State News

Legal Update by Attorneys Alison Stewart & Steve Durick

1.      Is a positive COVID-19 diagnosis a compensable work injury?

In Iowa there is not a black and white answer about compensability relating to the coronavirus. These claims must be evaluated on a case by case basis.

Iowa is a combination between positional risk (were they at work when it happened?) and increased risk (did work increase the odds of the injury?). Thus, it would be possible for the worker to establish a causal relationship if the worker could prove they were exposed to COVID-19 at work. In parts of the state where there is community spread, however, it would be more difficult for a worker to establish the work caused the infection when the worker could have caught it elsewhere in the community. Healthcare workers would be an exception to this analysis, most likely. It would likely be easier for a healthcare worker to establish a causal link, depending on their field. In many ways this virus, because of its ubiquitous nature, is not unlike the common cold or flu in the context of compensability.  As the virus continues to spread, it will become more and more difficult to determine its source.  Again, these cases should be analyzed on a case by case basis. Peddicord Wharton attorneys are happy to discuss these cases with you at any time.  

More simply, the employee will have to provide a positive test result and a clear link between work and their exposure.

2.      What is the interplay between COVID-19 and the Occupational Disease Statute?

Chapter 85A, the occupational disease chapter, is applied infrequently in Iowa.  Claimants typically bring actions under Chapter 85 whenever possible. 

We typically see these claims generate from a long-standing exposure to something over time. Historically, there was a list of qualifying diseases, but that list no longer exists. To qualify as an occupational disease, according to Iowa Code section 85A.8, the following requirements must be present:

·         Arise out of and in the course of employment.

·         Direct causal connection with the employment.

·         Followed as a natural incident from an injurious exposure occasioned by the nature of the work.

·         Incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment.

·         Appear to have its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence.

Note, a disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation isnot compensable as an occupational disease. The compensability analysis for an alleged occupational disease is really no different than the traditional compensability analysis described above in the COVID-19 context.

According to the Iowa Practice Series on Workers’ Compensation, the use of the term “date of injury” is not appropriate in the context of occupational disease because there is no “injury” suffered.  15 Lawyer & Lawyer,Iowa Practice Series: Workers Compensation, 18:4 (2019-2020). Disablement is the term used.Id. Iowa Code section 85A.4, explains that the “event or condition where an employee becomes actually incapacitated from performing the employee’s work or from earning equal wages in other suitable employment because of an occupational disease.”

In short, we do not expect Claimants to pursue work related COVID-19 claims as an occupational disease.  More likely the claim would be brought under chapter 85 with Claimant needing to prove causation as they would with any work injury in Iowa regardless of whether the claim is brought under Chapter 85 or 85A. 

3.      What about a claim for psychiatric injury where the worker has either contracted COVID-19 as a result of a work exposure, or is merely fearful of contracting the virus?

In Iowa, if an injured employee sustains a compensable physical injury and subsequently develops a psychological injury (i.e. anxiety, depression, etc.), such a psychological injury is deemed a compensable injury as well as long as it is causally related to the physical injury.   These types of injuries in Iowa are classified as “physical-mental” injuries.  The psychological injury can be a new injury (no prior psychological history) or be an aggravation of a pre-existing/underlying mental condition/injury.  In the current situation involving COVID-19, if an injured worker is determined to have contracted COVID-19 at the work place and subsequently develops a psychological injury as a result (or experiences an aggravation of an underlying mental condition), the psychological injury will be deemed to be a compensable injury.

Iowa also recognizes “non-traumatic” mental injuries as being compensable – although the burden of proof is quite difficult. See Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845 (Iowa 1995).  These injuries in Iowa are classified as “mental-mental” injuries.  In “mental-mental” injuries, the mental injury is not preceded by a “physical” injury.  To prove a “mental-mental” injury, the injured employee must establish both medical and legal causation.  Legal causation requires the injured employee prove that the mental injury was proximately caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs, regardless of their employer.  In other words, the injured employee must establish that his or her stress is not common to other employees in similar work (from an objective standpoint).  This is a very difficult burden of proof to carry for the injured worker.  Additionally, the injured worker must also establish medical causation which will require expert medical testimony.  In the current situation involving COVID-19 – and specifically where an injured worker has developed a psychological injury due to fear of contracting COVID-19 – the injured worker will be required to prove that his or her mental injury was “caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs. . .”  The injured worker will be required to prove that his or her stress in that regard is not common to other employees in similar work – which will be very difficult, if not impossible to do, under this current COVID-19 situation.

4.      What is the appropriate benefit commencement date for compensable COVID-19 claims?

If the employee is taken off work by a medical professional for a presumed case of COVID-19 before having a positive test result, the appropriate commencement date would be the fourth date of disability (after the waiting period). If lost time continues beyond the 14^th day, the compensation during the third week must be increased to include the three-day waiting period. Iowa Code § 85.32 (2019). It is appropriate to wait to commence benefits until a positive test result is ascertained, but the worker should then be brought current on benefit entitlement at that time.

5.       How do COVID-19 related shutdowns or layoffs impact temporary benefit entitlement for non-COVID-19 related claims?

If an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.

Support for this can be found here:

Iowa Code section 85.33(3) states that the employer shall pay to an employee for an injury producing TTD, weekly compensation benefits until:

·         the employee has returned to work or

·         is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.

Likewise, Iowa Code section 85.34 states that healing period is owed until:

·         the employee has returned to work,

·         is put at MMI,

·         or it’s medically indicated that the employee can return to substantially similar employment.

Relating to TPD benefits, Iowa Code 85.33(2) says TPD are owed when an employee is not capable of returning to substantially similar employment but is able to perform other work consistent with the employee’s disability.

The only exception to these entitlements is where suitable work is offered and refused. Iowa Code section 85.33(3)(a) instructs that if an employer offers an employee suitable work and that worker refuses, then temporary benefits are not owed.

6.      Do we expect to see longer periods of temporary benefit entitlement for non-COVID-19 claims because of the impact of COVID-19?

It’s possible because some providers have been suspended non-essential medical treatment. In addition, other companies have either had to shut down because of a positive case or have been subjected to a government shutdown. As discussed above, if an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.

7.      Will there be any permanent benefit entitlement as a result of a compensable COVID-19 claim?

We do not know the answer to this question yet, but similar to other injuries in Iowa, Claimant would have to have sustained permanent damage as a result of the illness.

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Let me begin with a correction to a prior blog.  A few weeks ago I wrote in a blog about a hypothetical scenario where an employer requires an employee to be quarantined because the employee was exposed to a fellow employee who tested positive for COVID-19.  Several readers wrote to disagree that the period of lost time should be paid in workers’ compensation, even if the quarantined employee ultimately tested negative and no other workers’ compensation benefits were due.  These comments led me to rethink the issue.  Having reviewed case law in different states on preventive actions and workers’ compensation, I believe the readers are right that temporary disability benefits should not be paid in this situation.

The argument that the employee would make to the judge is that he or she was required to go out of work for a health condition occurring at work.  The employer would counter that if the quarantined employee tested negative, then there is no workers’ compensation issue. This is the better argument: the employer’s action was simply preventive and therefore no temporary disability benefits should be paid.  Any decision on payment of workers’ compensation temporary disability benefits and other workers’ compensation benefits should await the outcome of testing, appropriate investigation and the individual proofs in each case.

Many employers are paying full salary to quarantined employees, eliminating the issue completely.  As of April 1, 2020 there is also a new law that addresses this situation. It is known as the Paid Emergency Sick Leave Act. This law helps employees get paid in precisely the situation addressed in the hypothetical scenario. The law only applies to companies with 500 or less employees.   Attorneys Ralph Smith and Lara Ruggerio of Capehart Scatchard’s Labor Department have written on this subject.  The following is an excerpt from their recent HR Blog.  The purpose of the Act is to provide sick time to employees who are unable to work due to the following situations:

*  Quarantine or isolation relating to COVID-19  

*  Self-quarantine ordered by a health care provider

*  Employee experiencing symptoms of COVID-19 and seeking medical diagnosis

*  Employee who is caring for an individual who is quarantined or is self-quarantined

*  Employee is caring for a son or daughter due to school of child care closure due to COVID-19 precautions

*  Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

The Act applies to all public and private sector employees with less than 500 employees.  Full-time employees are entitled to 80 hours of paid sick time.  A part-time employee is to receive required compensation for two-thirds of the amount of their usual pay.  However, in no case shall the paid sick time exceed the amounts below:

1.      $511.00 per day (and $5,110.00 in the aggregate) if the employee is out due to:

1.      Quarantine or isolation relating to COVID-19

2.      Self-quarantine ordered by a health care provider

3.      Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis

2.      $200.00 per day (and $2,000.00 in the aggregate) if the employee is out due to:

1.      Employee is caring for individual who is quarantined or is in self-quarantine

2.      Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions

3.      Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

Employers are to receive a tax credit for payments made to employees under this law. Moreover, employees may opt to use other forms of paid leave instead of this leave but the employer cannot require that use.  A business with 50 or fewer employees may ask the DOL to exempt it from following this law if compliance will jeopardize the viability of the business as an on-going concern.  The United States Department of Labor recently issued a guidance on what an employer must show to meet these requirements to obtain a potential exemption. The Department of Labor also has the discretion to exclude health care providers and emergency responders from eligibility.

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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. 

In response to the world-wide coronavirus epidemic, one of the most remarkable societal changes taking place in America today is the ubiquitous transition from working in an office to working from home.  The deadly coronavirus is forcing this change, but many think that even when this crisis passes, American businesses will start to reevaluate the advantages of telecommuting given the incredible technology we all have at our fingertips and the potential cost savings in office space.  As tens of millions of new home-based employees carry on their daily work tasks, many clients have begun to ask about the ramifications for workers’ compensation.  The questions this practitioner is receiving almost daily are whether home workers are covered under workers’ compensation and if so, under what circumstances?

The starting point on this discussion is N.J.S.A. 34:15-36, which provides that employment commences when one arrives at the employer’s place of employment.  However, the statute continues that when an employee is required by the employer to be away from the employer’s place of employment, that employee is in the course of employment when engaged in the direct performance of duties assigned or directed by the employer. 

In one reported case involving a salesman, the court recognized that the home can be considered the petitioner’s primary place of employment. Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001).

Surprisingly, there are not many reported cases dealing with home injuries, although one may safely surmise that this may be about to change.  In Kossack v. Town of Bloomfield, 63 N.J. Super. 322 (Law Div. 1960) the court ruled for a police officer who injured himself cleaning his service revolver at home.  The court found that the officer had a duty to keep his revolver clean, noting that the municipality placed no limitations on time or place in regard to this duty.

In another case involving a police officer, the petitioner was working the 7:00 p.m. to 7:00 a.m. shift and got permission from her Sergeant to drive home for dinner while on duty so long as she remained in radio and telephone contact.  The officer finished her meal, headed out the door of her home, and slipped and fell on black ice on her property.  The court found for petitioner on the grounds that the accident occurred in the course of her employment because she was authorized to take her meal at home.  DeCoursey v. Tp. of Randolph Police Dept., No. A-0915-06 (App. Div. Aug. 14, 2007), certif. denied, 193 N.J. 222 (2007).  

Most home injuries involve traumatic events like a slip and fall, but the New Jersey Supreme Court considered an interesting occupational disease claim several years ago, focusing on an employee who worked extensively on her computer at home.  In Renner v. AT&T, 218 N.J. 435 (2014), Mrs. Renner was authorized to work from home three days per week.  She was working on a deadline project and stayed up and worked all night.  At 7:50 a.m. Mrs. Renner took her son outside to catch the school bus and grabbed her leg in pain while walking out of the house.   At 9:00 a.m. she sent an email to a co-worker stating that she did not feel well but would complete the project.  At 11:34 a.m. she called the Edison Township EMS stating that she could not breathe.  She was pronounced dead on arrival at the hospital from a pulmonary embolism. 

The expert retained by Mrs. Renner’s dependent husband testified that sitting at a desk for many hours contributed to the decedent’s deep vein thrombosis and death.  The Supreme Court accepted the testimony of respondent’s expert that the death was not caused by work activities and was not a compensable occupational disease.  The Court accepted the notion that petitioner could be covered for workers’ compensation purposes while working at home, but the court concluded that in this case there was no causation between prolonged sitting and her fatal pulmonary embolism. 

One can safely state that under New Jersey law, injuries that occur in the course of working at home are on equal footing with injuries that occur in the course of working in the traditional office. Yet there may sometimes be surprising differences:

*  Consider two employees:  Employee W is injured in a large office space leaving her immediate work station to converse with a friend on the opposite side of the office. She slips and falls near her friend’s work station, 30 yards away.  Employee H is working in a study at home and walks upstairs during a break to speak with his son who is home sick.  He slips and falls in the bedroom.  Both employees suffer a broken arm. Would both cases be compensable?

Employee W would be covered because she is on the work premises during work hours when she falls.  New Jersey has a strong premises rule.  But Employee H is now outside the study where he works and is upstairs in his house.  Would you consider the entire house to be the work premises?  Is that the intention of any employer who authorizes telecommuting?  Does the employer lack any formal document at all about what is considered the work premises?

* Suppose Employee W takes a break at 10:15 to get coffee at the on-premises office cafeteria and is jostled pouring the coffee, causing severe burns.  The same thing happens to Employee H at home in his kitchen.   Is the kitchen part of the work premises?

In the office scenario, Employee W’s burns will be found compensable under the mutual benefit doctrine because there are some activities that benefit both the employer and employee. Coffee breaks are one of them.  Further, the employee cafeteria is on the premises.  An off-premises slip and fall by Employee W at a Wawa during a break would not be compensable, however.

But what about Employee H? The court in Cooper v. Barnickel Enterprises, 411 N.J. Super. 343 (App. Div.), certif. denied, 201 N.J. 443 (2010) found that a master plumber who worked on the road was covered when he was injured on his five mile drive to get a cup of coffee while on break.  The theory was that someone who works outside an office should have the same opportunity for coffee breaks or restroom breaks as one who is in the office.   Does Employee H have a strong argument that he should be treated the same as someone in an office?  Probably yes although there is no reported case on point.

You can immediately see that the absence of any documentation about home office expectations is problematic.  So what actions can employers take to get some measure of control over home injuries?  After all, there are not likely to be witnesses to home injuries other than family members, and there are no security cameras to verify the mechanism of injury or location of injury.  This practitioner recommends that employers consider the following issues in connection with a written understanding for employees who are approved to telecommute.

*  Does the employer intend to authorize the entire home as the work site? If not, it would be important to put in writing the specific locations that the employee will conduct assigned business, perhaps a home office or the kitchen table but not the rest of the house. That will avoid claims for slips and falls in the driveway while walking to get personal mail or falls in the basement while checking the heater.

*  Are there specific hours that the employee is permitted to work or does the employer allow work at any time suitable to the employee?

*  Will the employee be required to clock in online and clock out when finished for the day?

*  Is the employer responsible to supply and repair equipment such as printers, computers, and fax machines?  Will the employer provide ergonomic assistance to home employees if that is also offered to office employees who experience arm or wrist pain?

*  Employers should make clear that all the normal reporting requirements must be followed when an injury occurs to a telecommuting employee arising out of the employment.  Same day notice is recommended so that the employer can contact its third party administrator or carrier for investigation and, if appropriate, direction of care.

This practitioner is of the opinion that telecommuting is here to stay in much larger numbers.  Financial considerations, traffic considerations, environmental considerations, and enhanced productivity related to elimination of commuting time all favor the rapid ascent of telecommuting.  From a workers’ compensation standpoint, the number of home injuries is likely to be far less than those in traditional office locations particularly if the employer at a minimum designates a specific area where work is authorized.

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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. 

  Coronavirus and Workers’ Compensation in West Virginia

          With the surge of coronavirus cases across the United States, and in West Virginia, questions arise concerning compensability of work exposures. Are coronavirus claims compensable under West Virginia workers’ compensation law?  The answer depends on whether the coronavirus is considered an occupational disease under West Virginia law. If the employee is a public health or safety worker, the exposure to coronavirus may be compensable if the exposure occurred in the normal course of the employee's duties. An "ordinary disease of life" to which the general public is exposed outside the workplace is not compensable in West Virginia as an occupational disease.  

          According to its website, the Centers for Disease Control and Prevention is responding to a pandemic of respiratory disease spreading from person-to-person caused by a novel (new) coronavirus. The disease is named “coronavirus disease 2019” (“COVID-19”) and poses a serious public health risk according to the CDC. According to the CDC, COVID-19 is caused by a coronavirus, which are a large family of viruses that are common in people and many different species of animals, including camels, cattle, cats, and bats.

          In West Virginia, COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. W. Va. Code § 23-4-1(f)(4). In other words, if an employee can prove by a preponderance of the evidence that the employee contracted coronavirus as a result of the employee’s job duties rather than from general public exposure, the coronavirus will likely be considered work-related. An employee must show a direct causal connection between the conditions under which work is performed and coronavirus, and that it follows as a natural incident of the work. If the employee can show studies or research link coronavirus to a particular hazard of the workplace, aprima facie case of causation arises upon a showing the employee was exposed to the hazard and is suffering from the disease. The employer must then offer medical evidence to refute the employee's claim.See Hoult v. Workers' Compensation Com'r, 383 S.E.2d 516 (W.Va. 1989). An employee must actually contract coronavirus and have the virus when making a claim; a fear of eventually contracting coronavirus is not enough for a compensable claim. See Marlin v. Bill Rich Construction, Inc., 482 S.E.2d 620 (W. Va. 1996). 

          For more information visit Spilman, Thomas & Battle, PLLC's COVID-19 Task Force resources page on our website athttps://www.spilmanlaw.com/covid19-resources. You may also contact Dill Battle or Charity Lawrence:

Dill Battle

hdbattle@spilmanlaw.com

304-340-3823

Charity Lawrence

clawrence@spilmanlaw.com

304-720-4056

On April 6, 2020 at 10:00am (CST) Minnesota attorney, Mark Kleinschmidt, will present a timely and comprehensive webinar entitled"COVID-19: FACTS and FEAR for a Workers' Compensation Claim" at the Center for Education Excellence. This is the first of a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network.

The webinars are free. All you have to do is register.

REGISTER HERE FOR THE WEBINAR

About the Author

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

The New Jersey Workers’ Compensation court calendars were suspended March 17, 2020 through April 3, 2020.   On Monday, March 30, 2020, the Director of the Division of Workers’ Compensation, Hon. Russell Wojtenko, Jr. advised in a Notice to the Bar that a limited reopening will occur on Monday, April 6, 2020 to permit telephonic case conferences and settlements.

There are 15 vicinages in New Jersey for workers’ compensation hearings. One supervising judge from each district will be available to discuss certain cases telephonically.  The emphasis will be on emergent matters as well as settlements by affidavit, motions for medical and temporary disability benefits and certain pretrial conferences. 

In the March 30 Notice, the Director made clear that there will be no in-person workers’ compensation proceedings (except for extremely limited emergent matters and certain ongoing motions for medical and temporary benefits and trials in which social distancing will be enforced).

The Director’s Notice to the Bar emphasizes that the goal of the Division is to limit the exposure and spread of the COVID-19 coronavirus to court personnel, attorneys and their staff, as well as litigants, witnesses and members of the public.  The Notice observes that New Jersey workers’ compensation courts will continue to be closed to the public and to non-essential court personnel until April 13, 2020.

Employers, third party administrators, carriers and all practitioners should understand that time demands on the supervisory judge in each venue will be significant in attempting to cover multiple court lists each day.  Still this Notice is very positive news in that emergent matters and settlements by affidavit can now move forward.

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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. 

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

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

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

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

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

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

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

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

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

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

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

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

About the Author

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

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

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

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

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

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

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