NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The Tyler Court of Appeals recently held that the Division has exclusive jurisdiction to determine whether administrative costs qualify as workers’ compensation benefits that the carrier is entitled to recover as part of its subrogation lien.
The Act provides that the net amount recovered by the claimant in a third-party action shall be used to reimburse the carrier for benefits that have been paid for the compensable injury. The Act defines benefits to include medical, income, death, or burial benefits based on a compensable injury.
According to the decision, the carrier allegedly paid a third-party administrator a flat-fee of $5,354,500.00 to assume liability for medical costs on a catastrophic claim. The TPA paid actual medical costs of $2,259,378.58. The carrier allegedly filed an affidavit in the claimant’s third-party action claiming a lien in the amount of $5,587,479.18. This amount allegedly included the $5,354,500.00 paid to the TPA as well as “hundreds of charges for bill and utilization review.”
The claimant’s survivors brought suit against the carrier alleging various fraud claims, all premised on the assertion that a carrier’s administrative costs are not recoverable as part of its subrogation lien. The carrier filed a plea to the jurisdiction which the trial court denied. The carrier then filed a petition for writ of mandamus which the Tyler Court of Appeals granted.
The Court held, “It is axiomatic that the DWC, tasked with regulating and administering the business of workers’ compensation and monitoring insurance carriers, attorneys, and other representatives for compliance with the Act, should be the decision maker with regard to whether benefits have been inflated and administrative costs have been wrongfully included in a subrogation claim.”
The Court explained that because the fraud claims arise out of the carrier’s allegedly improper investigation, handling, or settling of a claim for worker’s compensation benefits, the Division has exclusive jurisdiction over those claims and the claimant’s survivors were required to exhaust their administrative remedies with the Division.
Therefore, the Court held that the fraud claims, should be abated pending the Division’s resolution of whether the carrier is entitled to seek administrative costs as part of its subrogation claim, and if not, whether the carrier committed an administrative violation by allegedly doing so.
In re Old Republic Risk Mgmt., No. 12-19-00144-CV, 2019 WL 2462486 (Tex. App.—Tyler, June 12, 2019).
Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP
We’ve heard reports that Brook Army Medical Center (BAMC) will not release medical records to a carrier unless the claimant signs a DD Form 2569, Third Party Collection Program/Medical Services Account/Other Health Insurance.
What is a DD Form 2569, you ask? It states in part, “ACKNOWLEDGMENT: I hereby agree to pay for any service not covered in whole or in part by my third-party insurer.” BAMC’s current policy is reportedly that it will not accept a standard HIPAA-compliant medical records release signed by the claimant.
Claimants are understandably reluctant to sign the DD Form 2569 agreeing to be personally liable for any unpaid charges. And without the form, BAMC will not provide its medical records to the carrier. As a result, carriers have been unable to obtain necessary medical records from BAMC.
Matt Zurek, DWC’s Deputy Commissioner for Health and Safety, was asked about this practice by BAMC at the July 8, 2019 stakeholder meeting. He said the DWC has not seen the issue before but that there’s no provision in section 413.0112 or the informal draft rules that allows the carrier to withhold payment if BAMC won’t provide its records.
Please let us know if you’ve encountered a similar issue trying to get records from BAMC.
Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP
The Texas Division of Workers' Compensation has published an informal working draft of the rules necessary to implement newly-enacted section 413.0112 of the Act, referred to informally as the Brooke Army Medical Center (BAMC) Bill.
This new statute requires carriers to reimburse a federal military treatment facility (FMTF) the amount charged by the facility as determined under 32 C.F.R. Part 220.
The purpose of the statute is to prevent injured workers from being balance-billed by a FMTF for medical treatment when the carrier does not pay the FMTF’s billed charges.
Section 413.0112 also requires the commissioner to adopt rules necessary to implement this section, including rules establishing:
The informal draft rules do the following:
Rule 134.150
Rule 134.155
A stakeholder meeting was held on July 8, 2019 to discuss the informal draft rules. The Division is required to adopt the rules necessary to implement section 413.0112 no later than December 1, 2019.
- Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP.
There are precious few reported decisions dealing with the jurisdictional requirements for bringing a claim petition in New Jersey when a New Jersey resident is employed out of state, is injured working out of state and is hired out of state. In the reported case of Marconi v. United Airlines, A-0110-18T4 (App. Div. July 22, 2019), the Appellate Division affirmed the dismissal of two claims against United Airlines for lack of jurisdiction in just this situation. The case was successfully handled at both the division and appellate levels by Prudence Higbee, Esq., a partner with Capehart Scatchard.
The facts in the case were not disputed. Richard Marconi lived in New Jersey and suffered a work injury to his left hip on January 31, 2015 working for United Airlines in Philadelphia. United paid full benefits to Marconi under Pennsylvania law, but eventually Marconi brought two claim petitions in New Jersey seeking permanency benefits that were not available in Pennsylvania. One claim petition was for the accident in 2015 and the other was an occupational claim alleging work exposures from 1988 to the present. Mr. Marconi admitted he was not hired in New Jersey and worked most of his career in Philadelphia with only a brief period of employment at Dulles Airport.
United moved to dismiss both claim petitions for lack of jurisdiction in New Jersey. Marconi tried to build up his contacts with New Jersey as much as he could. He argued that his supervisor reported to a United employee at Newark’s Liberty International Airport. Marconi also contended that he himself would telephone United staff at Liberty International Airport once every couple of months for technical advice. He received training all over the world, including in Newark. He would fly from Newark whenever United assigned him to do “field service.” Marconi’s supervisor sometimes would drive to Liberty International Airport to retrieve parts there. United argued that these contacts with New Jersey were truly minimal.
The Judge of Compensation reviewed Professor Larson’s treatise on grounds for jurisdiction:
1. Place where the injury occurred;
2. Place of making the contract;
3. Place where the employment relation exists or is carried out;
4. Place where the industry is localized;
5. Place where the employee resides; or
6. Place whose statute the parties expressly adopted by contract.
The Judge of Compensation dismissed both claims, finding that residence in New Jersey alone has never been sufficient for jurisdiction. The Appellate Division emphatically agreed: “We conclude that residency alone is an insufficient basis to confer jurisdiction on the Division for extra-territorial workplace injuries.”
Petitioner argued on appeal that even if residency alone was insufficient, the fourth factor, namely “place where the industry is localized,” should have been sufficient for jurisdiction in conjunction with petitioner’s residency in New Jersey. There are only one or two published cases that have ever discussed the concept of “localization” of an industry, and Marconi provides the most complete analysis to date, citing cases from around the nation on this concept.
First the Court said that “in no state workers’ compensation scheme was localization alone sufficient to confer jurisdiction.” Professor Larson explained the rationale for localization of an industry as a criterion for jurisdiction: “The state in which the employer’s business is localized has a relevant interest in a compensable injury . . . since the obligation side of the compensation relation is as much a part of that relation as the benefit side, and since the burden of payment would ordinarily fall most directly on the employer and community where the industry is centered.” The Court seemed to accept Marconi’s argument that New Jersey was a place where United’s industry was localized, but it still rejected jurisdiction. That was the most interesting aspect of the case.
The Appellate Division in Marconi analyzed the concept of localization in terms of advancement of company interests. “It is the nature and frequency of the employee’s relationship with the localized presence of the employer that lends weight to the fourth Larson factor. In other words, in this case, did Marconi’s ‘duties to a substantial extent . . . implement the localized business’ of United in New Jersey?” (citations omitted). The Court answered its own question in the negative. “Essentially, nothing in the course of Marconi’s two-decade employment with United advanced the company’s localized interests in New Jersey. In these circumstances, although United maintained a localized business interest in Newark, New Jersey has no substantial interest in exercising its jurisdiction over the petitions.”
The Court explained that Marconi’s contacts with Liberty International were mainly to advance Marconi’s ability to perform his work in Philadelphia. “Even when Marconi used United’s facilities at Liberty International Airport, it was to serve United’s interest elsewhere around the country.”
After disposing of the traumatic claim petition for lack of jurisdiction, the Court then dealt briefly with the occupational claim petition, reminding practitioners that there is a different standard for jurisdiction in occupational claims from traumatic claims. The Court cited Williams v. Port Authority of New York & New Jersey, 175 N.J. 82 (2003) to make this point clear: “The petitioner must demonstrate either that (1) there was a period of work exposure in this State that was not insubstantial under the totality of circumstances and given the nature of the injury; (2) the period of exposure was not substantial but the materials were highly toxic; or (3) the disease for which compensation is sought was obvious or disclosed ‘by medical examination, work incapacity, or manifest loss of physical function’ while working in New Jersey.” Obviously petitioner could not meet this test because there was no work exposure in New Jersey.
In the opinion of this practitioner, the Marconi decision provides the most thorough analysis to date of the fourth criterion cited by Professor Larson in his treatise, namely “localization of business.” The Court flatly concludes that “localization of business” alone is insufficient for New Jersey jurisdiction. The implications of this statement are significant because there are hundreds of cases pending in New Jersey now involving medical claim petitions where the injured worker lives in New York, is hired in New York, and works in New York. The only connection to New Jersey in many of these claims is that a medical procedure occurred in New Jersey. Medical providers have filed countless claims of this nature seeking jurisdiction in New Jersey to argue that the New York fee schedule should not apply and ultimately seeking the right to additional reimbursements. The Appellate Division has yet to weigh in on these cases. When one of these MCP cases finally reaches the Appellate Division, one can expect that the analysis in Marconi will certainly be considered.
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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.
On July 12, 2019, Cousineau, Waldhauser & Kieselbach, P.A. presented its’ annual client seminar. Attendance was excellent. Natalie Lund organized and hosted the seminar. We thank Natalie for her excellent and hard work. The topics included interesting and helpful takes on: Arising out of and in the Course of, Dykhoff, PTSD, Surveillance, Caselaw Update, #MeToo in Mn, How to Make Rehabilitation Work, and Compensability Questions and Answers.
The reviews from our clients were spectacular. All of the topics and speakers were given top marks. We thank our clients and guests for such positive feedback. Our next seminar will be in 2020. We promise that the quality will remain the same. We will provide a seminar which is geared to our clients’ needs and as always will be informative, helpful and entertaining.
Teague Campbell attorneys Kyla Block and Melissa Woodard recently received a favorable decision from the Full Commission in a nuanced disability argument. Melissa argued the case before the Full Commission in February 2019 and the Commission’s Opinion and Award was filed July 2019. The claim involved a high-level employee at a production plant who sustained a compensable back injury, which necessitated a lumbar fusion in 2013. The employee was out of work for several months, then returned to work only to sustain a second back injury. The second injury also required surgery, and the employee never physically returned to work thereafter. The employee was able to do some work remotely throughout the course of the claim, and the employer continued paying the employee’s full salary until 2017. At the initial hearing, the plaintiff argued he was not disabled until he started earning lower wages. Under N.C.G.S. § 97-29, an injured employee is only entitled to 500 weeks of benefits unless he qualifies for extended benefits. Melissa and Kyla argued the plaintiff was disabled on the date of his first surgery, which was approximately 219 weeks before the plaintiff’s alleged first date of disability in 2017. The Full Commission found in favor of Defendants, deciding that despite the fact that plaintiff was paid his full salary, his actual capacity to earn wages on the open job market was diminished, so he was disabled under N.C.G.S. § 97-2 beginning in 2013 when he underwent the first lumbar fusion surgery.
Considering plaintiff’s high compensation rate, the 219 weeks defendants will not have to pay disability benefits will be significant savings for the carrier in this case. Plaintiff may appeal, but regardless, these facts will create an issue of first impression before the appellate courts in North Carolina, which will be important to the jurisprudence of our State’s workers’ compensation law.
By: Tracey Jones and Chris Stipes
The increasing trend of employers to provide on-site medical staff can have numerous benefits for both employees and employers. Due to convenience, employees may be more likely to utilize the on-site medical services, leading to quicker identification of health issues and easier management of health care needs and costs for both parties. Employees may spend less time away from work dealing with medical issues, leading to fewer insurance claims. Essentially, on-site medical staff seems to encourage prevention, which is an overall cheaper and more effective method of health care. Unfortunately, a recent Court of Appeals decision has created concern over liability exposure for the employer.
The Workers’ Compensation Act has frustrated North Carolina employers because there is no “fault base” analysis in cases, however, the Act has afforded North Carolina employers “limited” liability in cases and allows employers to calculate their exposures with a much needed accuracy that is hard to obtain in the civil liability arena.
This benefit has been strained in Jackson v. The Timken Co., a recent decision from the North Carolina Court of Appeals published in May, 2019. The Court allowed a Plaintiff in a denied workers’ compensation claim to bring an action in civil court, potentially spoiling the exclusive remedy doctrine.
Plaintiff suffered a stroke while at work. His supervisor noticed Plaintiff was having difficulty completing work tasks and escorted him to the occupational health nurse (with 41 years of experience) who completed a physical examination of Plaintiff. Plaintiff walked without assistance, responded appropriately to questions, exhibited no weakness, followed commands, and had no change in speech, balance or facial feature. Plaintiff’s wife was called to pick him up. Plaintiff collapsed in the parking lot of his primary care provider’s office and was rushed to the hospital by EMS. He survived, but suffered permanent injuries.
Plaintiff first filed a workers’ compensation claim with the Industrial Commission. The parties stipulated that each party was bound by and subject to the North Carolina Workers’ Compensation Act, and noted the Industrial Commission had subject matter jurisdiction. While Plaintiff was waiting for the Industrial Commission to issue a decision, Plaintiff filed a complaint in Gaston County Superior Court. The employee alleged he was negligently diagnosed and treated by the on-site nurse. The Deputy Commissioner issued an Order denying Plaintiff’s workers’ compensation claim because Plaintiff did not suffer a compensable injury by accident, and Plaintiff did not appeal the Order. Defendants then filed a Motion to Dismiss for lack of subject matter jurisdiction in the Superior Court, which was denied. Defendants appealed.
The main issue is whether the Superior Court had jurisdiction over Plaintiff’s claim when the claim has already been heard and denied by the Industrial Commission because it does not fall under the scope of the Act. Unfortunately, the Court held that if the Industrial Commission lacks exclusive jurisdiction to hear a claim that occurs in the course of one’s employment, a trial court does not err in asserting subject matter jurisdiction over the claim.
In upholding the Superior Court’s decision to assert subject matter jurisdiction over this case, the Court contradicted the Supreme Court’s decision that the Act “provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees.” Abernathy v. Consolidated Freightways Corp. of Delaware, 363 S.E.2d 559 (N.C. 1987). The Court tried to distinguish Abernathy on the basis that the Plaintiff alleged his co-worker was liable for breaching N.C.G.S. §90-21.12, our statute establishing a special duty for medical professionals when rendering care, and because, unlike in Abernathy, Plaintiff did not suffer a compensable injury by accident.
These weak distinctions do not help employers in North Carolina feel better about the Court’s analysis. Typically the only exception to the exclusive remedy doctrine happens when an employer’s conduct is intentional and substantially certain to cause serious injury or death, which is not the case here. The Court’s analysis on this question is concerning for two reasons. First, the Court seems to carve out an additional exception for claims asserted under the medical malpractice statute, which potentially increases exposures for employers that keep medical staff on site. Second, the Court seems to suggest that whenever a claim is denied by the Industrial Commission for not meeting the elements of a compensable claim, the Plaintiff has a second chance at a remedy by filing a civil suit. That seems to defeat the purpose of the exclusive remedy provision and opens the floodgate for ordinary workers’ compensation claims being heard in civil courts.
Risk Handling Tips: In light of this case, North Carolina employers must ask themselves whether having an occupational health professional on site to help their employees is worth the risk of being sued in civil court, which inevitably results in higher exposures. This Opinion was unanimous, but a Petition for Discretionary Review has been filed with the North Carolina Supreme Court.
On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees. There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.
With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service. The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related. There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought. The burden of proof does not rest on the firefighter to prove his or her case. Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence. To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.
For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers. The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. That organization is part of the World Health Organization.
The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer. Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection. Prostate cancer is the most common cancer in men, and the incidence climbs with age. There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma.
A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers. That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer. This section of the law specifically covers damage to reproductive organs. Again, there is a presumption of compensability, so the burden of proof shifts to the employer. But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances. In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers. However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.
Public safety workers are defined as follows:
1. Member, employee or officer of a paid, part paid or volunteer fire or police department;
2. State police member
3. Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;
4. Member of certain correctional facilities;
5. Advanced medical technicians of a first aid or rescue squad;
6. Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.
Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable. The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics.
The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce. Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.
In all of these new provisions, there is interesting language stating as follows: “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . . whether the occupational disease arose from the employment.” This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward. It is not clear if this means that an employer can test existing employees who have not brought claims.
Here are a number of questions that clients are already asking:
Question: What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired?
Answer: Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have. Readers can consult with the undersigned for advice on this questionnaire.
Question: How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?
Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens. The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records. This requirement also pertains to firefighters.
Question: What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion? Does the employer still have to document all such workers?
Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation. Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.
Question: Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?
Answer: There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.
Question: Is the provision relating to firefighters limited to existing and active employees?
Answer: No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years. This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service. Employers should therefore retain records of exposures for decades.
Question: What impact will these new occupational disease laws have on our workers’ compensation programs?
Answer: The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers. The Office has no idea how much the increase will be. In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts. More trials are likely because presumptions tilt the scales in the favor of workers.
Question: Does this new law apply to public safety workers and firefighters who have already retired?
Answer: This law is effective immediately, and the law does seem to apply to those who have already retired. There is no language restricting this law to existing employees of public entities. There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.
Question: How are public entities supposed to defend cancer claims of this nature?
Answer: Presumptions are very hard to overcome for employers. It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence. Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims. Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.
Question: Should employers retain board certified internists as experts in future cancer claims?
Answer: Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers. There will be a great deal of discussion of current thought by the International Agency for Research on Cancer. The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians. Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.
Question: Does this law eliminate the statute of limitations on occupational disease claims?
Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.
Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.
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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.
On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees. There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.
With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service. The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related. There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought. The burden of proof does not rest on the firefighter to prove his or her case. Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence. To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.
For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers. The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. That organization is part of the World Health Organization.
The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer. Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection. Prostate cancer is the most common cancer in men, and the incidence climbs with age. There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma.
A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers. That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer. This section of the law specifically covers damage to reproductive organs. Again, there is a presumption of compensability, so the burden of proof shifts to the employer. But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances. In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers. However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.
Public safety workers are defined as follows:
1. Member, employee or officer of a paid, part paid or volunteer fire or police department;
2. State police member
3. Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;
4. Member of certain correctional facilities;
5. Advanced medical technicians of a first aid or rescue squad;
6. Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.
Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable. The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics.
The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce. Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.
In all of these new provisions, there is interesting language stating as follows: “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . . whether the occupational disease arose from the employment.” This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward. It is not clear if this means that an employer can test existing employees who have not brought claims.
Here are a number of questions that clients are already asking:
Question: What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired?
Answer: Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have. Readers can consult with the undersigned for advice on this questionnaire.
Question: How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?
Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens. The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records. This requirement also pertains to firefighters.
Question: What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion? Does the employer still have to document all such workers?
Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation. Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.
Question: Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?
Answer: There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.
Question: Is the provision relating to firefighters limited to existing and active employees?
Answer: No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years. This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service. Employers should therefore retain records of exposures for decades.
Question: What impact will these new occupational disease laws have on our workers’ compensation programs?
Answer: The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers. The Office has no idea how much the increase will be. In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts. More trials are likely because presumptions tilt the scales in the favor of workers.
Question: Does this new law apply to public safety workers and firefighters who have already retired?
Answer: This law is effective immediately, and the law does seem to apply to those who have already retired. There is no language restricting this law to existing employees of public entities. There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.
Question: How are public entities supposed to defend cancer claims of this nature?
Answer: Presumptions are very hard to overcome for employers. It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence. Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims. Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.
Question: Should employers retain board certified internists as experts in future cancer claims?
Answer: Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers. There will be a great deal of discussion of current thought by the International Agency for Research on Cancer. The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians. Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.
Question: Does this law eliminate the statute of limitations on occupational disease claims?
Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.
Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.
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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.
Legal Update by Attorneys Alison Stewart andNick Cooling
A new electronic filing system has been implemented beginning July 22, 2019. The new system is known as Workers’ Compensation Electronic System, or WCES (pronounced “wick-ess”). The system will provide for electronic filing of all pleadings and documents with the Division and is intended to provide for more efficient scheduling of hearings, comprehensive case management, and greatly improved EDI transactions. New Administrative Rules have been passed and provide instructions for parties about how to appropriately navigate the new system. Those rules can be found at Iowa Administrative Code 876-2.5
Most of the changes will affect the practitioners, but Iowa Workers’ Compensation Insurance Carriers should be aware of the following:
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Peddicord Wharton Legislative 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. ©2019 Peddicord Wharton. All Rights Reserved.