On June 4, 2023, L.D. 53 (An Act to Ensure Accountability for Workplace Sexual Harassment and Sexual Assault by Removing Certain Intentional Torts from Workers’ Compensation Exemptions) was enacted into law.  This amendment to 39-A M.R.S.A. §104 provides that, notwithstanding exclusivity of the workers’ compensation remedy, an employee, supervisor, or officer or director of an employer may be individually liable for sexual harassment, sexual assault or an intentional tort related to sexual harassment or sexual assault.  The law provides that workers’ compensation remains the exclusive remedy for intentional torts with respect to an employer itself, including intentional torts related to sexual harassment or assault but now co-workers may be individually liable for such torts.  The provision also expressly states that it does not prohibit or limit an action alleging employment discrimination pursuant to the Maine Human Rights Act or Title VII of the federal Civil Rights Act of 1964, which seems obvious since Maine is a jurisdiction that has always allowed actions under the Maine Human Rights Act for sexual harassment or assault that arises out of the workplace, with recovery for non-pecuniary damages available to a successful claimant.

In practical terms, it is unclear what damages might be available to a claimant who successfully alleges sexual harassment or sexual assault from a co-worker, as presumably, co-workers would not have financial resources to pay any damages.

While there were not many changes to Florida’s workers’ compensation statute during our recent legislative session, there was one change which was significant and has already become law.  In 1994 Florida passed a statute providing for the use of an expert medical advisor (EMA) in contested workers’ compensation cases.  While there are a number of subsections which specify how the EMA process works, Fla. Stat. 440.13(9)(c) addressed when and how an EMA is to be appointed.

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The injured employee and the employer or carrier may agree on the health care provider to serve as an expert medical advisor. If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department’s list of certified expert medical advisors. If a certified medical advisor within the relevant medical specialty is unavailable, the judge of compensation claims shall appoint any otherwise qualified health care provider to serve as an expert medical advisor without obtaining the department’s certification. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims. The expert medical advisor appointed to conduct the evaluation shall have free and complete access to the medical records of the employee. An employee who fails to report to and cooperate with such evaluation forfeits entitlement to compensation during the period of failure to report or cooperate.

Over the course of almost 30 years the word “shall” in the statute was interpreted to make the appointment of an EMA mandatory giving the judge of compensation claims very little discretion. Appointments of an EMA have been most common in cases where authorization of a surgery was disputed, whether MMI was reached and applicable permanent restrictions.  A presumption of correctness is attached to the EMA’s opinion and the report of the EMA automatically comes into evidence.  The “clear and convincing” evidentiary standard was difficult to overcome despite many attorneys doing their best in deposing the EMA and extensively probing his or her opinions.  Because the parties rarely could agree on the appointment of an EMA the JCC was required to appoint one.  It often was a difficult chore if a specialist outside of orthopedics, neurology or neurosurgery was necessary.  It was also difficult to find a doctor in some of Florida’s more rural areas.

Effective May 25, 2023 the word “shall” was replaced with the word “may.”  This gives the JCC almost complete discretion to appoint an EMA in a disputed case.  Particular attention will be paid to when an EMA is requested and whether the medical issue is fairly routine as opposed to something arcane and unusual.  Because Florida’s workers’ compensation statute requires a final hearing to take place no later than 210 days after a petition is filed, fewer cases will now go past that deadline.  It is expected that there will likely be a dramatic drop in the number of EMA’s appointed by our JCC’s.

The Pennsylvania Supreme Court has issued two decisions recently impacting workers’ compensation in Pennsylvania.  In actuality, these cases actually deal with civil actions but involve interplay with the Pennsylvania Workers’ Compensation Act (“Act”). 

The first case, Franczyk v. The Home Depot, Inc., No. 11 WAP 2022, 2023 WL 2992700 (Pa. April 19, 2023), dealt with the Court finding that a claim for negligent investigation of an accident was barred by the exclusivity provision of the Act.  The Claimant was working at Home Depot when a customer brought a dog into the store, which bit the Claimant, who was ultimately diagnosed with cubital tunnel syndrome for which she underwent surgery. The claim was accepted as a compensable work injury.

The Employer did not allow the claimant to have any contact with the dog owner or witnesses and it did not obtain contact information from anyone. Accordingly, the Claimant could not bring a third-party action against the dog owner.  Thus, Home Depot was sued on the basis that its negligent investigation deprived her of the ability to pursue a third-party action.  Home Depot asserted immunity under the exclusivity provision of the Act. 

Summary judgement was survived at the trial court level and the Superior Court affirmed.  It felt the injury that was the basis of the lawsuit was separate from the incident which caused the work injury, which was the actual dog bite.  The Pennsylvania Supreme Court has now reversed and barred the suit based upon the exclusivity provision of the Act. 

The Court noted that even intentional misconduct by an employer does not trigger an exemption from the exclusivity provision. Poyser v. Newman & Co. (employer willfully ignored safety protcols); Kuney v. PMA (alleged bad faith in carrier handling claim caused emotional harm); and Santiago v. Pennsylvania National Mutual Ins. Co. (bad faith in settlement negotiations causing psychological harm).  The Claimant relied upon Martin v. Lancaster Battery Co., in which the Pennsylvania Supreme Court allowed a separate civil action where the employer withheld or altered blood toxicity testing results for the employees who dealt with lead.  This resulted in a deterioration of the claimant’s condition.  In that matter, the Court allowed a tort claim for fraudulent misrepresentation given the separate “aggravation” by withholding the information was an “injury unto itself” which was distinct and preventable.

The Court focused on whether there was “truly a separable injury” which they felt was not present here.  The ability to bring a third party suit was “inextricably intertwined” with the dog bite which caused the work injury. The Court noted that the Employer would need to defend the dog owner, in absentia, which is what the exclusivity provision is designed to prevent. 

Separately, in Alpini v. WCAB (Tinicum Township), No. 2 MAP 2022 (Pa. May 16, 2023), the Pennsylvania Supreme Court held that there was no workers’ compensation lien or subrogation where a dram shop claim arose from a motor vehicle accident. 

This case was not based solely upon the Act but rather was a case where the injured worker was also entitled to the payment of full salary continuation benefits concurrently under the Heart and Lung Act, which provides for the payment of full salary benefits to police officers and firefighters who are injured in the performance of their job duties.  The municipality also had a carrier who paid workers’ compensation benefits on account of the work injury.  In practice what typically occurs is the worker’ compensation check received by the Claimant is then reimbursed back to the municipality for any period of time that the Claimant receives the payment of full salary continuation benefits from the municipality under the Heart and Lung Act. 

Even though the carrier made payments under the Act, and there is a right to subrogation pursuant to Section 319 of the Act, 77 P.S. § 671, the carrier was denied subrogation on account of the Claimant’s receipt of benefits under the Heart and Lung Act.  This is due to the Court’s prior interpretations of a separate statute, the Motor Vehicle Financial Responsibility Law (MVFRL), specifically Section 1720 of this statue, which precludes subrogation against a third party recovery for a motor vehicle accident.  This law was changed by Act 44, which once again allowed for subrogation against motor vehicle accidents under the Act.  However, as this new statute did not specifically indicate it was repealing the anti-subrogation provision for Heart and Lung Benefits, this prohibition remained for such benefits, even though the MVFRL did not specifically indicate it applied to Heart and Lung Benefits. 

The Claimant was police officer who was injured on 04/17/11 when a drunk driver struck his patrol car.  In addition to suing the drunk driver, the Claimant also sued two tavern owners for violating the Dram Shop Act by serving a visibly intoxicated person. These third party actions settled and the carrier filed to seek subrogation, which was granted by the Workers’ Compensation Judge, which was affirmed by the Board, which remanded for calculation of the lien and how it was to be paid, and this was also affirmed by the Commonwealth Court.  However, the Pennsylvania Supreme Court has reversed in a majority opinion. 

The Court considered the statutory construction of Section 1720 of the MVFRL, which provides “[i]n actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to…benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719[.]” It determined that the lower court improperly conflated the phrase “arising out of” with the much narrower phrase “arising under.” The Supreme Court interpreted the statute to provide that an “action arises out of the maintenance or use of a motor vehicle” if the claimant’s judicial proceeding originates, stems, or results from the maintenance or use of a motor vehicle. Accordingly, the Court precluded subrogation. A request was filed for reconsideration, which was denied, so as to address the payment of medical benefits since the original decision tended to focus on the payment of wage loss and how the Claimant did not retain the workers’ compensation payment. 

When now Justice Brobson was on the Commonwealth Court, he authored a dissent in City of Philadelphia v. Hargraves/Frazier in which he noted that the anti-subrogation provision relative to Heart and Lung Benefits is based upon language in Section 1719(b) of the MVFRL.  However, when reviewing that particular language, which deals with “program, group contract or other arrangement”, he noted that this section appeared to be geared toward what are colloquially referred to as Blue Cross/Blue Shield health insurance plans and would not be applicable to benefits paid under the Heart and Lung Act.  The Supreme Court did not review this language and rather simply continued to apply the holdings of Bushta and Stemel, without getting into the issue of whether such cases were properly decided.

What hopefully will result in some change is Justice Wecht’s dissent in which he noted that the Court’s holding in Bushta should not be mechanically applied to simply find that Heart and Lung Benefits subsume workers’ compensation benefits. The Majority in Alpini appears to focus on the payments received simply from the Claimant’s perspective and finds that the workers’ compensation payments are “legally immaterial” apparently in terms of what the Claimant “receives.”  However, Justice Wecht  correctly noted that the legal fiction created that there is no compensation payable under the Workers’ Compensation Act is not the reality to the Workers’ Compensation Insurer who is making a payment of benefits on account of there being liability under the Workers’ Compensation Act.

He would treat municipalities that are insured for the purpose of workers’ compensation differently than those who are not.  However, this is really a distinction without a difference.  If there is a work-related injury, the Workers’ Compensation Act provides for the payment of “compensation payable” and Section 319 allows for subrogation to the extent of the compensation payable under Article III of the Act.  Justice Wecht points out that the statutory treatment relative to the interplay of the Workers’ Compensation Act, the Heart and Lung Act and the Motor Vehicle Financial Responsibility Law leads to all manner of confusion and warrants legislative correction. Presently, there is confusion as to whether the Claimant in a third party action is able to board damages in terms of the payment of benefits under the Workers’ Compensation Act or Heart and Lung Act.  While the anti-subrogation provision was created to keep down costs of auto insurance for drivers, now it may actually provide a benefit to the auto insurer by driving down the value of a recovery based upon a motor vehicle accident based upon there not being a right to subrogation. 

Hopefully this is a matter where the General Assembly can get involved and hear from both sides and try to come up with a solution that makes sense for everyone relative to the interplay of benefits under these Acts and specifies what are damages that can be plead and what subrogation rights exist relative to benefits paid under the Workers’ Compensation Act and Heart and Lung Act.

The Supreme Court has issued their opinion Kuciemba v. Victory Woodworks, Inc.  The 53 page opinion can be downloaded at https://www.courts.ca.gov/opinions/documents/S274191.PDF  This is the take home COVID case that has had so many of us on the edge of our seats, workers’ compensation and civil practitioners alike. 

In an opinion released July 6, 2023, the California Supreme Court ruled that:

1.)  If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer; and

2.)  An employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.

The Supreme Court opinion was in response to questions addressed to it by US Court of Appeals for the Ninth Circuit.  The Ninth Circuit asked that the Supreme Court address two questions concerning an employer’s liability when an employee’s spouse is injured by transmission of the virus that causes COVID-19.  This became known in legal circles as “take home COVID” liability.  These two questions were:

(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer?

(2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

The Supreme Court found that the answer to both questions was no.  As to the first question, the court found that workers' compensation exclusivity provisions do not bar a non-employee’s recovery for injuries that are not legally dependent upon an injury suffered by the employee.  As to the second question, the court found that it was foreseeable that an employer’s negligence in permitting the spread of COVID-19 will cause members of the employee’s household to contract the disease, but recognizing a duty of care in this context would impose an intolerable burden on employers and society in contravention of public policy.

The Kuciemba case was filed in Superior Court and was removed to Federal court.  The plaintiffs in this case relied on the take home COVID argument unsuccessfully at the trial level and the case was on appeal when the See’s Candies case was published.  The Kuciemba case had a similar fact pattern to See’s Candies, both cases pled liability based on a take home COVID theory, and both sets of defendant’s relied on a derivative injury defense.  The Ninth Circuit was addressing California law on take home COVID, so it requested that the Supreme Court answer the two above questions.

The take home COVID argument is basically that an employee claims that they became infected with COVID-19 at work and then took the infection home and infected their family members.  These family members would then file a civil suit in state or Federal court against the employer for negligence.  This argument has been tried many times in California and other states and seems to have been successful in only one case other than See’s Candies. 

The Derivative Injury Doctrine

The courts would generally hold that application of the derivative injury doctrine meant that the claim was barred by the workers’ compensation exclusive remedy rule.  As explained on page 5 of the opinion, “In general, workers’ compensation benefits provide the exclusive remedy for third party claims if the asserted claims are “collateral or derivative of” the employee’s workplace injury”.  Basically, a family member’s claim for an injury that derived from an employee’s workplace injury was barred by worker’s compensation exclusivity.  However, a family member’s claim of injury for their own independent injury was not barred, even if both injuries stemmed from the same negligent conduct of the employer. 

The Supreme Court in Kuciemba held that the employee’s spouse was not required to prove an injury to her spouse (the employee) in order to prove her negligence claim.  Rather, Mrs. Kuciemba merely need to show that her husband was exposed to the virus at work and carried it home to her.  It did not matter whether her husband (the employee) ever developed COVID-19 himself or had any cognizable injury from exposure to the virus.  Thus, the court held, the spouse’s negligence claim was not legally dependent on any actual injury to the employee.  The court reviewed several cases regarding the derivative injury doctrine and stated “We now clarify that, without more, a mere causal link between a third party’s personal injury and an employee’s injury is not sufficient to bring the third party’s claim within the scope of the derivative injury rule”. (p. 15)  The court went on to hold “The pertinent question is not whether an employee’s work-related injury was a “but for” link leading to the third party injury. Instead, the pertinent question is whether the plaintiff’s claim is logically or “legally dependent” on that employee injury”. (p. 17) Because the spouse’s negligence claim did not require that she allege or prove that employee suffered any injury, it was not barred by the derivative injury rule.

The Duty of Care Argument

The “general rule” of duty in California is established by Civil Code section 1714(a), which states in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

The Kuciemba plaintiffs argued that the employer had a duty of care to it’s employees and their households and that they violated this duty of care when, in violation of a public health order, the employer transferred employees who they had reason to believe had been exposed to the virus that caused COVID.  Mr. Kuciemba came in close contact with those employees, became infected with the virus, and passed it on to his wife.  The argument was that the employee became a vector of transmission to the wife by acquiring the virus at the workplace and bringing home the harmful substance that harmed his wife.

The court analyzed cases involving duty of care and the impact on the general public of finding a tort liability.  The court examined both the positive and the negative societal consequences of recognizing a tort duty. The court found that, imposing a duty of care on employers to prevent the spread of COVID-19 to employees’ household members would be a “floodgates” situation. “In addition to dire financial consequences for employers, and a possibly broader social impact, the potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system and, ultimately, the community”. (p. 44)  The court found that the burden to the employer and to the community weigh against imposing a duty of care and liability for its breach.

The court held “In sum, while the foreseeability factors and the policy factor of moral blame largely tilt in favor of finding a duty of care, the policy factors of preventing future harm and the anticipated burdens on defendants and the community weigh against imposing such a duty”. (p. 45)  They also stated “Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings. Although it is foreseeable that employees infected at work will carry the virus home and infect their loved ones, the dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services”. (p. 46)

Impact of this decision

This has been a closely watched decision by both workers’ compensation and civil counsel.  It has also had the business community on edge.  The Supreme Court has found that take home COVID is a valid legal theory.  However, it seems to be a pyrrhic victory for those bringing claims.  They cannot seek recovery under California workers’ compensation as they are not part of the employment bargain and the Supreme Court was very clear that take home COVID claims are a separate injury for the at home spouse and thus were not derivative of an employee’s claim.  There would have to be some very creative arguments to find workers’ compensation liability now.  They cannot assert a cause of action on which relief may be sought in civil court (state or federal) as the Supreme Court has found that there is no duty of care.

It will be interesting to see if workers’ compensation applicant attorneys or civil plaintiff’s attorneys are able to find a path to liability in take home COVID cases after this decision.

"In an opinion released 7/6/23, the California Supreme Court ruled that: (1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer; and (2) An employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members."

 www.courts.ca.gov/...

New York Issues Permanent Telehealth Regulations

On 7/11/23, new telehealth regulations went into effect in New York State. These regulations outline the circumstances in which injured workers in New York may receive telehealth services from a health care provider and the types of providers authorized to provide telehealth services. Notably missing from the proposed regulations are details on the method and manner by which employers and carriers may object to an injured worker’s use of telehealth services in circumstances where it may not be warranted.

The new permanent telehealth regulations are in Section 325-1.26 of Title 12 of the NYCRR. Telehealth was at one time limited to rural or remote communities; however, since the COVID-19 pandemic, telehealth has been more widely embraced. The New York Workers’ Compensation Board adopted emergency regulations during the pandemic to allow for expanded use of telehealth. The new permanent regulations do not simply make the old emergency regulations permanent. The emergency regulations provided more latitude to providers in the use of telehealth services. The new regulations limit the use of telehealth depending on the type of provider and the phase of the claimant’s injury.

Certain providers may not provide telehealth services at all. These include: chiropractors, acupuncturists, physical therapists, and occupational therapists. This makes sense, as the treatment modalities offered by these providers are “hands-on” and, presently, the best clinical practice for these providers involve in-person visits.

Physicians, podiatrists, psychologists, nurse practitioners, physician assistants, and licensed clinical social workers are permitted to provide telehealth services to claimant via two-way audio or audio and visual communication subject to limitations depending on the care provided and the phase of injury. Additionally, those providers using telehealth must be able to meet the claimant at the provider's office within a reasonable travel time and distance from the claimant's residence.

The regulations divide the phases of a claimant’s injury into acute/sub-acute, chronic, and maximum medical improvement (“MMI”). The acute/sub-acute phase of injury is defined as within the first three months following the date of injury. Use of telehealth during the acute/sub-acute phase is at the clinical discretion of the treating provider, except that at least every third visit must be in person. 

After three months from the date of injury is considered the “chronic” phase of injury under these regulations. During the chronic phase of injury, the provider is permitted to use telehealth at their discretion except that there must be an in person visit at least every three months or until the provider feels that the claimant has reached maximum medical improvement.

Once the treating provider feels that the claimant has reached MMI, further telehealth visits may be at the provider’s clinical discretion except that there must be an in-person visit by the providers at least annually.

Telehealth treatment for mental health conditions by psychologists and licensed clinical social workers are treated differently under these regulations. For mental health treatment, the only limitation is that the telehealth treatment be medically appropriate and permitted under the Medical Treatment Guidelines. Mental health treatment is not subject to the phase of injury limitations noted above for physicians, podiatrists, nurse practitioners, and physician assistants. The regulations state that remote mental health treatment should be limited to those situations where there is "no benefit" to in-person services. Additionally, treating mental health professional needs to document the reason for the use of remote services for each telehealth visit. There is no indication in the regulations as to what constitutes an adequate reason for use of telehealth services for mental health treatment.

The regulations define “medically appropriate for telehealth” as where an in-person physical examination of the claimant is not needed to assess the claimant’s clinical status, need for further diagnostic testing, appropriate treatment, or to determine causal relationship of level of disability. This section of the regulations (12 NYCRR 325-1.26(c)(1) and (2)) goes on to provide factors or parameters where an in-person physical examination may or may not be necessary but note that such factors should not be used by carriers or employers as the basis for a denial of services. This implies that employers and carriers have no recourse if the provider is using telehealth in a situation where it is not warranted. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth over an in-person exam.

Moreover, the factors that address where no in-person physical exam may be necessary, 12 NYCRR 325-1.26(c)(1)(i)–(viii), are vague. For example, 12 NYCRR 325-1.26(c)(1)(i), provides that telehealth could be appropriate for management of chronic conditions where the provider has previously conducted a medically appropriate and comprehensive in person assessment of the patient and condition and is fully familiar with the applicable medical history; however, factor (i) does not provide a timeframe for when this prior in person exam might have occurred or if the specific provider conducted this exam, i.e., another treatment provider in the same office conducted the in-person exam. Also, factor (viii) provides a catch-all scenario as prescribed in the Medical Treatment Guidelines or other related Board communications; however, it is unclear what this would mean in terms of supporting a telehealth visit over that of in person.

12 NYCRR 325-1.26(c)(2)(i)-(ix) provides for the factors that would indicate the necessity of a physical exam. Notably, factor (vi) focuses on an in-person exam to address degree of disability or range of motion. Degree of disability is a basic component of medical evidence submitted to the Board. Claimants in the temporary phase of disability are required to submit medical evidence regarding degree of disability every 90 days to maintain their entitlement to benefits. It is unclear how telehealth could be useful as factor (vi) acknowledges that degree of disability and range of motion should be addressed only in an in-person exam. Further, factor (ix) provides that although causal relationship should be addressed in an in-person exam, the provider could in theory ascribe causal relationship if the provider is able to articulate in the medical record why an in-person exam was not necessary to determine causal relationship. Causal relationship is routinely addressed in the acute phase of an injury. 12 NYCRR 325-1.26(c) provides that the absence or existence of these factors should not serve as a basis of a denial by carriers, self-insured employers, or third-party administrators, but causal relationship is a viable defense routinely raised by the carrier, self-insured employers, or third-party administrators. 12 NYCRR 325-1.26(c)(2)(ix) would seem indicate that the provider may now support causal relationship with a lesser burden of proof, i.e., not the physical exam findings, but some other factor in the medical record.

Nothing in the new regulations addresses when and how an employer or carrier might deny telehealth treatment that was rendered inappropriately. This would suggest that employers and carriers have no recourse if the provider is simply opting to use telehealth. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth versus an in-person exam.

The Board acknowledged the lack of guidance in an email sent on 7/13/23. That email, entitled “Telehealth Guidance” addressed the proper method for payers to object to treatment via telehealth, in instances where the payer believes the use of telehealth was inappropriate and inconsistent with the regulation. The email provides little relief for employers and carriers who want to ensure that providers are providing telehealth services consistent with the new regulations because the email states that the fact that medical treatment was provided via telehealth cannot be the sole reason for an objection to a medical bill. Rather, the employer or carrier should instead file an RFA-2, check box “K” and request a direction for future in-person visit in accordance with the regulation, and state why the visit should not be performed via telehealth.

Even after filing the request for further action, employers and carriers should not expect much help from the Board. This is because the email also indicated that the Board would not entertain C-8.1 objections from employers and carriers who object to telehealth treatment by providers who were previously directed to provide in-person treatment. Rather, the Board stated that such providers would be subject to “administrative action.”

Only in cases where a chiropractor, acupuncturist, physical therapist, or occupational therapist provides telehealth services would the Board entertain a C-8.1 objection from an employer or carrier. We do not expect that there will be many situations where this comes up.

Finally, the regulations state that Independent Medical Examinations (“IMEs”) may be conducted via telehealth when all parties of interest consent to a telehealth examination and where the IME is not offering an opinion on permanent impairment. This may provide an opportunity for employers and carriers to secure an IME on mental health claims where it is difficult to find a psychiatrist or psychologist in the claimant's home community.

With the permanent implementation of these regulations, telehealth is here to stay. Despite the numerous requirements for providers, there is no enforcement mechanism for employers or carriers to ensure compliance with these regulations. They can only rely on the Board's promise of "administrative action." At a minimum, employers and carriers should update their processes to ensure that any telehealth visit by a chiropractor, acupuncturist, physical therapist, or occupational therapist is objected to with a C-8.1. For other providers who use telehealth inconsistent with the new regulations, employers and carriers can file an RFA-2 and request a direction that the provider provide in-person visits in the future.

Challenge to Qualification of Medical Panel Rejected

 Frank Horning v. Labor Commission, Aeroscape and American Liberty Insurance.  2023 Ut. App 30 (April 6, 2023). Mr. Horning lost consciousness at work when a weed trimmer fell off a shelf striking him in the head. He complained of continuing psychological issues long after the accident. When his carrier cut off benefits, he requested a hearing. The ALJ relying on a medical panel report denied ongoing benefits. Mr. Horning challenged the qualifications of the medical panel. The ALJ and the Labor Commission also denied benefits. Horning appealed and on Appeal, the Utah Court of Appeals rejected Horning’s claim that the panel was not qualified based on the record which clearly indicated that both panel members specialized in the treatment of the disease or condition involved in the claim.

Apportioning Benefits Requires Proof of Aggravation

 Dirk W. Barker v. Labor Commission, Burrell Mining Products, and Zurich American Insurance Company of Illinois, 2023 Ut.App.31 (April 6, 2023). Mr. Barker, a longtime cigarette smoker, was exposed to welding fumes, fly ash, cement and foam concentrate at work for approximately 25 years. He was diagnosed with a chronic breathing disorder which prevented him from working. The ALJ required him to undergo an insurer’s exam without recording. The ALJ approved his application seeking permanent total disability benefits but reduced those benefits by 75% based on its finding that disorder was 75% attributable to non-industrial causes (ie smoking.) The Utah Appeals Board upheld those determinations and Barker appealed to the Utah Court of Appeals. The Court of Appeals held that under Utah R.Civ.P.35(a) the ALJ erred in ordering Barker to undergo an insurer’s exam without a recording. The Court of Appeals also held the Board erred in apportioning benefits among causes of his disease rather than causes of his disability. The Court explained its decision by pointing out that Barker’s disability was caused by only one disease: COPD with emphysema and where there was no evidence that his disease was aggravated by any other disease or that any other disease contributed to Barker’s disability, apportionment was not appropriate under Utah Code Ann. §34A-3-110 (3) or (4) of Utah’s apportionment statute.

Need for Cognitive Behavioral Therapy Affirmed

 Suzi Poyfair v. CR England, Indemnity Insurance Company of North America. 2023 Ut.App.40 (April 20, 2023). Suzi Poyfair suffered a work-related injury. The administrative law judge referred the case to a medical panel. The Panel opined that she was limited in her ability to remain at work, had decreased degree of flexibility, strength, and endurance. The panel recommended treatment options including cognitive behavioral therapy which it stated, “may be beneficial.” The Appeal Board rejected the Employer’s objections to use of the word “may”, indicating its recommendation was not made based on the standard of medical probability. The Court of Appeals affirmed the Appeals Board finding that when the report is reviewed “as a whole”, it supports the recommendation of cognitive behavioral therapy to a reasonable medical probability.

© Copyright 2023 by Ford G. Scalley, Scalley Reading Bates Hansen & Rasmussen, P.C.

Many clients are asking whether the new COLA calculation for workers at the maximum compensation rate adopted by the Alaska Supreme Court in the Roberge case will apply retroactively to the inception of a claim, will only apply going forward (prospective application), or whether there will be some intermediate limit placed on past benefits that can be claimed and awarded based on fairness. The Court in Roberge did not address that issue. The Supreme Court has the authority to determine whether a new rule should be applied retroactively or prospectively, but it would take litigation to reach that result. The application of Roberge is therefore an issue that can be legally challenged, and we expect the issue to be litigated.

When the Supreme Court altered the calculation of disability benefits under the Act in the past, it applied four factors to determine whether a new rule should be applied retroactively or only prospectively:

1)            Whether the holding either overrules prior law or decides an issue of first impression whose resolution was not anticipated;

2)            Whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application;

3)            The extent of reasonable reliance upon the old rule of law; and

4)            The effect on the administration of a retroactive application of the new rule of law.

Based on these factors as applied in other cases, we expect the Board and the Court to decide that Roberge will generally apply retroactively to any claims that are open to adjudication and/or preserved for appeal.

Still, each case is different and may present facts that support a limitation on retroactive application of Roberge. For example, if a compensation rate issue was raised and settled in a case, an adjustment will likely not be allowed. If a C&R covering indemnity benefits was done, claiming additional past disability benefits will also likely be prohibited. And if more than two years has passed since the last payment of benefits, the statute of limitations in section .105 of the Act might apply.

On the other hand, for workers or beneficiaries currently receiving undisputed PTD or death benefits, there is likely no statute of limitations running on a claim for increased weekly benefits and there is a significant risk that increased benefits will be awarded from the inception of those benefits. The Supreme Court would have to determine if it would be unfair to employers to impose increased liability going back many years and the Court could adopt a limit of some kind, but it would take litigation to reach that result.

We recommend a practical approach to the issue of retroactive application of Roberge: determine the exposure and assess if litigating the issue will be worthwhile. Settlement may be preferable, or voluntarily paying additional past benefits may be the best option in order to avoid legal cost exposures.

If you decide to challenge liability for retroactive benefits, the most conservative approach is a petition asking for a Board determination whether and how far back a compensation rate adjustment needs to be made. A more aggressive approach is to file a controversion notice on the basis that Roberge does not apply retroactively under the factors described above. Since the issue of retroactive application of the rule adopted in Roberge is a question of law, a controversion on that basis could be filed in good faith. The worker would have to decide whether to challenge the controversion. Ultimately the issue will have to be decided by the Alaska Supreme Court. 

In February, the Alaska Supreme Court issued a decision in Roberge v. ASRC in which it established a new method for applying the cost-of-living adjustment (COLA) under AS 23.30.175 for workers who are entitled to benefits at the maximum compensation rate. As a result, workers residing out-of-state who have been paid TTD benefits may be entitled to a higher compensation rate based on the new rule.

Prior to the Court’s decision, the rule as stated by the Appeals Commission was that employers and insurers would cap TTD/PTD benefits at the maximum compensation rate and then apply the applicable COLA adjustment to reduce the rate below the maximum. Using that method, a worker who was subject to COLA reductions would never receive the maximum Alaska rate where the cost of living was less than in Alaska.

However, in the Roberge case, the Supreme Court held that the Commission erred in its interpretation of the COLA statutes. The Court held that, for workers paid at the maximum compensation rate, employers and insurers must first apply the COLA adjustment to the “uncapped” TTD rate (the TTD rate that would apply if there was no maximum rate). If the COLA adjustment lowered the “uncapped” TTD rate below the maximum rate, that lower rate would apply. If the COLA adjustment did not lower the “uncapped” TTD rate below the maximum rate, the maximum rate would still apply, effectively eliminating the COLA.

This is best illustrated through an example:

A worker is injured on 9/20/21, is single with no dependents (S-1) and lives in Atlanta, Georgia after injury. The COLA rate for Atlanta is .6977. Gross weekly earnings equal $2,500.00. The board’s Benefit Calculator states that the spendable weekly wage (SWW) is $1,901.33 and the maximum TTD rate is $1,298.00. The Benefit Calculator does not state what the TTD rate would be if there was no maximum rate.

Prior formula: Based on GWE of $2,500.00, the maximum compensation rate of $1,298.00 applies per the board’s Benefit Calculator. The COLA for Atlanta of .6977 is applied to the maximum rate and reduces the TTD rate to $905.61 ($1,298 x .6977 = $905.61).

Revised formula under Roberge:

1)      For workers at the maximum TTD rate, determine the TTD rate as if there was no maximum rate (the “uncapped” TTD rate). In this example, based on a GWE of $2,500, the spendable weekly wage (SWW) would be $1,901.33 and the “uncapped” TTD rate would be $1,521.06 (80% of the SWW). The board’s Benefit Calculator provides the SWW but not the “uncapped” TTD rate. Multiply the SWW by .8 to get the “uncapped” TTD rate.

2)      Apply the COLA to the “uncapped” TTD rate. In this example, multiply $1,521.06 by .6977. The result is $1,061.24.

3)      Determine if the result from step 2 is above the maximum TTD rate for that year. If so, the maximum rate applies and no COLA is taken. If less than the maximum rate, the result from step 2 applies. In this example, the TTD rate of $1,061.24 from step 2 applies after the COLA.

In this example, the worker would receive $155.63 more per week in TTD benefits under the new formula compared to the prior COLA calculation method. The overall impact of this change is that a COLA might not apply in the case of a very high wage earner or may lead to a lower COLA adjustment than before. 

Be aware that this procedure is only necessary if the worker is at the maximum compensation rate prior to application of a COLA. If the board’s Benefit Calculator indicates that the TTD rate is less than the maximum before any COLA, this procedure need not be followed and the COLA should be calculated as usual.

ALSO BE AWARE THAT THIS NEW FORMULA WILL APPLY IN DEATH CASES WHERE THE MAXIMUM COMPENsATION RATE APPLIES.

In light of the Court’s ruling in Roberge, we recommend that you review all cases where the maximum TTD/PTD rate applies and where a COLA has been taken to determine if a rate adjustment is necessary. This will avoid unnecessary attorney’s fees and litigation costs. 

We issued a newsletter on 9/27/21 describing our view that a two-part causation test applies in Alaska to occupational diseases cases such as COVID-19 claims. We discussed that to be compensable, an occupational disease 1) must be caused by the conditions of the employment, and 2) the employment must create a risk of contracting the disease that is greater than that which generally prevails in employment and living conditions. Under this test, if work presents the same risk of contracting a disease as generally exists in employment and living conditions (e.g., co-worker spread of a common contagious disease), the disease is not an “occupational disease” for benefit purposes even if acquired at work.

Because this test was adopted in Alaska Supreme Court cases issued in 1966 and 1985 and has not been significantly discussed since then, it was unclear if the Board would follow that case law or strike out in a different direction. However, on January 13, 2023, the Board issued a decision adopting the above two-part legal test, denying compensability of a COVID-19 claim by an employee of Chugach Electric Company who alleged she contracted it from a co-worker. See, Cheryl Rapp v Chugach Electric Company, AWCB No 23-0004 (January 13, 2023).

In that case, Ms. Rapp and a co-worker were employed as customer service representatives and worked in proximity to each other in office cubicles. They did their work by telephone and did not have physical contact with the public. The co-worker, Jenny, exhibited signs of illness and on 8/4/21 tested positive for COVID. Ms. Rapp began to experience symptoms of COVID on 8/13/21, nine days after her last exposure to Jenny. She tested negative for COVID that day. Symptoms progressed and by 8/16, Ms. Rapp lost her sense of smell. She tested positive for COVID on 8/17. Ms. Rapp claimed about two weeks of TTD benefits and medical costs related to her bout of COVID. Medical care for her COVID infection was minimal, consisting of three visits to her regular doctor. Ms. Rapp has since fully recovered.

The Board denied the claim under both tests described above. Based on medical evidence from an IME physician, the Board concluded it was more probable than not that Ms. Rapp’s COVID was not contracted at work because of the delay between the last exposure and the onset of symptoms. The Board also found that even if contracted at work, the risk of contracting COVID was no greater for Ms. Rapp than the risk generally present in employment and living conditions at that time. That is, co-worker spread of diseases in that kind of employment setting is common, and there was nothing about Ms. Rapp’s work that elevated that risk above that experienced by workers in general.

We view this case as significant because of the Board’s recognition that the two-part causation test described above applies to communicable diseases such as COVID, especially the second test which requires that the risk of contracting the disease through work has to be “greater than that which generally prevails in employment and living conditions.” Under this test, a worker can contract a disease such as COVID from a co-worker, yet the disease would not be “occupational” for benefit purposes if the risk of contracting it was no greater than the risk that generally exists in similar employment settings and living conditions. Since COVID was a pandemic, the risk of contracting it generally existed in both employment settings and in living conditions.

Bear in mind that each case is different and must be evaluated based on the facts presented. COVID can be a compensable occupational disease for some workers and not others. Evaluating the risk in each employment setting will be important in order to determine the best course of action in a particular case.

Update On Requirement Of Kansas Work Comp Impairment Ratings Being Based On The AMA Guides To The Evaluation Of Permanent Impairment 6^th Ed. – Latest Word From Kansas Appellate Courts For 2023. This update follows the 2021 Kansas Supreme Court decision in Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021) and several Kansas Court of Appeals decisions following, interpreting, and applying Johnson.  On January 8, 2021, the Kansas Supreme Court issued a much-anticipated decision reversing an August 2018 decision of the Kansas Court of Appeals (56 Kan. App. 2d 232, 427 P.3^rd 996), that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment, for measuring permanent impairment of function of injured workers with general body disabilities under the Kansas Workers Compensation Act.  The Kansas Supreme Court held the language of K.S.A. 2019 Supp. § 44-510e(a)(2)(B) referencing the use of the AMA Guides 6th Ed. could reasonably be interpreted as a "guideline" rather than a "mandate."  Therefore, the high court found the statutory provision requiring use of the 6^th Ed. constitutional under section 18 of the Kansas Constitution Bill of Rights. The court stressed the statutory reference to the 6th Ed. did not alter the additional statutory requirement that any impairment rating must also be "established by competent medical evidence" which rendered sufficient the constitutionality of the statute as worded by the legislature when referencing the use of the 6^th Ed. in Kansas workers compensation cases.

The court went on to indicate that use of the 6^th Ed. is the starting point for a determination of permanent impairment under the statutory language for general body disability work injuries.  With this language, the Court opened the door for administrative law judges to consider use of other editions of the AMA Guides and perhaps even no edition of the AMA Guides, as long as the 6^th Ed. is at minimum a starting point.

The initial application of the Supreme Court’s Johnson decision by administrative law judges appeared to adopt the approach that Justice Stegall, writing for the Supreme Court in Johnson, delivered something for everyone in the Supreme Court’s Johnson decision.  For the employer and carrier side, the 6^th Ed. language in the statute was deemed to be constitutional and therefore retained as at least a starting point for an impairment rating analysis.  For the injured worker side, the decision is being interpreted as opening the door for formulations of rating opinions outside of the four corners of the 6^th Ed. of the AMA Guides, if the rating opinions also qualify under part-two of the legal test as “competent medical evidence.”

The statutory context of the Johnson issue of whether use of the 6^th Ed. was constitutional in relation to determining impairment for general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B).  In Kansas, general body disability injuries are considered the exception, and scheduled disabilities as listed in the statute are considered the general rule.  A follow up question after the Supreme Court’s Johnson decision was whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the requirement of using the AMA Guides 6^th Ed. in determining permanent impairment of function is constitutional, and both the starting and ending point for the analysis.  The statutory language mandating the use of the AMA Guides in K.S.A. 44-510e(a)(B) for scheduled disabilities is different than the language of K.S.A. 44-510d(b)(23) for general body disabilities.  The scheduled disability statute requires impairment of function related to a scheduled injury shall be determined using the 6^th Ed. if the impairment is contained therein.  The scheduled disability statute, K.S.A. 44-510d(b)(23), does not contain the phrase by "competent medical evidence" that the Johnson court cited in the general body disability statute.  The plain language of K.S.A. 44-510d(b)(23), the scheduled disability statute, requires the functional impairment to be based upon the 6^th Ed. There is no explicit requirement in that statutory language that the impairment rating be based upon any other criteria, including substantial competent medical evidence.

In Butler v. The Goodyear Tire and Rubber Company, OSCAR CS-00-0285-928 (WCAB May 2021) the Kansas Workers Compensation Appeals Board addressed this issue in the context of whether the plain language of the scheduled disability statute mandates the use of the AMA Guides 6^th Ed. for a shoulder injury.  The Appeals Board affirmed the ruling of the administrative law judge that the plain language of the scheduled injury statute is different than the plain language of the general body disability statute relied upon by the Johnson court.  That difference in the plain language of the scheduled disability statue was held to leave no room for the court to consider or apply any other AMA Guide edition other than the 6^th Ed. as required by the plain language of the statute.

Several notable Kansas Court of Appeals decisions in late 2021, early 2022 and 2023 illustrate that the question of whether the Johnson Court’s pronouncement that the AMA Guides 6^th Ed. is “just the starting point” is still somewhat up in the air regarding whether general body claims can be awarded impairment of function compensation based on any version of the AMA Guides other than just the Sixth Edition.

On October 1, 2021, the Kansas Supreme Court granted publication of the Court of Appeals decision in Zimero v. Tyson Fresh Meats, 61 Kan. App. 2d 1, 490 P.3d 86 (2021).  Zimero held that for a general body disability compensation claim, “any reference to the 4^th Edition for injuries occurring after January 1, 2015, is irrelevant.  The Court of Appeals rejected claimant’s argument holding that “Parties and courts do not choose between the 4^th Edition or the 6^th Edition.  The 6^th Edition is statutorily required.”

Next, on December 3, 2021, a separate panel of the Kansas Court of Appeals issued an unpublished opinion in Morris v. Shilling Construction Co., Inc., No. 123,297, 2021 WL 5751704 (Kansas Court of Appeals unpublished opinion filed Dec. 3, 2021).  The Morris opinion which appeared to affirm the Zimero position that the Supreme Court decision in Johnson while requiring that the starting point being use of the 6^th Edition and then using competent medical evidence to determine the compensable impairment, does not leave room for use of the 4^th Edition which the legislature expressly removed and replaced with the now required AMA Guides 6^th Edition.

Then on January 28, 2022, yet another panel of the Kansas Court of Appeals issued its published opinion in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d 283 (2022) seeming to be critical of an Appeals Board decision that did not appear to consider medical evidence which was based on the AMA Guides 4^th Edition when awarding permanent impairment of function compensation.  Zimero clearly holds that the 4^th Edition can no longer be used to determine permanent impairment while Garcia appears to hold that not considering the 4^th Edition may be reversable error.

Th most recent Kansas Court of Appeals application of the Johnson court two-part test following the published Court of Appeals decision in Garcia is the unpublished decision issued by a three-judge panel of the Court of Appeals on February 24, 2023, in Ortega v. Encore Rehabilitation Services LLC, No. 124,824 (Kan App 2023) (unpublished opinion).  In Ortega, the Court of Appeals followed part-one of Justice Stegall’s two-part test and held that it must, under Johnson, “start with the AMA Guides 6^th Ed.”  Under part-two of the Johnson test, the Ortega majority held that other competent medical evidence supported that the 6^th Ed. rating should be more heavily weighted over the claimant’s expert 4^th Ed. rating opinion.  In short, the Ortega majority more closely followed the Zimero approach but without stating that the 4^th Ed. can no longer be considered, as Zimero held.  A dissenting opinion in Ortega articulated that the case should be remanded back for additional medical evidence for a re-evaluation of the “competent medical evidence” part of the two-part legal test.

The bottom line as of 2023 is that for general body disability claims Kansas law requires that Justice Stegall’s Johnson two-part test is still controlling and in effect, and all impairment rating opinions must: 1) start by using the AMA Guides 6^th Ed.; and 2) to the extent there is deviation from the AMA Guides 6^th Ed., the impairment rating opinion must satisfy part-two of the legal test that for any medical expert impairment rating opinion not using the AMA Guides 6^th Ed., that opinion must be explained under the “competent medical evidence” prong of the test.  As a practical matter for parties currently in disability compensation litigation in general body disability claims, this situation means that it is likely medical rating opinion evidence which uses other editions of the AMA Guides, other than the 6^th Edition, will not be automatically excluded (as Zimero seemed to hold), but can be attacked factually using the “competent medical evidence” prong of the two-part test.  The practical effect of this for parties in litigation is it will likely increase the cost and scope of workers’ compensation final award litigation in Kansas.

The bottom line as of 2023 for scheduled disability claims in Kansas, is that the rating opinions must be based upon the AMA Guides 6^th Ed. or the party risks that the rating opinions will not be considered by the court in issuing a disability compensation award.

2023 Kansas Work Comp Legislative Update.  There were no substantive Kansas work comp legislative changes of import in 2023 to the Kansas Workers Compensation Act.

2023 Rates Update.  The maximum weekly indemnity benefit rate increased to $804.00, effective for accidents occurring 7/1/2023 through 6/30/2024, based upon annual indexing to the state average weekly wage.  Likewise for the same period, the minimum weekly benefit rate for fatalities increased to $536.00.   Effective for medical travel after July 1, 2023, the medical mileage reimbursement rate increased from $.585 cents per mile to $.655 cents per mile.

© Copyright 2023 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.