligence to investigate the employee’s claim to determine compensability. These investigations include a determination of the cause and place of injury (COVID-19 exposure) which is germane to whether the injury occurred in the course of and as a result of the employment. Workers’ compensation claims for COVID-19 should not be summarily refused, denied or rejected outright without a proper investigation.
Employers and healthcare providers must cooperate with workers’ compensation investigations of COVID-19 claims by timely providing medical records and other necessary information to workers’ compensation carriers or self-insured employers.
Finally, the Commissioner reminded employers that they may not terminate an employee who is off work for a compensable injury and is receiving, or is eligible to receive, temporary total disability benefits unless the employee has committed a separate dischargeable offense. Additionally, employers cannot cancel or decrease an injured employee’s medical insurance benefits while the employee is receiving workers’ compensation benefits for a temporary disability.
Article by Charity Lawrence and Dill Battle
If you have questions or need more information, please call or e-mail Charity at 304.720.4056 or clawrence@spilmanlaw.com or Dill Battle at 304.340.3823 or dbattle@spilmanlaw.com.
Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3800 - office
304.340.3801 - fax
www.spilmanlaw.com
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We are pleased to announce that Cousineau, Waldhauser & Kieselbach, P.A. (MN) has once again been ranked as a Tier One law firm by Best Law Firms of U.S. News and World Report. Best Lawyers and Best Law Firms collaborate with U.S. News and World Report to evaluate attorneys and law firms throughout the world. The attorneys and law firms are selected for inclusion by peers for their responsiveness, integrity, and expertise. We are honored by this distinction.
On November 20, 2017, claimant was diagnosed with mesothelioma related to asbestos exposure; he passed on February 24, 2018, and his estate filed a Petition to Determine Compensation Due against C&D Contractors on November 20, 2018. The petition only listed C&D, as they were believed to be the employer responsible for claimant’s “last injurious” asbestos exposure. As to the claimant’s other past employers, Boulden Plumbing LLC and Emjay Engineering, the claimant did not work for them within the ten-year latency period for developing asbestos-related mesothelioma. Further, claimant’s work with these companies did not involve asbestos exposure. Accordingly, claimant’s petition did not name these employers. However, more than one year after the Petition was filed, employer defendant, C&D, filed a motion to add these employers as potential defendants; neither employer was given notice of the motion or a chance to respond before the Board granted the request. Receipt of the Board’s Order was the first notice that either employer had of any potential link between claimant’s diagnosis and his employment with them.
Ultimately, both Boulden and Emjay filed Motions to Dismiss which proceeded to an Evidentiary Hearing where Boulden and Emjay presented evidence as to the lack of asbestos exposure as well as the lack of notice. Claimant admitted that he did not file against either employer because it was believed that such claims lacked merit. C&D’s position, however, was that Boulden and Emjay must be part of the litigation to reserve C&D’s right to pursue indemnification/ contribution against these employers.
The Board soundly rejected C&D’s argument agreeing with Boulden’s position that indemnity and contribution are not permitted in the context of an occupational disease – in fact, the Delaware Supreme Court explicitly recognized that other jurisdictions permitted indemnification while Delaware did not. The employer/ carrier responsible for the last injurious exposure would be responsible for the entire claim. The Board further agreed with Boulden’s arguments that Boulden must be dismissed because claimant did not meet the statutory deadlines. Section 2361(d) of the Workers’ Compensation Act creates a one-year statute of limitations for occupational diseases, while Section 2342 requires the claimant to provide written notice of the potential link between the diagnosis and the employment within six months of claimant obtaining such knowledge. Because the claimant failed to do so, there is an absolute bar on recovery. C&D could not circumvent those requirements via its motion, and thus Boulden and Emjay were dismissed.
William McLaughlin v. C&D Contractors, IAB No. 1478363, Jan. 5, 2021.
There are not many Appellate Division decisions on occupational hearing loss and tinnitus, which is why the decision is of interest in Donzella v. SG Performance Plastics Corp., A-2408-19T3 (App. Div. January 12, 2021).
The case involved an employee of SG Performance who worked at its manufacturing warehouse in August 2015. He and 30 other employees worked around multiple machines. He wore eyeglasses and gloves but no hearing protection.
One month after beginning his employment, Donzella went to St. Joseph’s University Medical Center in Paterson and stated that he was very dizzy. He was given Meclizine for treatment of motion sickness and vertigo. He never returned to work at SG Performance but did eventually get a job in 2017 at the State of New Jersey Water Commission.
Petitioner saw Dr. Festa, an ENT physician, who noted petitioner’s hearing levels were normal. Next he saw another ENT, Dr. Samadi, who diagnosed bilateral tinnitus and sensorineural hearing loss. He later added a diagnosis of a deviated nasal septum.
Petitioner filed a claim petition on November 10, 2015 for his dizziness, vertigo and hearing loss. He amended the CP nearly two years later to allege occupational exposure to excessive noise from August 3, 2015 through September 30, 2015. Petitioner was seen by Dr. Gerald West, another ENT, who diagnosed tinnitus due to extreme noise exposure in 2015. Dr West estimated 25% permanent partial disability for tinnitus but noted that the petitioner’s hearing was within normal limits.
Respondent retained Dr. Steven Freifeld, who observed that petitioner still complained of bilateral hearing loss and sensitivity to noise as of September 2018. However, his dizziness had abated. Dr. Freifeld felt that there was no hearing loss and found that his symptoms were not work related.
The experts in this case did not testify but their reports were introduced into evidence in lieu of testimony. This procedure is known as a trial on reports. The Judge of Compensation did not find petitioner’s testimony to be credible on certain points. The judge commented that petitioner described the machines as being loud but admitted that he could hear directions and instructions from his supervisor if the supervisor raised his voice. Furthermore, the judge observed that neither Dr. Festa nor Dr. Samadi commented on causation between work and his symptoms. Finally the judge said, “there was no data, study or reference of any kind to suggest that this condition was caused by the limited noise exposure.”
In ruling for the respondent, the Judge of Compensation found Dr. Freifeld to be the most credible of all the ENT physicians in this case. The judge accepted Dr. Freifeld’s opinion that petitioner had vestibular neuronitis, a condition that can happen to someone at any point in time. The judge found no evidence causally relating this condition to work.
The Appellate Division deferred to the expertise of the Judge of Compensation and affirmed the dismissal of the case because there was ample evidence to support the decision below. The case underscores that in any occupational hearing loss or tinnitus case, there must be a record established of specific work conditions, such as decibel levels, in tandem with consideration of medical studies or data connecting fairly common conditions like tinnitus or noise sensitivity to the specific work conditions.
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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.