State News

UPDATE: The Families First Coronavirus Response Act for Employers

Nathan C. Levy - GEORGIA

Levy, Sibley, Foreman & Speir, LLC 

(866) 995-8663

www.lsfslaw.com 

Alaska Statute 23.30.395(24) includes in its definition of an injury, “an occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury.” It is well established that a virus such as COVID-19, or Coronavirus, is an illness that if contracted in the workplace, would entitle the affected worker to workers’ compensation benefits that may arise from the illness.

The Alaska Supreme Court, in *Delaney v. Alaska Airlines, *held that in order to succeed in a claim for an “occupational disease” or illness, an employee must show that: 1) the disease was caused by the conditions of their employment; and 2) as a result of the conditions of the employment, the risk of contracting the disease is greater than that which generally prevails in employment and living conditions. In a claim for Coronavirus, the Board would evaluate this two-prong test at the first step of the compensability analysis. Both elements must be satisfied to create the “preliminary link” between employment and the claimed workplace disease. The Alaska Supreme Court described the rationale for requiring a “preliminary link” before finding a worker is entitled to workers’ compensation benefits as, “… the idea is to rule out cases in which claimant can show neither that the injury occurred in the course of employment nor that it arose out of it, as where he contracted the disease but has no evidence to show where he got it. In claims that are ‘based upon highly technical medical considerations,’ medical evidence will likely be necessary for the employee to meet their burden of showing a ‘preliminary link.’”

In reviewing claims for Coronavirus, the Board would likely find that the disease is a “highly technical medical consideration” and require some medical evidence that the worker has contracted the virus. Once medical evidence establishes that a person has the virus, they will also need to show that they contracted it through the conditions of their employment. The Alaska Supreme Court has held that this requirement is intended to bar claims where an employee “has no evidence” that they contracted an illness out of the course of their employment. Employees seeking benefits for Coronavirus would likely need to prevail on one of the two theories of compensability for occupational disease. If the employee can show evidence of direct contact with a person positive for Coronavirus in the workplace, the presumption of compensability will have attached. Or, alternatively, if the employee can show that the condition of their employment exposed them to a greater risk of contracting the disease than the general public, there is also a good chance that the Board would find a preliminary link between the employment and the disability or need for treatment, and the employer and its carrier may be liable.

If the employee can establish the “preliminary link,” the employer must rebut the presumption, or pay benefits on the claim. In *Huit v. Ashwater Burns,* the Alaska Supreme Court held that rebutting the presumption requires the employer to either eliminate the possibility that the illness was related to the employment, or show that some other source outside of the employment caused the disease. It will be difficult to rebut the presumption in cases where the claimant can show direct contact with an infected person in the workplace. In such instances, benefits will likely need to be paid for any disability or need for treatment related to the Coronavirus. Employers and their insurers should have more factual grounds to dispute a claimant’s assertion that their workplace has placed them at a greater risk for contracting the virus than the general population. Factors to consider are how many people might the claimant come in close contact with on an average day, were there safety precautions such as hand sanitizing stations or masks, or other measures in the workplace to reduce the likelihood of spreading the disease was acquired through work exposure.

We recommend that Alaska employers and their insurers and adjusters be prepared for an influx of claims related to the Coronavirus. Actions are being taken at the local and State level to minimize the spread of the virus, and as a result of keeping people away from workplaces that have high risks for spreading the disease, it could result in a significant decrease in the potential burden on employers and their workers’ compensation carriers during this pandemic. Where possible, employers are encouraged to take steps in reducing the possibility of spreading the disease in the workplace. By doing so, it may improve chances of convincing the Board that the person’s employment did not place the claimant at greater risk of getting the disease than the general population.

Claims should be closely evaluated when they come in for whether they satisfy the first step of the presumption analysis and create the preliminary link between their employment and their illness. It will be during that first step of the presumption analysis that employers will have the best chance to successfully deny a claim, because once the presumption has been attached, it may be difficult to successfully rebut under the standard articulated by the Court in *Huit*. Please feel free to contact us if there is more information we can provide on this issue.

Below are informational links from the Division about how COVID-19 is effecting Board and Appeals Commission procedures and from the State of Alaska regarding its mandates which may affect medical care in workers’ compensation claims. Please note that these bulletins and mandates can change.

http://labor.state.ak.us/wc/bulletins/20-02.pdf

http://labor.state.ak.us/wc/bulletins/20-02.pdfhttp://labor.state.ak.us/wc/bulletins/20-03.pdf

http://labor.state.ak.us/WCcomm/documents/AWCAC_Procedureal_Order_No1.pdf

http://dhss.alaska.gov/News/Documents/press/2020/SOA_03192020_HealthMandate005_ElectiveMedProcedures.pdf 

We wish you all good health!

Meshke Paddock & Budzinski, P.C.

Written by: Bruce Hamilton and Tracey Jones

Brief overview of the legal analysis of COVID-19 workers’ compensation exposure in North Carolina.

COVID-19 cases must be handled and analyzed on a case-by-case basis; however, based upon the current statute and case law, it is unlikely that suspected COVID-19 or actual COVID-19 cases would be considered compensable under either an injury by accident or occupational disease claim theory in North Carolina. With respect to occupational disease claims, North Carolina is an increased risk state, not a positional risk state. Even if the employee can show some increased risk, they will need to prove that any disease they contract actually came from their employment as opposed to some other type of exposure outside of their employment. Because the legal analysis behind the compensability of a COVID-19 diagnosis is very fact specific, please contact one of our attorneys to discuss your scenario in more detail.

How an increase in teleworking may affect workers’ compensation claims in North Carolina.

COVID-19 has reached North Carolina and is impacting our way of living and working every day. Many employers are relying on teleworking to keep their businesses up and running. With this change in location of work space, we are likely to see an increase in home-related injuries. Employees are allowed to work from home; however, they do not have 24/7 workers’ compensation coverage the entire time they are at home. While many will be teleworking, they will also be engaging in personal activities during this unusual period of time. It is going to be very difficult to contradict the employee’s account of when an injury occurred due to the very nature of teleworking.

How do we know the claimant was actually engaging in work at the time of an injury?

Any injuries at home will have to arise out of and in the course and scope of the employment. There is little case law in North Carolina dealing with injuries suffered by employees working remotely; however, these claims are no different from other claims in the level of proof required to establish a compensable injury by accident. Nonetheless, these claims will pose unique challenges for defendants when investigating the facts surrounding these alleged injuries. Defendants will need to thoroughly investigate the allegations and utilize recorded statements as quickly as possible before the employee retains representation. Questions should focus on the injured employee’s activities at the time of the injury, as well as the normal routine they have developed while working remotely.

An employee who is teleworking will still need to prove:

1. An accident. Was there an interruption of the normal work routine?
   • Were they doing their normal job duties? Were they doing the job in their normal way and, other than the injury, did anything unusual occur?
   • Additional questions will need to be asked about the other activities they engage in while working remotely. What was their normal schedule and what other personal obligations did they have while working remotely? Who else was in the remote location and where were they located in the remote location?
2. Arising out of the employment. The accident has to have some causal connection to the employment. One area of inquiry is whether the employee has a dedicated work space at their remote location. If the injury does not occur in the work space, then additional questions need to be asked regarding the specific activity being conducted at the time of the injury.
3. In the course of employment. This prong looks at time, place and circumstance of the injury. By having employees work remotely, employers have shifted the location of the employee’s work space, most likely to their home. We do not believe they would be considered traveling employees, which provides a much greater scope of coverage for course of employment issues. Nonetheless, other questions arise such as: When does employment begin? Normally, an employee is deemed to be in the course of their employment as soon as they are on the employer’s premises. This is the “premises exception” to the coming and going rule. When does a remote employee’s day start and end for workers’ compensation purposes? Employers might want to consider establishing general work hours for employees who are teleworking. These are extraordinary times, so some flexibility is required, but general parameters on work hours is appropriate.

Practice Tips:

• Employers should set specific work hours for employees who are teleworking and have a system for checking in and out.
• Adjusters should conduct recorded statements of any reported injuries at home as early as possible and get as much information as possible, including additional information regarding the employee’s usual activities and schedule during this unusual period of time when they are teleworking.
  • How did they set up their home office, what was their schedule on a typical day, did they engage in any other personal activities while working from home etc.?
• Carriers should review claims carefully and liberally use the Form 63 procedure for payment of medical bills without prejudice or use the Form 61 procedure when information is insufficient to accept or deny the claim.

During this time of uncertainty, our team is here for you. Please contact one of our workers’ compensation attorneys if you have any questions or concerns.

New Jersey lawyer and nationally recognized workers’ compensation guru, John Geaney recently posted a COVID-19 Q&A on his award winning Blog site.  The questions are certainly relevant nationally and so the following are Alabama specific answers.

Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?

Answer: No, but the employee will likely be entitled to unemployment benefits. 

Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus?  Must the employer pay workers’ compensation benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 3: What if the government shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no work available from home. Does the employer owe workers’ compensation benefits?

Answer:  No, but the employee will likely be entitled to unemployment benefits. 

Question 4: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 5: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 6: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Chris is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Chris just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.  Further, in Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”  Therefore, for COVID-19 to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.  It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

Question 7: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus.  So far all the tests have been negative.  The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized.  She files for workers’ compensation benefits for her lost time and medical bills.  Is she entitled to workers’ compensation benefits?

Answer:   Probably not.  See answer to #6.

Question 8: Given that tens of thousands of employees are now working from home in Alabama due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?

Answer:  The Alabama Workers’ Compensation Act does not specifically address telecommuter/home based workers and there are not currently any high court opinions in Alabama addressing the issue.  Courts in other states have distinguished telecommuters from individuals who may just happen to be performing work at home on a given day.  In those states, once it was established that the employee and employer entered into a telecommuting arrangement, the hazards of the home were considered to be work place hazards.  Written telecommuting agreements that dictate hours of employment, areas of the house that are considered work space, and rules concerning prohibited activity are recommended to help employers and employees know what is and is not considered work activity. 

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 Alabama Department of Labor Workers’ Compensation Division seminars scheduled for April 9^th in Orange Beach and April 23^rd in Birmingham are cancelled.  Per Director, Steve Garrett, they are actively working on securing alternate dates.  Stay tuned.  We will post the new dates as soon as they are available.

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.

On March 18, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order setting forth temporary rules regarding workers’ compensation settlements.  Per the Order, the following rules will be in effect through April 16, 2020:

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.
2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in a court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

The above referenced Order was issued in the wake of a March 13, 2020 Order that suspended all in-person court proceedings through April 16, 2020.  

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.

On March 18, 2020, the Director of the Alabama Department of Labor (ADOL) Workers’ Compensation Division, Steve Garrett, released a Memorandum concerning the Ombudsman Program.  ADOL  Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties.  Per the Memorandum, the ADOL is constantly monitoring the ongoing developments of COVID-19 and the effect it’s having on the ADOL and the services it provides.  Although the Ombudsman Program is continuing to operate, the ADOL is making the following modifications to the procedures normally in place.

1. Whenever possible, the ADOL is asking attorneys, employers and claimants to postpone any previously scheduled mediations and benefit review conferences that are currently set through April 6, 2020. This date may be extended, however, due to COVID-19 related restrictions still in place at that time.

1. For any mediations or benefit review conferences that cannot be rescheduled, the ADOL is asking for those mediations to be held by telephone whenever possible. There are no waivers currently in place from the Alabama Supreme Court that would allow for mediations or benefit review conferences with pro se litigants to proceed without the required notarized advisements under Ala. Code §25-5-290(f)(1). The advisement of the pro se litigant’s right to be represented by counsel and of his or her right to have any settlement reviewed must still be followed with notarized signatures.

1. If either of the above options is not possible, then the ADOL requests that any face-to-face mediations be held only in offices that allow for social distancing as recommended by medical professionals and to monitor the presence of any participant that may meet one of the high-risk criteria (i.e. those with compromised immune systems, etc.)

To reschedule mediation dates or to alter plans for scheduled mediations during this time, it is asked that you contact your ombudsman.  For a list of ombudsman with contact information and the areas of the state that they cover, please e-mail me at mfish@fishnelson.com and I will be happy to send you one.   

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.

In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”

Therefore, for the coronavirus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in generaland that it is peculiar to the employee’s occupation. 

It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

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.

Alabama Court Appearances Temporarily Suspended

On March 13, 2020, the Alabama Supreme Court issued an administrative order which suspended all court appearances for 30 days.  On March 15, 2020, the Court issued a second order which clarified that the first order only applied to in-person court proceedings.   

Alabama Department of Labor Ombudsman Availability

The Alabama Workers’ Compensation Reform Act of 1992 established an Ombudsman Program.  Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties.  Currently, it has been left up to the individual ombudsmen whether or not they wish to travel or attend in person mediations or benefit review conferences.

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About the Author

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

Legal Update by Attorneys Nick Cooling & Alison Stewart

Iowa Workers’ Compensation Commissioner Responds to Coronavirus

On Friday, March 13, 2020, Iowa Workers’ Compensation Commissioner Cortese filed anOrder responding to Coronavirus concerns. In-person hearings will be suspended beginning March 18, 2020 and continuing through June 16, 2020. During this time period scheduled hearings will be held using CourtCall, the agency’s video hearing technology. Fees for the service will be covered by this agency.

For any compensability questions relating to contraction of Coronavirus by Iowa employees, please contact any of the Peddicord Workers’ Compensation Attorneys to discuss further. Analyzing these situations on a case-by-case basis is appropriate.

Shoulder Definition Clarified

The agency filed two arbitration decisions clarifying how the agency defines the shoulder. Recall that the shoulder was added to the schedule in July 2017 and has been compensated based upon 400 weeks since that time. A scheduled member injury has been limited to the impairment rating of an expert.

The decisions are Chavez v. MS Technology, LLC,File No. 5066270 (Feb. 5, 2020) and Deng v. Farmland Foods, Inc.,File No. 5061883 (Feb. 28, 2020). We expect the decisions to be appealed. In light of these decisions, however, the current agency law is that where the injury to the shoulder extends into the proximal portion of the shoulder joint (the portion nearer to the center of the body), it is a body as a whole injury and an industrial disability analysis may be appropriate. The agency cited pre-legislative change cases where the shoulder was defined as the ball and socket between the arm (humerus) and the trunk (scapula), which is medically called the glenohumeral joint. The agency then reasoned that the legislature was aware of this definition when they drafted the 2017 amendment and found that injuries extending into the body side of the glenohumeral joint are body as a whole injuries. Consider the below diagram for additional context relating to the anatomy of the shoulder:

 Importantly, any time the injury extends into the proximal portion of the shoulder joint, including where the surgery performed involves a distal clavicle resection (which is where the surgeon shaves the tip of the clavicle), we can expect the agency to find a body as a whole injury since the clavicle is proximal to the glenohumeral joint. The cases cited in theChavez decision in arriving at the shoulder definition now being applied by the agency specifically identify the distal clavicle as part of the body as a whole. The agency will likely then apply an industrial disability analysis where the Claimant has not returned to work, with the same hours and earnings. If there is a return to work, we would expect the agency to apply a body as a whole rating to 500 weeks like they would for a typical body as a whole injury with a return to work.

Additionally, in the Deng case, penalty benefits were awarded where Defendants did not pay permanency following an IME report from Claimant’s expert containing a permanency rating, despite the authorized treating physician not yet placing the claimant at MMI or assigning impairment. The deputy found that since the authorized treater provided permanent restrictions after a valid FCE, this was the equivalent to MMI, even though the treating doctor didn’t come out and say that in his report. Penalty was awarded from the date that permanent restrictions were provided, not the MMI date in Claimant’s IME report.

These decisions may be appealed, but we will not know the outcome of any appeal(s) for more than a year.

Iowa Supreme Court Reduces Punitive Damages Award in Bad Faith Case

Thornton v. American Interstate Insurance Company, arising out of a compensable work injury where the carrier delayed benefits owed, the Iowa Supreme Court of Iowa recently took up the issue of the level of conduct necessary to justify an award of punitive damages in a bad faith case. Ultimately the punitive damages were reduced, however, the decision did not provide a definitive ratio between punitive and compensatory damages. However, it is instructive as to the level of conduct that will justify certain awards for punitive damages.

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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.