By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
The existence of an employment relationship is the lynchpin of workers’...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
For readers who may not be familiar with the Workers’ Compensation...
The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023. As a result...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 11 November 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
Nearly two decades ago Senate Bill 899 was enacted and ushered in a...
By Thomas A. Robinson, Co-Editor-in-Chief, Workers’ Compensation Emerging Issues Analysis (LexisNexis)
As we move through the third decade of the twenty-first century, the United States remains a land of contradictions. On the one hand, we have breathtaking mountains, sweeping shorelines, and landscapes of natural beauty. We enjoy cities and towns with beautiful neighborhoods and cityscapes. We have rural stretches that supply a significant share of the world’s food supply. And we have violence. Some areas of our inner cities have become war zones. Our schools practice lockdown procedures. Our public squares are monitored by metal detectors and other security devices.
To the extent that the American workplace is representative of the American culture, more and more it too has become violent. According to the federal Occupational Safety and Health Administration (OSHA), acts of violence is currently the third-leading cause of fatal occupational injuries in the U.S. During 2021, the year for which complete information is available, fatalities due to workplace violence increased almost 8 percent over 2021. 718 American workers were killed through intentional violent acts during 2021, an increase of 10.3 percent over the previous year. Women appear to be particularly vulnerable to workplace injuries due to violent acts. Although they made up 8.6 of all workplace fatalities during 2021 (men generally are involved in the riskiest vocations), women sustained 14.5 percent of intentional violent injuries during 2021 [see https://www.bls.gov/news.release/cfoi.nr0.htm].
Earlier this year, when we reviewed potential themes for this year’s edition of the Workers’ Compensation Emerging Issues Analysis, we decided to feature workplace violence prominently. We want to call attention to the issue because, unfortunately, incidents of workplace violence often go unreported. We lead off this year’s discussion with several timely articles on violence within the workplace. Perhaps as we—and many others—focus on the issue, we can all help reduce its incidence.
Of course, we cover additional issues in this volume. While we appear to have moved through the worst of the COVID-19 pandemic, its effects still linger, and they are often evident within the workplace. As detailed below, we feature a number of COVID-related articles for your perusal.
Medical marijuana continues to be a hot topic within the industry. We include one article that expertly discusses the current law on reimbursement for marijuana and cannabis expenditures by injured employees. We offer another on the emerging intersection between recreational cannabis/marijuana and the workplace.
Where would an emerging issues volume be without some discussion of artificial intelligence? We offer two articles on that new topic as well.
As has been the practice in 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.
Workplace Violence and Workers’ Compensation
In § 2 of this latest annual volume, we open our workplace violence discussion with an article prepared by the LexisNexis Workers’ Compensation staff entitled, “California: A Roadmap for Litigating Incidents of Workplace Violence.” Despite the reference to the Golden State, the article provides an incisive discussion of the classic “arising out of” and “in the course of” elements of employer liability that apply in virtually every jurisdiction. References within the article to California decisions, while not precedential outside that state, nevertheless provide important examples of the types of workplace violence incidents that commissions and boards find compensable. The article is written as a straight-forward “roadmap” for analyzing violent incidents within the workplace.
In § 3, experienced Florida attorneys, Richard T. Fuerst & Robert J. Grace, Jr., provide a companion piece of sorts to the California “roadmap” just noted. In their offering entitled, “A Guide to Understanding Workplace Violence and Florida Workers’ Compensation,” Fuerst and Grace identify four primary doctrines and defenses that are applicable in most violent workplace incidents in the Sunshine state. Their discussion of Florida’s important Porter decision [Tampa Maid Seafood Products v. Porter, 415 So. 2d 883 (Fla. 1st DCA 1982)] is fully informative for attorneys, carrier representatives, and those administering other state workers’ compensation act. They offer additional discussion of “the deviation from employment defense” as well as horseplay.
Logan H. Shipman & Elizabeth P. Ligon, who practice in the North Carolina firm of Teague Campbell Dennis & Gorham, offer important insights for those handling workplace violence claims in the Carolinas in their article entitled, “Navigating Workplace Violence Claims Under the North Carolina Workers’ Compensation Act,” found in § 4. Shipman and Ligon offer practical pointers and takeaways that are applicable in virtually all jurisdictional contexts.
Rounding out the state-specific discussions is a cogent offering in § 5 entitled, “Workplace Violence in New York Workers’ Compensation Claims,” by Ronald E. Weiss & Ashley E. Lewis, of Hamberger & Weiss LLP. These experienced Empire State experts discuss the dominant cases and legal theories at stake in workplace violence disputes. They point out that workplace violence claims sometimes produce compensable mental injuries if the affected worker can demonstrate that he or she experienced stress greater than that experienced by similarly situated workers.
Again, while the specific decisions cited by these New York experts may not be precedential in your jurisdiction, the issues these authors discuss are often similar to those faced all around the country.
In § 6, I discuss an important recent study by Kimberly Rauscher ScD, MA, et al., entitled “Prevalence of Workplace Violence Against Young Workers in the United States,” published in the American Journal of Industrial Medicine, Volume 66, Issue 6 [pp. 462-471]. The study observes that young workers (i.e., under the age of 25) may be at particular risk of injury due to workplace violence, given their predominant employment in the high-risk retail and service industries. The authors have conducted the first national study of workplace violence against young people in our country. Their study suggests that workplace violence is common among young workers and is more widespread than prior estimates have suggested.
COVID-19 Pandemic Issues
The Honorable Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board, offers an insightful examination of the March 2022 study conducted by the Workers’ Compensation Research Institute, “Long COVID in the Workers’ Compensation System Early in the Pandemic.” The study, discussed in § 7, measured, inter alia, the prevalence of long COVID symptoms among workers with a COVID-19 infection. It found that some 7 percent of workers infected with COVID-19 continued to suffer some prolonged symptoms after the “normal” time frame associated with the disease. The numbers of patients with “Long COVID” were even higher among those workers who underwent medical care for the virus. The study found that the average medical payment for workers’ compensation claims without long COVID was $3,000. However, the average medical costs for workers who had been hospitalized was $50,000 and more than $150,000 for workers who received treatment in hospital ICUs.
Hamilton supplements her COVID-19 discussion in § 8, with a piece entitled, “COVID-19’s Impact on the California Workers’ Compensation System: WCIRB Updates Its March 2022 Study.” She examines a study published by the California Workers’ Compensation Insurance Rating Bureau (WCIRB) supplementing its earlier assessments as to medical treatments and costs of COVID-19 claims. The study found, among other things, that when compared to non-COVID-19 workers’ compensation claims, COVID-19 compensation claims were more likely to involve hospitalization and fatality and were more concentrated among workers aged 50 and older. COVID-19 death claims had higher average medical costs than their non-COVID-19 counterparts, due in large part to higher inpatient costs and longer hospital stays prior to the fatality.
While the pandemic is largely behind us, questions remain. For example, how might we better respond to a future pandemic? What major occupational groups and industry subsectors were most affected by COVID-19, especially in the first year? What difference in risk is associated with low-status jobs in high-risk occupational areas and high-status job in the same occupational areas? These and other questions are addressed by Christopher Mahon, LexisNexis Insights Contributing Author, in “Workers’ Self-Reported COVID-19 Exposure and PPE Availability in Michigan During the First Year of Pandemic,” an article found in § 9 of this volume. Mahon examines a study conducted by researchers in the Department of Epidemiology at the University of Michigan School of Public Health and a researcher from Michigan’s Department of Health and Human Services and published online in the American Journal of Industrial Medicine on September 24, 2022. Of particular note is the study’s finding that where Personal Protective Equipment was unavailable to workers, the numbers of COVID-19 incidents—and the costs associated with the claims—was significantly higher than in situations in which workers PPD was readily available.
Mahon offers another insightful read in his article entitled, “COVID and the State of American Psychiatry,” found in § 10. Mahon analyzes a piece written by George Makari, published in The New Yorker on July 13, 2023. While that article did not specifically address workers’ compensation issues per se, it highlighted research positing that COVID unleashed a pandemic of mental illness that included “elevated rates of suicide, anxiety and depression, addiction, developmental delay, and psychiatric E.R. visits.” As those in the field of workers’ compensation know, where an employer is found to be responsible for an underlying condition or disease, it remains responsible for most medical sequelae resulting from the disease, sometimes even including mental disorders. Mahon’s clearly-written article provides important insights.
In § 11, we turn to the important issue of medical marijuana. Albert B. Randall, Jr. & Samantha L. Schilling, of the Baltimore office of Franklin & Prokopik, P.C., have supplied us with “The Current Status of the Law on Medical Marijuana Reimbursement in Workers’ Compensation.” Randall & Schilling provide a concise snapshot of the current landscape in the workers’ compensation arena. They discuss the implications of a 2021 decision from Michigan, Musta v. Mendota Heights Dental Center, as well as the widely-discussed Maine decision in Bourgoin v. Twin Rivers Paper Company, Case No. App. Div. 21-0022, Decision No. 23-2, State of Maine Workers’ Compensation Board (January 6, 2023).
In § 12, Christopher Mahon takes a look at a recent Canadian study assessing the impact of recreational cannabis legislation on the workplace. His piece, “Recreational Cannabis and the Workplace: Worker Perceptions in Canada,” analyzes a study by Dr. Nancy Carnide, et al., published in Occupational Environmental Medicine on July 18, 2022. To the surprise of some—like me—the findings of the Canadian study indicated little substantive changes in cannabis use in the workplace before and after legalization. The researchers also found little substantive changes in perception of risk due to use of cannabis two hours before or during working hours. Among other findings, the study did indicate, however, that after legalization, approximately 5 percent of workers used cannabis at some point during the work day and that approximately 10 percent of workers surveyed indicated the use of cannabis during the work day created little risk for productivity or harm.
Artificial Intelligence (AI)
Oakland attorney, Julius Young, of Boxer+Gerson, offers engaging and colorful expertise in “Asking ChatGPT about California Workers’ Comp,” found in § 13 of this volume. As Young allows, “warts and all, the future is here.” Young posited some 45 questions to ChatGPT. He provides us both with his questions and the app’s responses. The app’s apologies and counter-responses are themselves a good read. Young’s overall assessment: ChatGPT gets much right, but also makes critical errors. He says it was much better at basics than with “thorny issues.”
In “Four New Strategies for Understanding the Relationship Between AI and Work Environment, Workplace Safety and Worker Health,” found in § 14, Christopher Mahon examines an AI study article by Arif Jetha, et al., published in the American Journal of Industrial Medicine on July 31, 2023. Among the study’s findings is one that piqued my interest: AI bots can be inherently neutral, but the authors of the study report reiterated that the neutrality of machine intelligence depends on its design. The authors suggest a tension between benefits that AI may provide to corporations and the risks that AI may impose on society in general and workers in particular. The authors also point out that few laws and policies currently exist to offset the potential risks of AI to society and workers. They suggest that future research should be applied to develop the standards for such laws and policies. Special AI attention is likely required regarding workers who have historically faced discrimination, such as women and minority populations. Algorithms for machine learning need to be designed so that discrimination is not exacerbated in such areas as loan application, resume screening, and allocating job assignments in the online platform gig economy.
Other Emerging Issues
Widely-known Livingston, New Jersey attorney, Richard B. Rubenstein, favors us with “The Grand Bargain & Presumptions: Are Some Workers More Equal Than Others?” found in § 15 of this volume. Rubenstein notes the wide diversion in the manner states treated COVID-19, with a number providing special presumptions of compensability for small classes of workers, but not others. He also offers his take on important questions, such as “Did We Need a COVID-19 Presumption?” He pays particular attention to presumptions that favor only a relatively small segment of the workforce, such as heart and lung presumptions for firefighters and other first responders. He discusses the monographs published by the International Agency for Research on Cancer (IARC)—important publications that may not be familiar to many of our readers. He offers a number of insightful takeaways.
The Honorable Susan V. Hamilton offers her insights in “The Impact of Climate Change on Workers and Employers: The California Experience,” an article found in § 16. Analyzing the California Legislative Analyst’s study, “Climate Change Impacts Across California” (LAO, April 4, 2022) (LAO report), she both posits and answers the question as to whether climate change is relevant to work, in general, and to workers’ compensation, specifically. As pointed out in the LAO report, research has demonstrated a relationship between temperature and occupational health. Both high and low temperatures increase injury rates. Moreover, outdoor work isn’t the exclusive province of agricultural workers or firefighters. Indeed, many different occupational categories perform a substantial amount of outdoor work, including police officers, other first responders, landscapers, postal workers, utility workers, commercial fishery workers, recreational workers, and construction workers. Hamilton discusses a Texas study that found the risks of working in 100° F or more increased workers’ compensation claim rates over the next three days by 3.5 to 3.7 percent. Hamilton offers her expertise in discussing recent climate change legislation—primarily from California.
Joseph Dougherty, J.D., a LexisNexis Insights Contributing Author, provides his perspective in “Effect of Behavioral Health Issues on Injured Workers Returning to Work: Chronic Pain, PTSD, COVID-19 & More,” found in § 17 of this volume. Dougherty takes a look at an August 2022 white paper, “A Primer on Behavioral Health Care in Workers’ Compensation,” by Vennela Thumula and Sebastian Negrusa, published by the Workers’ Compensation Research Institute. Thumula and Negrusa posit that psychosocial factors, including job dissatisfaction, workplace stress, low support from supervisors and peers, preexisting mental health symptoms or conditions, and system or contextual obstacles often act as barriers to recovery following a work-related physical injury. According to Dougherty, the authors urge early identification of psychosocial factors by using screening tools, such as those for musculoskeletal pain, back pain, and functional recovery, so that patients can be educated and taught self-management strategies, or even be directed to specialists. Examined also are COVID-19-like difficulties (e.g., brain fog, headaches, change in smell or taste and depression) experienced by workers suffering from long COVID. Dougherty provides a number of important takeaways regarding behavioral health issues in the workplace.
An important debate emerging during the past few years is whether temporary workers should be treated separately under workers’ compensation laws due to additional employment and income risks that they may incur after workplace injuries. Christopher Mahon reviews this issue and related questions in his piece, “Temporary Workers’ Employment and Income Risks After Workplace Injuries,” found in § 18. Specifically Mahon analyzes a published study conducted by Nicholas Broten of the Pardee RAND Graduate School, Michael Dworsky of the RAND Corporation, and David Powell of the RAND Corporation [see “Do Temporary Workers Experience Additional Employment and Earnings Risk After Workplace Injuries?”, Journal of Public Economics (May 2022)]. According to the study, while temporary workers and direct-hire workers generally are treated equally under workers’ compensation law, the economic circumstances of temporary workers after injury are less favorable for temporary workers than for direct-hire workers. Temporary workers also incur greater employment and earnings risk after injury than do direct-hire workers under the same circumstances. Mahon includes important takeaways in his analysis of the RAND Corporation study.
In § 19 of this volume, Mahon provides careful, cogent analysis regarding a study of work-related fatalities among older workers in his article entitled, “Work Fatalities in North Carolina Among Older Workers Before and After the Great Recession of 2008.” The study, published in the January 30, 2023 issue of Journal of Occupational & Environmental Medicine, examines the “aging workforce” in North Carolina—a representative state in many regards—and posits that not only is the number of older workers (55 years of age or older) increasing, but older workers also experience greater risk for occupational injuries than their younger counterparts. Some employers are finding it difficult to weigh the costs associated with that greater risk of injury with the benefits that older workers provide to companies. For example, older workers can train other employees. They offer a stabilizing effect in the company workforce, and they bring wisdom and experience to the job.
As has been my practice, I include my most-popular annual blog, “The Top 10 Bizarre Workers’ Comp Cases for 2022,” in this year’s volume. It can be found in § 20. Bizarre winners for 2022 included “Did Radar Beams Cause Technician’s Death?”, “Polish ‘Bear Hug’ Was No Assault,” as well as an annual firecracker case, “Wonder if This One is Still Any Good?” Also notable on the “bizarre meter” was a case involving a fight with an employee of a cannabis dispensary and a case in which one employee allegedly rigged a toilet seat so that it would explode when a co-worker sat down on it. I’ve pushed this annual list, in one form or another, now for more than 35 years.
At first blush, the article featured in § 21, “Castellanos: Rethinking the California Legislature’s Plenary Power Vis-à-vis Workers’ Compensation,” may appear to be overly “California-centric.” After all, within its clear and cogent language, California expert and former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board, Susan Hamilton presents a discussion of Proposition 22 and related matters—clearly California issues. Read between the lines, however, and you’ll likely see that her discussion has implications within your own state since the core issue—employment relationship and designation as independent contractors—is a lightning rod of dispute throughout the country. While the issue in California is further flavored by Article XIV, section 4 of the state Constitution, in which the legislature is granted “plenary power” over workers’ compensation issues, those from beyond the Golden State who invest the time in reading this article will hear more than a faint echo of the argument that may be churning in other jurisdictions: “Is the Grand Bargain Still in Place?”
Colorful and prolific friend and colleague, the Honorable Robert G. Rassp, Presiding Judge, and the Honorable Clint Feddersen, Workers’ Compensation Judge, (both in California) offer another important piece that reaches across jurisdictions. Their article, “Depositions of Injured Workers in California,” is found in § 22. These two imminent judges provide tips and warnings regarding best practices for attorneys on both sides of the case. They offer suggestions related to the growing number of injured workers who are not proficient in English. Again, while the specific procedure utilized in your jurisdiction will be different from that mandated in California, the checklists and takeaways provided by Judges Rassp and Feddersen are invaluable.
Rounding out our expert commentaries is a piece by the Honorable Susan V. Hamilton, found in § 23, entitled “RAND Releases Study on Alternative Payment Models for California’s Workers’ Compensation System” (is there an important medico-legal study that she has not read?). Hamilton highlights a study in which the California Legislature engaged RAND Corporation to conduct a study on Alternative Payment Models (APM) for the California’s Workers’ Compensation System. The study, now released, recommends the implementation of a pilot program that aims to increase provider participation in the workers’ compensation system while simultaneously improving worker access to quality care. What are APMs? Traditionally, the predominant payment model in health care systems in the United States has been “fee for service.” Such payment models have been criticized for lack of fiscal accountability in that they may incentivize physicians to overprovide care to increase their own income. Some patients end up getting too much care, while others may not receive enough care. Additional criticisms of the fee for service paradigm include a lack of focus on prevention and health care outcomes. APMs have been implemented in some health care settings to rein in costs, discourage over treatment, and incentivize quality improvements.
The study examined five different APMs and assessed their feasibility in the workers’ compensation setting: Pay for Performance, Value-Based Programs, Bundle-Based Programs, Accountable Care Organizations, and Global Budgets. As has been noted by many of us on many occasions, California is often the source of interesting workers’ compensation concepts. This may be another example.
As is our practice in past years, Part II offers a state-by-state 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:
Interesting spotlight cases include:
© Copyright 2023 LexisNexis. All rights reserved. This article was reprinted from the upcoming 2023 Edition of Workers’ Compensation Emerging Issues Analysis (LexisNexis) (December 2023), now on pre-sale at the LexisNexis Store.