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 Tuesday, July 21, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different states will present a timely and comprehensive webinar entitled: Pandemonium in the Time of the Pandemic. This is the eighth in a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network at the Center for Education Excellence.
The webinars are free. All you have to do is register.
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.
JULY 2020
2020 TENNESSEE WORKERS’ COMPENSATION LEGISLATIVE UPDATE
The Tennessee General Assembly passed two workers’ compensation bills in 2020. Both implement important statutory changes. For the most part, these changes tend to favor the injured worker.
I. Tennessee Public Chapter 731 (Senate Bill 2190)
The more significant of the two workers’ compensation bills for 2020 was Senate Bill 2190. This bill was signed by Governor Bill Lee on June 22, 2020.
A. Period of Compensation for Permanent Partial Disability
Permanent partial disability (PPD) under the current workers’ compensation law is typically addressed at two separate points in the claim. The original award of PPD is calculated simply by multiplying the impairment rating by 450 weeks, and then multiplying the result by the employee’s compensation rate. The result is a sum of money to which the employee is entitled regardless of his or her work status. However, the original award of PPD also creates a period of compensation, which is the amount of time represented by the original award. For instance, if the employee has an impairment rating of two percent (2%) to the body as a whole, then the period of compensation is nine (9) weeks – because two percent (2%) of 450 weeks is nine (9) weeks.
The period of compensation will begin on the date of maximum medical improvement and will expire at a specified date in the future depending on the number of weeks involved. On that date, the employee’s work status is examined, and if the employee is not back at work at the same or greater wages for any employer, then the employee may be entitled to additional PPD based on the application of certain enhancement factors for work status, age, education, and unemployment rate. This additional PPD is referred to as the “resulting award” of PPD.
That two-part system looks fine on paper, but in practice, the system breaks down a bit when the employee has a small impairment rating. For instance, if the employee has an impairment rating of one percent (1%), then the period of compensation is only four and a half (4½) weeks. In many cases, that period will have come and gone before the impairment rating is even known, let alone allowing enough time to settle the original award and then subsequently examine the employee’s entitlement to a resulting award of PPD.
In Senate Bill 2190, the General Assembly has addressed this issue by adding an additional amount of time after which the employee’s entitlement to a resulting award of PPD will be determined. That is, under the new law, the employee’s entitlement to a resulting award of PPD will be determined as of the date the period of compensation expires,or 180 days after the employee reaches maximum medical improvement, whichever is later. The effect of this change will be to allow greater opportunity for employees with smaller impairment ratings to seek additional PPD if they do not return to work within 180 days of reaching maximum medical improvement.
Likewise, under prior law, the employee had one (1) year after the period of compensation expired to file a Petition for Benefit for Determination seeking additional PPD benefits. That time period has also been modified to allow the filing within one (1) year after the period of compensation expires,or within one (1) year after the 180 day period after the employee reaches maximum medical improvement, whichever is later.
B. Uninsured Employers Fund
The Uninsured Employers Fund (UEF) was created to help provide some compensation benefits to employees who suffered work injuries while working for employers who did not have workers’ compensation insurance. To be eligible to receive compensation from the UEF under the statute and prior law, an employee had to satisfy five criteria. First, the employee had to be employed by an employer who failed to properly secure workers’ compensation insurance coverage. Second, the employee suffered an injury that would be considered compensable under the workers’ compensation law, at the time the employer had no worker’s compensation insurance coverage. Third, the employee was a Tennessee resident on the date of injury. Fourth, the employee provided notice within sixty (60) days after the date of injury to the Tennessee Bureau of Workers’ Compensation of the injury and of the employer’s failure to secure insurance coverage. Finally, the employee must have secured a judgment for workers’ compensation benefits against the employer for the injury.
Senate Bill 2190 left this system mostly intact, but slightly modified the fourth element of employee eligibility to make it easier for an employee to seek benefits from the UEF. Specifically, the sixty (60) day notice requirement was extended to 180 days.
Senate Bill 2190 also removed a statutory requirement that the Court of Workers’ Compensation Claims must convene a full and final hearing no more than sixty (60) days after the notice of hearing has been filed. This requirement was deemed to be unrealistic, and it was therefore deleted from the statute.
C. Effective Date
The statutory changes discussed above under Senate Bill 2190 are effective for injuries on or after June 22, 2020.
II. Tennessee Public Chapter 682 (Senate Bill 2189)
Senate Bill 2189 is a relatively narrow bill targeted at a very specific issue: jurisdiction and enforcement over out-of-state construction companies.
Under prior law, extra-territorial jurisdiction over out-of-state construction services providers was analyzed using the same statutory standard that would apply to any other employer. However, under Senate Bill 2189, a new scheme now applies for out-of-state construction companies.
Under the new law, any construction services provider performing work in the state of Tennessee must maintain workers’ compensation insurance coverage throughout the duration of that work and must designate “Tennessee” in section 3A of the construction services provider’s workers’ compensation insurance policy or endorsement.
To help enforce this requirement, Senate Bill 2189 also added a new statutory mechanism to collect penalties issued against violators of the workers’ compensation insurance coverage requirements, who try to avoid the penalties by closing the business down and opening a similar business under a new name. That will no longer work, because the Bureau can now seek to enforce penalties against a successor in interest.
Senate Bill 2189 was signed by Governor Lee on June 15, 2020, and it is effective as to penalties assessed on or after that date.
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com
Below is an update to Operations at the Office of Administrative Hearings:
Until further notice, in-person hearings continue to be limited to critical, priority matters that cannot effectively be held by a remote method (e.g. telephone). Judges are making decisions on a case-by-case basis in consultation with the parties. This policy will be in effect for the indefinite and foreseeable future.
Virtual proceedings
In the last OAH update, it was announced that they were adding a web-based platform for video proceedings to replace some telephone proceedings. On May 20, 2020, it was announced that Microsoft Teams is the platform that OAH will use for virtual proceedings. Judges and staff have engaged in mock hearings using Microsoft Teams and provided feedback around the technology itself and business processes.
OAH will start with highly predictable, lower-risk proceedings that are already being held by telephone. We will slowly and deliberatively incorporate more judges and more complicated proceedings as we all become accustomed to this new experience. Judges will continue to make decisions on a case-by-case basis and in consultation with parties. Starting in June, judges will contact parties to suggest converting select proceedings to Teams. Parties should not contact the assigned judge.
OAH chose Microsoft Teams for the following reasons:
What are the next steps at CWK Law?
With virtual Hearings on the horizon, we are working to become proficient in using Microsoft Teams. This will be important to the effective presentation of cases, especially when it comes to seamlessly presenting exhibits and arguments. We will also need to prepare our witnesses to use this software as well. Our plan is to participate in training sessions, demos, and possibly mock hearings. Below are links provided by OAH for sessions and instructions to utilize as training.
https://microsoftteams.eventbuilder.com/MaximizingTeamsMeetings
https://support.microsoft.com/en-us/office/meetings-in-teams-e0b0ae21-53ee-4462-a50d-ca9b9e217b67
https://support.office.com/en-us/article/join-a-teams-meeting-078e9868-f1aa-4414-8bb9-ee88e9236ee4
By: Parker T. Olson
(952) 525-6930
As of July 1, 2020, the maximum workers’ compensation payable is increased to $920.00 per week and the minimum is increased to $253.00 per week. The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed here.
Unfortunately, this newsletter does not contain good news for Georgia’s employers and Insurers. The Supreme Court has dealt a final blow to the scheduled rest break defense, leaving it essentially ineffective absent the most narrow of circumstances.
As is always the case, prepared employers are ever-adapting to changing conditions within our comp system and this ruling should cause us to rethink the manner in which we handle employee breaks and “free time”.
Casey B. Foreman
Levy, Sibley, Foreman & Speir, LLC
cforeman@lsfslaw.com
(866) 995-8663
Employers, third party administrators and insurance carriers have for months been expending a great deal of time collecting information needed to make compensability decisions in respect to COVID-19 claims. There are many important questions to be asked in making such decisions. This blog focuses not so much on specific questions but on areas of inquiry.
PCP and Hospital Records
Primary care physician records as well as hospital records related to COVID-19 are often pivotal in making compensability decisions. The PCP records often document when symptoms first appeared and what those symptoms were. The physician almost always asks the patient questions about the source of the coronavirus, specifically whether that source is a family member, friend, work associate, or someone whom the employee was assisting or caring for. Similarly, initial hospital admission records may assist in confirming the start of symptoms and source information.
Source and Exposure Identification
Questions should focus on where and how the employee believes he or she contracted the virus. Sometimes the employee knows no specific source and other times the employee is quite certain of the source. Whether the employee indicates the source is a colleague, patient, or customer, follow-up questions should address how much time the employee spent working with this individual or individuals and how close they physically were. Was there daily contact and what was the physical work situation? Does the employee know whether the source has tested positive for COVID-19? Were masks or protective devices being used?
Quarantine Issues
One area of inquiry should be whether any colleagues, close friends or family members have been quarantined within the past month. If the answer is affirmative, follow-up questions need to focus on the reason for the quarantine and whether the employee is aware of positive or negative test results for the individual who was quarantined. If the quarantined individual is a family member, it is important to ask about contact which the employee had with the family member before, during and after the period of quarantine. The dates of the quarantine period should also be identified.
Travel Issues
Each states has had somewhat different approaches to responding to the coronavirus, so it is important to ask questions about travel both within and outside the employee’s home state and places where the employee visited and stayed. By the same token, inquiry should be made about any friends or relatives who have visited the employee in the last month and the health of the visitor.
Timeline Questions
The CDC advises that respiratory symptoms of COVID-19 usually appear an average of 5-6 days after exposure, but symptoms may appear in as few as 2 days or as long as 14 days after exposure. This is important to keep in mind in the event that the employee has just recently tested positive for COVID-19 but is pointing to a source that the employee has not been around for four weeks. It is often difficult for any of us to remember what we were doing a few weeks ago. Calendars and emails are often helpful in refreshing recollection.
Outside Activities
Questions need to be asked about recent gatherings, whether they be religious, social, or entertainment oriented. Family get-togethers have been documented in many articles as a source of spreading coronavirus. It is worthwhile to ask the employee whether he or she has been shopping in the past month and worthwhile to confirm that the employee wore a mask or similar covering.
Symptoms and Medications
Questions about symptoms and medications are significant because one can have COVID-19 long before a positive test confirms it. The questions should document when symptoms occurred, what they were, what medications were taken, and whether symptoms changed over time. This information can often be checked against family doctor or hospital records. For those who have had symptoms, it is helpful to pin down the nature and severity of the symptoms. This information may take on added significance if a claim petition should later be filed in the Division with allegations of impairment of specific bodily organs. Of course, as has been well documented, some people who are positive for COVID-19 have no symptoms at all.
COVID -19 Testing
It is necessary to ask about positive and negative COVID-19 test results and the dates of those tests. If a physician or hospital was involved in facilitating the testing, those records should be obtained.
Last Employment Date and Second Jobs
An employee who reports a COVID-19 claim should be asked when he or she last worked, whether the work was performed on site or remotely, and whether the individual has another job. There are hundreds of thousands of employees in New Jersey who work part-time jobs. An EMT may work part-time in that position but have another full-time position. A nurse or technician may work part-time for two hospitals. Decisions on compensability are obviously much more complicated when someone has two jobs since there may be potential exposure in one or both jobs or no exposure at all. In multi-employment situations, it becomes critical to obtain a record of the days worked in each position. That information should be compared with the timeline of symptoms and illness.
Summary
These are some of the key areas of inquiry that will facilitate decisions on compensability. Employers, third party administrators and carriers should bear in mind that when if a decision is made to accept a COVID-19 claim, that does not mean that the allegations of the formal Claim Petition have necessarily been accepted. For instance, if an employee has contracted work-related COVID-19 and files a claim petition alleging permanent pulmonary impairment and psychiatric impairment, the pulmonary and psychiatric aspects of the claim petition may still be denied. Just as in any workers’ compensation claim, there must be a showing of objective evidence of causally-related impairment to support an award in workers’ compensation.
The author has a useful list of questions for clients and readers to help make COVID-19 determinations. Readers are welcome to send an email to jgeaney@capehart.com for a request for this list.
--------------------------------
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.
By: Lawrence Hamby (Associate Attorney -Orange Office)
A few years ago, there was a popular book entitled “The 48 Laws of Power” which offered guidance on how to handle difficult situations. One of those laws was to keep your hands clean, which during the current pandemic is sage advice literally and for California employers figuratively as well given the updated statewide industry guidance and reporting guidelines provided from Cal/OSHA related to COVID-19. (See link:https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html)
On May 27, 2020, Cal/OSHA provided guidance on updated reporting guidelines that will affect employers big and small in the Golden State. Fortunately, there are not 48 new guidelines to take into account for Cal/OSHA reporting which is now broader than federal OSHA is some respects, but there is enough to keep employers busy as the reopening in California takes effect off with millions more workers expected back on the job soon.
The Difficult Made Easy. With an airborne disease such as COVID-19 it is almost impossible to determine how someone contracted it. Nevertheless, Cal/OSHA by providing reporting and recording guidelines for COVID-19, has made it easier to determine whether to report a potential case or not since it has taken much of the discretion away from the employer.
For instance, California employers going forward will need to record on their Log 300 all COVID-19 illnesses if there is a work-related confirmed case or positive test for COVID-19 of an employee involving any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or significant injury or illness diagnosed by physician or other licensed healthcare professional.
But, this is where federal OSHA guidance and Cal/OSHA diverge since federal OSHA generally requires a COVID-19 case to be confirmed through testing, whereas Cal/OSHA statesthat even if testing is not available it is recommended to err on the side of recording if one of the six general recording criteria listed above are present, which is broader than Fed/OSHA. So far two million have been tested in California and that number is increasing by an average of 60,000 tests per day.
Previously, for record keeping purposes the employer did not have the burden put on it to determine if a COVID-19 case was industrially related. Now, Cal/OSHA has fine-tuned the decision making process and requires thatvarious factors be considered for the determination. Such as, if there was a known exposure to persons infected with the virus that causes COVID-19 in the workplace or even working in the same area, this could lead to the illness being determined to be work-related. Likewise, if there is a sharing of computers, equipment, or work vehicles which may have exposed a worker to the virus. There will be a presumption by Cal/OSHA of work-related exposure unless an exception in 8 CCR section 14300.5(b)(2) specifically applies.
The more difficult are those in which there was not a known exposure that could trigger determination of work-relatedness such as the amount of contact a worker has with the general public, how stringent the safeguards were at the workplace in wearing masks and enforcing physical distancing and if the worker had contact with someone who exhibited the symptoms of COVID-19, which could include delivery persons or vendors.
The zone of safety is to record and report the above cases, keeping your hand clean with Cal/OSHA.
Not recordable for Cal/OSHA purposes are days away from work solely spent in quarantine with no work-related illness.
Timing Is Everything. Going forward employers must also report to Cal/OSHA immediately any cases of COVID-19 that are work-related and meet the definition of a serious illness that requires inpatient hospitalization for other than medical observation or diagnostic testing. This does not have to be an overnight or 24 hour stay. The report to the nearest Cal/OSHA office must be made within eight hours after the employer knows or should have known of the serious illness or death. Again this goes beyond the current federal OSHA guidelines which allows for reporting within 24 hours.
What if you are a general or special employer or a PEO? The zone of safety may require all involved employers to report any work-related Covid-19 illness to Cal/OSHA.
Don’t Play Doctor. An employee may become sick while at work and display symptoms of COVID-19. What is an employer to do in this situation? According to the Cal/OSHA guidelines for reporting purposes it does not matter if the illness is work-related, it triggers the reporting requirement by the employer so that Cal/OSHA can make the preliminary determination of work relatedness.
The factors that Cal/OSHA will use to make a preliminary work-relatedness determination are whether there are multiple cases in the workplace, the type, extent and duration of contact with others especially the general public, physical distancing and other controls as well as contact with anyone who exhibited symptoms of COVID-19.
This is applicable even if COVID-19 case has not been diagnosed by a licensed health professional as required under the federal OSHA guidelines.
Sometimes there is a reluctance to report a serious illness/injury as work-related because it is assumed that this is an admission of liability. This is not the case and there is no admission of responsibility, it is merely compliance with a mandatory reporting requirement.
One final point is Gov. Newsom’s Executive Order in May regarding the rebuttable presumption for workers compensation benefits and COVID-19. The Order does not alter or affect in any way a California employers reporting and recording obligations under Cal/OSHA regulations.
Good health to you and keep your hands clean!
By: William Davis (Associate Attorney -Santa Rosa)
Everyone has been focused on Governor Newsom’s May 6, 2020 Executive Order creating a temporary rebuttable presumption for AOE/COE and temporary disability benefits in COVID-19 cases. Rightfully so. But while all eyes were on the COVID-19 presumption many may have missed another Executive Order that came out the very next day.
On May 7, 2020, Governor Newsom issued Executive Order N-63-20. Its impact is temporary and will last as long as the California-declared state of emergency, or until lifted by the Governor. The majority of this EO deals with extending some deadlines that have been impacted by the COVID-19 pandemic and other public health concerns. However, buried in the May 8, 2020 EO in paragraph 11 is an order that will impact hearings and trials at the WCAB, particularly where witnesses are required. This EO suspends the rules requiring a witness to be physically present at a hearing if ALL of the following are satisfied:
This is going to have a dramatic impact on the way in which trials at the WCAB are conducted, if they are conducted at all. While the EO allows for hearings to be conducted “by telephone, television, or other electronic means”, it requires that each participant be able to hear and observe exhibits.
How will this play out in practice? The short answer is that most trials will be continued and parties are well advised to try to resolve cases informally where it makes sense.
The WCAB is already conducting hearings other than trials by conference call. It makes sense that this system will be used for trials as it is already in place and does not require any new equipment, software, IT support, or training. This means that the Judge and the respective counsel will be left to assess witness credibility solely by voice, which is a very poor substitute to direct observation of a witness in a court room. Ordinarily, a good attorney or judge will watch closely for visual cues such as whether the witness maintains eye contact, whether they are referring to notes, or even whether someone is whispering an answer in their ear. The trial Judge will be unable to gauge pain behavior, or lack thereof, or even see if they are using any durable medical equipment like a cane, brace, or sling. How are the Judge and other parties to even ensure that the witness is who they say they are? Without video, fraud is definitely a concern. And, as every litigator will tell you, there is a certain gravitas when a witness actually takes the witness stand and possibly has to face either the employer or the Applicant when telling their story. That will be lost. Also lost will be the ability to ensure that witnesses who have not yet testified are excluded while another is testifying. Over the phone, who knows who else is listening in?
Of course, there was a recent case where an out of the county witness was allowed to testify by FaceTime on an iPhone. But, in that case, all the other case participants were in the courtroom. This would be far more difficult to do with the respective attorneys, the Judge, and the court reporter all scattered to different locations.
And, what of the requirement that a participant be able to observe the exhibits? This would include a potentially expansive list of people: the direct parties, witnesses, the Judge, and possibly even the court reporter and interpreter, if applicable. We have already seen at least one judge require that that witnesses must be able to see and review all exhibits prior to giving testimony and that if they do not have the ability to do that, the trial will be continued.
The requirement that members of the public be allowed to observe makes sense for civil and criminal trials. But, it is indeed the rare workers’ compensation trial that has an audience of the general public or press. This section should not pose much of a problem at the WCAB.
More interesting is the requirement that the Americans with Disabilities Act and Unruh Civil Rights Act be satisfied. How is the presiding judge to ensure this in all cases? Suppose a participant is hearing impaired. Does the use of a telephonic captioning device satisfy the requirement that they be able to hear the proceeding? How can the parties effectively utilize a sign language interpreter over the phone? Or, if the participant is visually impaired, how does the presiding judge ensure that they can observe exhibits? If the WCAB cannot accommodate those with hearing or vision impairments, or possibly other impairments, are they being deprived of due process on the basis of a disability?
While some trials will need to go forward out of necessity, we can expect to see the majority of trials being continued into the indefinite future. That, or the WCAB could utilize a video-conferencing platform with appropriate security measures in place. Of course, that means that we’d all have to hope that our going-to-court wardrobe still fits after these months of shelter in place.
A copy of this EO can be found here: https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-on-extending-deadlines-impacted-by-covid-19/
On Friday, June 26, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different states will present a timely and comprehensive webinar entitled: Navigating Post-Injury Wage Earning Capacity in a COVID World. This is the seventh in a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network at the Center for Education Excellence.
The webinars are free. All you have to do is register.
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.
Claimant was involved in a work-related injury to her low back in 2008, and for the next five years, she received low back treatment – including injections – paid for by the State of Delaware. She then stopped treating for her low back for a few years, until she returned for more injections and ultimately underwent a lumbar fusion surgery from L4-S1. Drs. Eskander and Cucuzzella both testified on behalf of the claimant that the return to treatment and the surgery were part of the progression of the low back injury from 2008. However, Drs. Rushton and Meyers testified on behalf of the State of Delaware that the 2008 accident had involved a temporary aggravation of her low back condition that then resolved. Citing to the progression of findings on the imaging studies, including entirely new findings of spondylolisthesis for the first time in 2015, Dr. Meyers and Dr. Rushton agreed these findings could not be attributable to a single event from nearly a decade earlier.
The Industrial Accident Board found claimant did not meet her burden to prove that the medical treatment since 2017, to include the 2019 lumbar fusion surgery, was causally related to the work accident. The Board accepted the testimony that the frequent imaging studies showed a natural progression of degenerative lumbar disease, which was wholly consistent with the claimant’s age and gender, and which the experts testified could occur without any trauma. One critical finding was the appearance of spondylolisthesis in 2015, seven years after the work accident; because that was a primary component of Dr. Eskander’s rationale for surgery, the Board agreed that it could not link a finding so distant in time back to the work accident.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.www.hfddel.com 302-573-4800
Linda Callahan Terry v. State of Delaware, IAB No. 1473826, April 29, 2020.