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2022 An Overview of Workers’ Compensation Emerging Issues Analysis

November 14, 2022 (32 min read)

By Thomas A. Robinson, Co-Editor-in-Chief, Workers’ Compensation Emerging Issues Analysis (LexisNexis)

One of the significant defining events in the more than 100-year history of American workers’ compensation world was the creation 50 years ago of the National Commission on State Workmen’s [sic] Compensation Laws. The Commission met within the context of a myriad of competing interests, with some desiring a “nationalization” of the workers’ compensation system, others fighting for state-run systems that might be tweaked for local competitive advantage, some arguing for carve-outs for industries with significant union representation, and others who desired a more “tort-like” structure among the various American jurisdictions.

In spite of the significant challenges that the Commission faced, it produced a seminal report that still echoes today. The report is viewed by many as an important barometer for judging the “success” of state workers’ compensation laws. It continues to be fodder for those who desire a more streamlined, “equitable” framework for handling work-related injuries and diseases. Because of the significance of the 1972 Commission and its enduring legacy, we are pleased to offer this year’s edition of the Workers’ Compensation Emerging Issues Analysis. As outlined below, a number of articles this year highlight the Commission’s work and the challenges that still face our industry.[Note: All section numbers below refer to sections in the book.]

Part I. Expert Analysis and Commentary

As has been the practice with previous editions, we have assembled a number of timely and incisive articles by nationally known legal experts and commentators on a host of interesting topics.

1972 National Commission Report on State Workers’ Compensation Programs

In § 2 of this latest annual volume, we are particularly pleased and privileged to include an extensive written interview of John F. Burton, Jr., renowned expert in the field of workers’ compensation, who chaired the historic 1972 National Commission on State Workmen’s Compensation Laws. The interview, conducted by the Honorable Susan V. Hamilton, former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board, offers Burton’s incisive and candid assessment, not only of the National Commission’s original Report, but on the current status of the American scheme for providing workers’ compensation benefits and medical benefits to injured employees and those who have contracted compensable occupational diseases. Burton allows that, if the National Commission were reconstituted today, it would come to the same conclusion that it did 50 years ago—that state workers’ compensation laws are in general neither adequate nor equitable.

Burton contrasts wage-loss benefit systems with the sorts of systems that rely primarily on impairment ratings. He provides important historical context in the important debate during the 1970s that sought to determine if the state workers’ compensation acts should be jettisoned for a federal standard. He calls into question a popularly-held sentiment—that employers freely move from states with high workers’ compensation costs to states with low costs. He indicates there is little evidence that the phenomenon has occurred. Burton discusses the contentious issues surrounding the new “gig” economy, problems related to misclassification of workers, and the difficulties many states have encountered in handling COVID-19 claims.

In “The ‘Grand Bargain’ of Workers’ Compensation: Not Such a Good Deal?” [§ 3], Roger Rabb reviews a recent law journal article by Michael C. Duff, Professor of Law, Saint Louis University School of Law, “Fifty More Years of Ineffable Quo? Workers’ Compensation and the Right to Personal Security,” 111 Kentucky L. J. ___ (2022). As explained by Rabb, Duff argues that modern workers’ compensation benefits are woefully inadequate and often measured arbitrarily, that they often fail to protect workers’ rights to personal security, and that a number of state legislatures appear intent upon their “race to the bottom.”

In § 4, we round out our discussion of the 1972 National Commission by reprinting an article written ten years ago by our colleague, Karen C. Yotis, entitled “Liberal Republicans, Consensus Politics, and a Fluke: The WILG Looks Back on 40 Years of Worker Advocacy.” The occasion of the article was the 40th anniversary of the National Commission, commemorated in Chicago that year in a meeting of the Workers’ Injury Law & Advocacy Group (WILG). We have included this article because it is so well juxtaposed against Burton’s written interview, already noted above [see § 2].

COVID-19 Pandemic Issues

In “Should Losses Caused by COVID-19 Be Covered Through the Workers’ Compensation System?” [§ 5], Susan Hamilton discusses a recent RAND study that examines the advantages and disadvantages of expanding workers’ compensation to cover costs for workers required to work outside the home who contract COVID-19. The RAND study looked particularly at those states which enacted special presumptions of compensability favoring some types of employees. The study addresses the impact of COVID-19 presumptions on employers and insurers, offering some suggestions to mitigate the negative effects associated with the incorporation of the claims into the workers’ compensation system.

Hamilton continues her COVID-19 discussion with an examination of several other RAND studies. Her piece, entitled “RAND Study Sheds Light on COVID-19’s Impact on California Workers’ Compensation System” [§ 6], examines the pandemic’s impact in California, particularly in light of the broad presumption of compensability that the Golden State initiated for its workforce. That discussion is complemented by her review of a separate RAND study in an article entitled “The Million Dollar Question on COVID-19 Presumptions: RAND’s Latest Study Expected to Guide the California Legislature” [§ 7]. Lastly, her piece, entitled “Study on COVID-19’s Impact on Drug Overdose Deaths by Occupational Is a Cause for Alarm” [§ 8], examines the possible connections between COVID-19 and the rise in overdose deaths around our nation.

In my article, entitled “New Study Confirms Age as Strongest Risk Factor Associated with Increased Workers’ Comp Costs Related to COVID-19 Claims” [§ 9], I highlight the findings of a recent study published in the Journal of Occupational and Environmental Medicine that appears to confirm anecdotal evidence that an employee’s age at the time of COVID-19 infection is the major factor associated with prolonged impairment and high costs of COVID-19 workers’ compensation claims.

In § 10, Roger Rabb reviews a study published in the American Journal of Industrial Medicine that examines the safety hurdles faced by “digital platform” drivers, such as those who work with Lyft and Uber, as they maneuver through the COVID-19 landscape [see his piece, “Gig Drivers in the Era of COVID: How Safe Does it Feel Behind the Wheel?”].

Just when many of us thought it might be safe to return to the workplace, we are beginning to see studies on so-called “Long COVID” in the workplace. Rabb adds insightful discussion of that phenomenon in his article entitled “Dealing with Long COVID in the Workplace: A Work in Progress?” [§ 11].

Other Emerging Issues

One of the recommendations of the 1972 National Commission was that states remove limits on the payment of benefits for permanent total disability or death. Characterizing the limits as “arbitrary,” the Commission recommended benefits be paid “for the duration of the worker’s disability or for life and, in case of death, should be paid to a widow or widower for life or until remarriage.” North Carolina attorneys, Elizabeth Ligon and Logan Shipman, offer an interesting look at the state’s extended benefits cap in their piece entitled “An Historical Analysis of North Carolina’s Extended Benefits Cap and Potential Constitutional Challenges to N.C. Gen. Stat. § 97-29” [§ 12]. Readers should not view this article as overly “state-centric,” as the issues and arguments discussed therein are common to a number of other jurisdictions.

I’m happy to include my annual catalog of bizarre fact patterns in workers’ compensation cases in an article entitled “The Top 10 Bizarre Workers’ Comp Cases for 2021” [§ 13].

One of the hottest issues in the workers’ compensation world relates to the reimbursement of medical marijuana. In § 14, Roger Rabb provides us with the current landscape in his piece, “Workers’ Compensation Reimbursement for Medical Marijuana Usage Reviewed.”

Issues often surface in California before moving to other jurisdictions. Such is the case with professional employer organizations (“PEOs”), companies that hire out employees to specific companies or clients to perform work at the customer or client location. Disputes can arise as to which entity is the “employer.” Whose work is being done? How should insurance coverage be structured? Prolific legal expert, now Presiding Workers’ Compensation Judge Robert G. Rassp, takes on these issues in his thorough article, found in § 15, entitled “California PEOs: How to Prosecute and Defend Cases Involving Employee Leasing Agreements.”

Susan Hamilton takes on two other California issues that have relevance well beyond that state’s borders in her articles: “Earnings Losses and Benefit Adequacy in California’s Workers’ Compensation System” [§ 16] and “First Responder PTSD Presumption: What RAND Reveals About Its Import and Effectiveness,” [§ 17].

Part II. State-by-State Legislative & Case Survey; Canada

As is our practice in past years, Part II offers a state-by-state and Canadian rundown on important workers’ compensation legislation and other developments during the past year. Part II also contains spotlight case decisions from many jurisdictions. Important state-specific updates include:

  • Alaska: Following the November 2020 expiration of the presumption of compensability favoring first responders exposed to COVID-19, there have been no decisions on the issue that have reached the appellate courts. Generally speaking, a claimant will need to show that the exposure to COVID-19 qualifies as an “occupational disease” under Alaska Stat. § 23.30.395(24).
  • Arizona: The Legislature passed SB 1451, strengthening the presumption that a firefighter’s cancer diagnosis is work-related. The provision also eliminates the requirement that firefighters must prove exposure to a known carcinogen reasonably related to cancer. It also raises the standard necessary to rebut a presumption to the higher standard of clear and convincing evidence. The Legislature passed S.B. 1403, as well. Effective September 24, 2022, the provision provides that if an insurance carrier or self-insured employer receives notification of an injury from an employee who intends to file a claim for workers’ compensation, the carrier or self-insured employer must forward the written notification of the injury and intended claim for compensation to the commission within seven business days and inform the employee of the requirement to file a claim with the ICA. Failure to do so may result in waiver of the one-year statute of limitations under A.R.S. 23-1061(A).
  • California: The California Workers’ Compensation Institute (CWCI) issued a report in September 2021 finding that COVID-19 was the leading cause of job-related death claims in 2020, accounting for more than 55% of workers' compensation death claims. The report determined that COVID-19 accounted for 866 out of 1,563 death claims. While the report also notes a steady decline in COVID-related death claims through the first half of 2021, COVID-19 accounted for a staggering 82 percent of death claims (166 out of the 202 claims filed).
  • Colorado: Colorado Rev. Stat. § 8-43-102 was amended to extend the employee notice period to 10 days (rather than four days). The notice requirements are tolled if the employer fails to display the required workers’ compensation notices. They are also tolled if the employer fails to provide written notice pursuant to 8-43-102(1)(b). The penalty provision concerning loss of compensation for failing to report an injury has been removed if the employer had actual notice of the injury or the employee had good cause for not reporting the injury in writing. The statutory revisions also require the employer to put the date and time documenting receipt of written notice of an injury and provide the date and time stamped copy to the injured worker within seven days after receipt of the notice.
  • Delaware: Department of Labor, Secretary of Labor, Karryl Hubbard, announced that the average weekly wage for the calendar year 2022 is $1,234.04. Based on that weekly wage figure, the maximum weekly workers’ compensation rate will be $822.70. The minimum workers’ compensation rate will be $274.24.
  • District of Columbia: Historically, an injured worker may not receive any workers’ compensation benefits in D.C. if the worker received benefits for the same accidental injury or death in another state. However, on June 6, 2022, legislation permitting an employee’s access to workers’ compensation benefits in D.C., even if the injured worker has applied for and received benefits in another state, was put forth on an emergency basis. The support for the legislation came from arguments that injured workers were unfairly prevented from accessing the full compensation and benefits since workers’ compensation laws in neighboring states (Maryland and Virginia) were less favorable to the injured workers than in D.C. The legislation was ratified by Mayor Muriel Bowser on June 7, 2022, and will expire on September 26, 2022. See District of Columbia Council Resolution PR24-0783: Parity in Workers’ Compensation Recovery Emergency Declaration Resolution of 2022.
  • Florida: Cessation of operations and the consolidation of four OJCC offices was announced. Specifically, Gainesville was consolidated to Jacksonville, Orlando, and Tallahassee. Lakeland was consolidated to Sarasota and Tampa. Melbourne was consolidated to Daytona Beach and West Palm Beach. Port St. Lucie consolidated to Miami and West Palm Beach. With motion hearings and mediations now being widely conducted by phone or virtually, the disruption is expected to be minimal.
  • Georgia: This year’s legislative session brought about little substantive change. One anticipated change has been seen, however, in the newly established caps for TTD, TPD, PPD and the maximums for spousal dependency benefits where the surviving spouse is the sole primary beneficiary. The new established caps apply only to dates of accident on and after July 1, 2022. The new maximum rates for indemnity are as follows: TTD goes from a maximum of $675 per week to $725, TPD goes from a maximum of $450 per week to $483, and PPD goes from a maximum of $675 per week to $725 due to the above changes in TTD rates. Also effective July 1, 2022, is a change in the maximum benefit payable to a surviving spouse with no other dependents. This figure goes from a maximum cap of $270,000.00 to $290,000.00 for dates of accident on or after July 1.
  • Illinois: The effort to extend the rebuttable presumption under Section 1(g), in favor of finding COVID-19 exposures work-related beyond June 31, 2021, failed. The rebuttable presumption in favor of finding COVID-19 exposures as work related expired June 31, 2021. There have been no COVID-19 cases to reach the Illinois appellate courts. There are, however, a few Illinois Workers’ Compensation Commission decisions regarding same. Most COVID-19 cases resulting in lost time or limited medical care have been settled for payment of lost time, medical expenses and, in some cases, a very small percentage loss of use of an arm. The minimum rate for permanency after January 15, 2022, depending upon the number of dependents, now ranges from $320.00 for a single person, and $480.00 for someone having four or more dependents. The maximum rate for permanency is presently $937.11. The minimum temporary total disability (TTD) rate is the same as the minimum permanency rate. The TTD or permanency rate can never exceed the person’s actual average weekly wage.
  • Indiana:C. 22-3-3-3, effective July 1, 2022, now confirms the two-year period within which an Application for Adjustment of Claim must be filed to begin running on the last day for compensation was paid after the occurrence of an accident for which compensation is paid as temporary total or temporary partial disability benefits. The Act was also amended to increase temporary total disability and benefits for payment of permanent partial impairment beginning July 1, 2023, with regular 3% increases through 2026.
  • Iowa: Governor Reynolds signed H.F. 2411 in law on June 15, 2022. The legislation changes the prosthetic allotment for workers injured on the job. Prior to the bill, injured workers were allowed one permanent prosthetic over their lifetime. When a worker is injured in a compensable injury while employed, the employer is now responsible for replacement prosthetics. Injured workers are now eligible for a replacement permanent prosthetic if the existing prosthetic is damaged or made unusable by circumstance arising out of and in the course of employment. They are eligible for this replacement whether or not the artificial member was previously provided by the employer. The replacement of the prosthetic device is now included in an employer’s obligation to provide reasonable medical care for employees injured at work as required by Iowa Code section 85.27. On another matter, on August 11, 2022, the Iowa Workers’ Compensation Commissioner entered an Order stating that after October 28, 2022, all workers’ compensation proceedings before the Agency will be held virtually, except upon motion by a party where good cause can be shown.
  • Kansas: There were no substantive Kansas workers’ compensation legislative changes of import in 2022. The maximum weekly indemnity benefit rate increased to $765.00, effective 7/1/2022 through 6/30/2023, based upon annual indexing to the state average weekly wage. Effective July 1, 2022, the medical mileage reimbursement rate increased from $.56 cents per mile to $.585 cents per mile.
  • Maine: The Board has worked primarily remotely since March of 2020 and that is continuing to be the trend, with TEAMs or ZOOM hearings and telephonic, remote mediation continuing to be the primary manner of disposing of contested claims. The Board continued to monitor First Reports of Injury alleging COVID-19 or reaction to a vaccine, with 2,549 such FROI filed in 2021, the most recent year for which statistics are available. In 2021, non-COVID-19 FROI were down 4% as compared to 2019, but the total number of FROI filed in 2021 was 20% greater than in 2019.
  • Maryland: Effective October 18, 2021, Code of Maryland Regulations (COMAR) was revised to remove the $125.00 cap on the reimbursement of reasonable expenses and costs associated with a missed medical examination. The amendment allows for a party to seek credit or reimbursement for the entire amount of no-show fees, or other reasonable expenses and costs incurred due to a missed exam. The reimbursement amount is now subject to the presiding Commissioner’s discretion.
  • Massachusetts: The Department of Industrial Accidents remains in virtual mode for conciliations, conferences and lump sums with only hearings held in-person. An additional layer has been added post-Covid to hearing preparation. The parties are now charged with the responsibility of completing a Pre-Hearing Memorandum spelling out the issues, defenses and claims prior to the scheduling of a pre-hearing status conference. While there have not been any statutory changes, case law from the Reviewing Board has clarified that a lump sum settlement is analogous to a final judgement.
  • Michigan: 2022 marked the end of the presumption of compensability for COVID-19 diagnoses in certain fields of employment, and a major overhaul of the Board of Magistrates Rules that dictate practice in the courtroom was adopted in December 2021. The new Agency rules covering the definition of courtroom appearances reflect some of these changes in a post-Covid landscape. Rule 1(b) states that an appearance in court at the Michigan Workers’ Disability Compensation Agency can include participation “in person, or by telephone, video conference, or other electronic means.” This is further supported by the new Board of Magistrates rules, which allow “appearances” to take place either remotely or in person under Rule 5 and Rule 5(2). It should always be emphasized, however, that the rules state that the parties who seek to appear remotely should obtain permission in advance of the hearing from the Magistrate. From experience, it is important to note that the allowance of remote appearances is within the discretion of the Magistrate assigned to the case and can certainly change from courtroom to courtroom. It is important to discuss the specific case with your attorney to determine whether an in person hearing or remote hearing is necessary.
  • New Hampshire: On June 21, 2021, the presumption that First Responders testing positive for COVID acquired the disease through work, expired. Accordingly, the compensability analysis is now the same for all employees and is the same as in any other workers’ compensation claim. Claimants must prove their COVID diagnosis arose out of and in the course of employment. COVID-19 has generally been treated by the Department of Labor as a “neutral risk.” Claimants must therefore prove their work presented a greater risk than that to which the general public is exposed.
  • New York: At the close of 2021, Governor Hochul signed three significant bills into law. The first amended WCL §24 enacted, effective 1/1/23, a schedule of Attorney Fees which the Board generally must approve as liens on awards. For the most part, the fees amount to 15% of new awards over prior payments. Benefits allocated toward future medical expenses in §32 settlements are not to be included in calculation of the fee. The second amended §26-a requires the Uninsured Employers Fund (UEF) to pay if the Board is unable to identify a responsible insurance carrier within 30 days of filing a new claim until the responsible carrier is determined. Arguably, UEF is barred from controverting the claim on basic issues of compensability. The third bill, universally applauded by attorneys, adds a new WCL §23-a to provide that “mistake, omission, defect or other irregularity” in the Board required coversheet accompanying Applications for Board Review and Rebuttals shall not be grounds for denial of such Application for Board Review or Rebuttal. The Board is to permit correction of such mistakes, omissions, defects and/or irregularities within 20 days of notice of same by the Board or disregard such defects “if a substantial right of either party is not prejudiced.” This legislation relieves the situation that developed since 2018 wherein the Board was denying hundreds of appeals without considering the merits simply because of technical deficiencies in completing the Board mandated coversheets.
  • Ohio: On June 29, 2021, Governor Mike DeWine signed into law the 2022-23 budget which enacted some changes to Ohio workers’ compensation law, including: (1) requiring claimants in receipt of salary continuation to wait 26 weeks after their last payment to file an application for permanent partial disability compensation (“PPD”); (2) requiring claimants who have previously been denied permanent total disability (“PTD”) to show new and changed circumstances before re-applying for the benefit; and (3) reducing the statute of limitations for an occupational disease claim from two years to one year from the date of disability due to the disease began. The budget bill also resulted in the return to in-person hearings in Ohio that may have come earlier than some expected. The Ohio Industrial Commission returned to in-person hearings on July 6, 2021, but the parties now have the option to call rather than attend physically (this was always an option for injured workers, but rarely utilized). Parties who opt not to attend in person must waive their right to an in-person hearing. The waiver is not necessary for parties represented by attorneys or non-attorney representative attending in person. Otherwise, a waiver is required, either orally (if the party is represented by an attorney appearing remotely) or in writing (if the party is represented by a non-attorney representative appearing remotely). Governor Mike DeWine signed into law House Bill 447 on June 24, 2022, which amended Ohio Revised Code §4123.01(C) to exclude from the definition of “injury” any “[I]njury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home that is separate and distinct from the location of the employer[.]” H.B. 447 does permit, however, an injury or disability sustained at the home to be compensable under Ohio workers’ compensation law if all of the following three factors are met: (1) The employee’s injury or disability arises out of the employee’s employment; (2) The employee’s injury or disability was caused by a special hazard of the employee’s employment activity; and (3) The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.
  • Oregon: HB 4138 makes significant changes to Oregon’s Workers’ Compensation Act, particularly regarding temporary disability payments with a focus on retroactive benefits and overpayments. These changes will apply to workers’ compensation claims that “exist on, or arise on or after, January 1, 2024.”
  • Pennsylvania: The most significant regulatory changes relative to appeals to the Workers’ Compensation Appeal Board, which is the first stage of an appeal from a Decision and Order issued by a Workers’ Compensation Judge, have been enacted. These new regulations provide for oral argument to be convened via teleconference, which was in response to the pandemic. The Board will still convene hearings in person, when necessary, but is authorized to convene the arguments via electronic means. Another significant change, effective as of 07/08/22, is that the Board will be a “hot court” in terms of having briefs filed in advance of oral argument so that the Commissioners will be in a position to question counsel. Briefs are to be filed by both parties in advance of oral argument, which have never been the case before the Board. Previously, the moving party would submit their brief at oral argument, or sometimes ask for an extension at argument, with the responding party to submit its brief 30 days thereafter. Thus, the Commissioners were learning of the case for the first time at oral argument, whereas now they will come to the argument prepared and be able to ask any questions or make inquiries of counsel as to their respective positions.
  • Tennessee: Effective July 1, 2022, Tennessee added leukemia and testicular cancer to the list of cancers (Non-Hodgkin’s Lymphoma cancer, colon cancer, skin cancer, and multiple myeloma cancer) for which a presumption is created that certain conditions or impairments of full-time firefighters arose out of employment, unless the contrary is shown by a preponderance of the evidence.
  • Texas: In August 2022, the Texas Department of Insurance adopted sweeping changes to rules governing certified workers’ compensation healthcare networks. The changes will require most existing networks to amend their application for network certificate, network-carrier contracts, network-provider contracts, and notice of network requirements, among other things. On another matter, in 2022, the Texas Department of Insurance, Division of Workers’ Compensation began its conversion to a new EDI reporting standard, a multi-step process it expects to complete by July 2023. The conversion will mean new reporting requirements and additional expenses for insurance carriers.
  • Virginia: As the COVID-19 pandemic continues, Virginia’s legislature extended the COVID-19 presumption for health care providers until December 31, 2022. In 2021, the General Assembly of Virginia amended Virginia Code Section 65.2-402.1 to establish a presumption of a compensable occupational disease for health care providers who contracted COVID-19. To be entitled to the presumption, the health care provider must establish that they contracted COVID-19 and suffered disability therefrom between March 12, 2020, and December 31, 2022 [see Va. Code Section 65.2-402.1(F)(2)].
  • West Virginia: On July 1, 2022, the Workers’ Compensation Office of Judges was eliminated with the 2021 legislation creating the new Intermediate Court of Appeals (ICA) in West Virginia. On July 1, 2022, the trial-level adjudication of issues will now be conducted by the West Virginia Workers’ Compensation Board of Review. The expanded Board of Review is now five members with Ted White and Allen Prunty joining Chairperson Nick Casey, Patty Jennings, and Brad Crouser. The reconstituted Board of Review has a staff of eight attorneys in addition to the five Board Members. Five of the attorneys are Hearing Examiners, and three of the attorneys serve as the Office of Counsel, which includes the Clerk and two Deputy Clerks. One of the duties of the Office of Counsel is to assist the Board in maintaining consistent decisions. The Intermediate Court of Appeals also began hearing workers’ compensation appeals from Board of Review decisions on July 1, 2022. The three-judge panel is comprised of three appointed judges: Huntington attorney Thomas E. Scarr to a term ending Dec. 31, 2024; Charleston attorney Daniel W. Greear to a term ending Dec. 31, 2026; and Charles Lorensen, to a term ending Dec. 31, 2028. The Intermediate Court of Appeals selected Judge Greear as Chief Judge.
  • Wisconsin: The Wisconsin Legislature Increased the Weekly Permanent Partial Disability Rate for the first time since 2017. On April 8, 2022, Wisconsin Governor Tony Evers signed into law 2021 Wisconsin Act 232 (the Act). The Act, which was sponsored by the bipartisan House Labor and Integrated Employment Committee, increased the weekly permanent partial disability rate (PPD). The Act changed the benefit rate to $415 for injuries occurring on or after April 10, 2022. The Act further increased the weekly PPD benefit to $430 for injuries occurring on or after January 1, 2023. Regarding another issue, Section 102.13(1)(b), Wis. Stats., was amended to allow an employee who appears at an examination directed by employers and worker's compensation insurance carriers to have an observer present at the examination. Practitioners should also note that the definition of “employer” was amended to clarify that every person who at any time employs three or more employees in Wisconsin is subject to Ch. 102, Wis. Stats., (Wisconsin Worker's Compensation Act) on the day on which the person employs three or more employees in the state. §§ 102.04(1)(b)1. & 2., Wis. Stats.
  • Wyoming: The legislature did not extend the presumption afforded by W.S. § 27-14-102(a)(xi)(A) beyond March 31, 2022. The 66th legislature enacted HB 59 to extend its policy of reducing the burden on employers by prohibiting the state from charging to the employer’s experience rating the coverage provided for COVID-19 claims. This applies only to compensable injuries that occurred during the period beginning January 1, 2020, and ending March 31, 2022, and for which a claim was filed on or before March 31, 2023. (Codified at W.S. § 27-14-201(u).)


Interesting spotlight cases include:

  • Alabama: Substantially Certain Tort Claim Fails Against Co-Employees [see Means v. Glover, 2021 Ala. LEXIS 55 (June 4, 2021)].
  • Alaska: High Court Reiterates Limit of $10K in Benefits for Deceased Worker Who Had No Dependents [see Burke v. Criterion Gen., Inc., 2021 Alas. LEXIS 133 (Nov. 5, 2021)].
  • Arkansas: Pharmacy’s Cold-Calling Injured Workers Results in Loss of Pharmacy License [see Sentrix Pharmacy & Disc., LLC, 2021 Ark. App. 500, 2021 Ark. App. LEXIS 528 (Dec. 8, 2021)].
  • California: Codification of “ABC” Test Survives Constitutional Test [see American Society of Journalists and Authors, Inc. v. Bonta, 15 F.4th 954, 86 CCC1024 (2021)].
  • California: Workers Asserting Misclassification Claim Need Not Prove Hiring Relationship with General Contractor or Agent Before Asserting “ABC” Test [see Mejia v. Roussos Construction, Inc., 76 Cal. App. 5th 811, 87 Cal. Comp. Cases 257 (2020)].
  • California: Surviving Spouse May Sue Her Employer for Husband’s COVID-19 Death [see See’s Candies v. Superior Court of Cal. for L.A. (Ek), 73 Cal. App. 5th 66, 87 Cal. Comp. Cases 21 (Dec. 21, 2021)].
  • Colorado: No Recovery for Injuries Sustained in Trip to Doctor’s Office [see Salazar v. Industrial Claim Appeals Office, 2022 COA 13, 2022 Colo. App. LEXIS 76 (Jan. 20, 2022)].
  • Connecticut: Benefits for Suicide Awarded under Chain-of-Causation Theory [see Orzech v. Giacco Oil Co., 208 Conn. App. 275 (2021)].
  • Delaware: Short Walk to Sandwich Shop Falls Within Personal Comfort Doctrine [see Henderson v. WP Ventures (Workers’ Comp. Appeal Bd.), 2022 Pa. Commw. LEXIS 8 (Jan. 14, 2021)].
  • Florida: Risk of Teacher’s Leg “Going to Sleep” Was Not Associated with Employment [see Silberberg v. Palm Beach Cnty. Sch. Bd., 2022 Fla. App. LEXIS 1078 (1st DCA, Feb. 16, 2022)].
  • Florida: Under Statutory Going and Coming Rule, “Travel Status,” Not “Traveling Employee Status” Governs Compensability [see Kelly Air Sys., LLC v. Kohlun, 2022 Fla. App. LEXIS 1812 (1st DCA, Mar. 16, 2022)].
  • Georgia: Subrogated Comp Insurer Is Not Claimant’s Fiduciary [see Bush v. Liberty Mut. Ins. Co., 361 Ga. App. 475 (2021)].
  • Idaho: Significant Post-Surgery Weight Gain Might Be Considered Subsequent Superseding Event Relieving Employer of Continued Liability [see Sharp v. Thomas Bros. Plumbing, 510 P.3d 1136 (Idaho 2022)].
  • Idaho: Firefighter’s Presumption of Compensability Is Constitutional [see Nelson v. City of Pocatello, 2022 Ida. LEXIS 46 (Apr. 29, 2022)].
  • Illinois: Commission Erred in considering Claimant’s Concurrent Employment Where There Was no Evidence Primary Employer Knew About Concurrent Work [see City of Springfield v. Illinois Workers’ Comp. Comm’n, 2022 IL App (4th) 210338WC-U, 2022 Ill. App. Unpub. LEXIS 1090].
  • Illinois: Claimant Fails to Recover Following Explosion of Firework in his Hand [see Junior v. Illinois Workers’ Comp. Comm’n, 2022 IL App (4th) 210341WC-U, 2022 Ill. App. Unpub. LEXIS 645].
  • Iowa: Suicide Must Be Causally Connected with an Injury, Not Merely the Employment Itself [see Jackson v. Bridgestone Ams. Tire Operations, 2021 Iowa App. LEXIS 1045 (Dec. 15, 2021)].
  • Iowa: 911 Dispatcher’s PTSD Claim Found Compensable [see Tripp v. Scott Emergency Commun. Ctr., 2022 Iowa Sup. LEXIS 68 (June 3, 2022)].
  • Kansas: Impairment May Not Be “Derived Solely” from AMA Guides, 6th Ed. [see Garcia v. Tyson Fresh Meats, 2022 Kan. App. LEXIS 4 (Jan. 28, 2022)].
  • Kentucky: Out-of-State Expert’s AMA Guides Report Inadmissible [see Toler v. Oldham County Fiscal Court, 2022 Ky. LEXIS 143 (June 16, 2022)].
  • Kentucky: Amended Statute Terminating Benefits at Age 70 Passes Constitutional Muster [see Cates v. Kroger, 627 S.W.3d 864 (Ky. 2021)].
  • Louisiana: Trial Court’s Award of Attorney’s Fees at $2,386.50 Per Hour Was Abuse of Its Discretion [see Cox, Cox, Filo, Camel & Wilson, LLC v. Louisiana Workers’ Comp. Corp., 2022 La. LEXIS 651 (Mar. 25, 2022)].
  • Maryland: In Hernia Statute, the Term “Definite Proof” Refers to Quality of Evidence [see UPS v. Strothers, 253 Md. App. 708, 269 A.3d 400 (2022), writ of cert. granted, Ups v. Strothers, 2022 Md. LEXIS 177 (Md., May 6, 2022)].
  • Minnesota: Injured Employee Fails to Establish Need for Long-term Opioids [see Johnson v. Darchuks Fabrications, 2021 Minn. LEXIS 423 (Aug. 18, 2021)].
  • Minnesota: High Court Nixes Mandatory Reimbursement for Medical Marijuana Claims [see Musta v. Mendota Heights Dental Ctr., 965 N.W.2d 312 (Minn. 2021)].
  • Missouri: Emotional Distress Suit Against Employer and Co-employee Dismissed [see Coats v. Kraft Heinz Foods Co., 2021 U.S. Dist. LEXIS 237473 (W.D. Mo. Dec. 13, 2021)].
  • Nebraska: Divided Supreme Court of Ohio Says Company Misclassified Cable Installers as Independent Contractors [see State ex rel. Ugicom Enters. v. Morrison, 2022-Ohio-1689, 2022 Ohio LEXIS 992 (May 24, 2022)].
  • Nevada: Cannabis Shop Employee’s Injuries in Customer Confrontation Might Be Compensable [see Durst v. Silver State Cultivation, 2022 Nev. App. Unpub. LEXIS 67 (Feb. 17, 2022)].
  • New Hampshire: High Court Says “Chain-of-Causation” Rule Applies to Suicide Claims [see Appeal of Pelmac Indus., 2021 N.H. LEXIS 154 (Oct. 13, 2021)].
  • New Jersey: Exclusive Remedy Rule Does Not Bar Tort Action under State Discrimination Law [see Richter v. Oakland Bd. of Educ., 246 N.J. 507, 252 A.3d 161 (2021)].
  • New Mexico: Disparate Treatment of Secondary Mental Impairment Benefits Is Unconstitutional [see Cardenas v. Aztec Mun. Schs., 2022 N.M. App. LEXIS 3 (Jan. 24, 2022)].
  • New York: Injured Worker Laid Off Due To COVID-19 Cutbacks Not Entitled to Reduced Earnings Award [see Matter of Coll v. Cross Country Constr., 202 A.D.3d 1236, 163 N.Y.S.3d 642 (3d Dept. 2022)].
  • New York: Grave Digger’s IIED Claim Barred by Exclusive Remedy Rule [see Zaborowski v. Roman Catholic Diocese of Brooklyn, 195 A.D.3d 884, 145 N.Y.S.3d 847 (3d Dept. 2021)].
  • New York: Flight Attendant Successfully Shows Allergic Reaction to Uniform Supports Occupational Disease Claim [see Matter of Molina v. Delta Airlines, Inc., 2022 N.Y. App. Div. LEXIS 237 (Jan. 13, 2022)].
  • North Carolina: Full Commission, Not Deputy Commissioner, Is Fact-Finder [see Forte v. Goodyear Tire & Rubber Co., 2022-NCCOA-281, 2022 N.C. App. LEXIS 282 (May 3, 2022)].
  • North Dakota: Unusual Stress Required to Support Heart Attack Claims [see State v. Felan, 2021 ND 97, 960 N.W.2d 805 (2021)].
  • Ohio: Furnace Worker’s COVID-19 Not Compensable [see Yeager v. Arconic Inc., 2022-Ohio-1997, 2022 Ohio App. LEXIS 1867 (June 13, 2022)].
  • Oregon: Eye Injury from Exploding Energy Drink Is Compensable [see SAIF Corp. v. Chavez-Cordova (In re Chavez-Cordova), 314 Ore. App. 5, 2021 Ore. App. LEXIS 1132 (Aug. 18, 2021)].
  • Oregon: Stress Claim Fails Under State’s “Major Contributing Cause” Standard [see In re Comp. of King v. Gallagher Bassett Ins. Servs., 316 Or. App. 24, 2021 Ore. App. LEXIS 1681 (Dec. 1, 2021)].
  • Pennsylvania: Employee’s Suicide Was Compensable [see SEPTA v. Workers’ Comp. Appeal Bd. (Hansell), 2021 Pa. Commw. LEXIS 471 (May 24, 2021)].
  • Pennsylvania: Co-Worker’s “Hug” From Behind Was Not an Assault [see Stanis v. Workers' Comp. Appeal Bd. (Brand Energy Servs.), 2022 Pa. Commw. Unpub. LEXIS 220 (May 23, 2022)].
  • Rhode Island: Supreme Court Extends “Branco” Parking Lot Rule to Include Leased Properties [see Phillips v. Enterprise Rent-A-Car Co. of R.I., LLC, 2022 R.I. LEXIS 40 (May 6, 2022)]
  • South Carolina: Signed Mediation Agreement Binds Employer/Carrier to $1 Million Payment Despite Worker’s Death Seven Days After Mediation [see Ex parte Horne, 2022 S.C. App. LEXIS 82 (Aug. 3, 2022)].
  • South Dakota: To Rebut Claimant’s Odd-Lot Status, Employer Need Not Contact Prospective Employers and Specifically Advise Them of Claimant’s Condition [Baker v. Rapid City Regional Hosp., 2022 SD 40, 2022 S.D. LEXIS 83 (July 20, 2022)].
  • Texas: Wrongful Death Action Related to Employee’s COVID-19 Exposure Barred by Exclusive Remedy Rule [see Sil v. Larsen Farms, 2022 U.S. Dist. LEXIS 27705 (N.D. Tex. Feb. 15, 2022)].
  • Utah: Truck Driver With Preexisting Condition (Obesity) Recovers for Deep Vein Thrombosis [see JBS Carriers v. Utah Labor Comm'n, 2022 UT 31, 2022 Utah LEXIS 63 (June 30, 2022)].
  • Virginia: Three-Week Exposure to “Radar Beams” Was Not “a Definite Occasion” that Would Support Injury by Accident [see Johnson v. General Dynamics Corp., 2022 Va. App. LEXIS 61 (Mar. 8, 2022).
  • Washington: Staffing Agency May Be Liable for Borrowing Employer’s Safety Violations [see Department of Labor & Indus. v. Tradesmen Int’l, LLC, 2021 Wash. LEXIS 586 (Oct. 28, 2021)].
  • West Virginia: Six-month Statute of Limitations Is Jurisdictional [see Foltz v. Berkeley County Bd. of Educ., 2021 W. Va. LEXIS 511 (Oct. 4, 2021)].


As in years past, with this year's edition of Workers' Compensation Emerging Issues Analysis, we have endeavored to provide a broad range of interest content for the workers’ compensation community. We trust you will find it educational and informative.

© Copyright 2022 LexisNexis. All rights reserved. This article is reprinted from Workers’ Compensation Emerging Issues Analysis, 2022 Edition.