COVID-19 and the Workplace: Workers' Compensation Emerging Issues Analysis

In April, as we began to contemplate the overall theme for this year’s edition of our Workers’ Compensation Emerging Issues Analysis series, a colleague and I mused that, unlike the situation in past years, when we had debated which of several topics might be our overall theme, the decision for the 2020 edition was easy. Not since World War II has there been such a disruptive factor within the American society and economy as COVID-19.

And yet, while deeply disruptive, the effects of the virus have been far from uniform across the nation. Some segments of the economy (e.g., the hospitality industry) have been staggered, while others (e.g., those that depend upon white-collar employees) have often been spared. Some states have been hit much harder than others. For example, according to Statista, a firm that specializes in gathering and reporting business data, as of September 11, 2020, there had been almost 192,000 deaths related to COVID-19 in the United States. The death rate from COVID-19 in New York is 170 per 100,000 people, whereas the rate is fewer than 7 per 100,000 people in Hawaii, Wyoming and Alaska [see https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-us-by-state/].

Within the workers’ compensation setting, states have often addressed COVID-19 claims quite differently as well. Beginning in late March, and continuing through April and May, a number of state governors stepped to microphones and cameras in their respective state capitals and announced broad-sweeping Executive Orders granting “protection”—generally in the form of presumptions of compensability for COVID-19 claims—for claims filed by first responders. Occasionally the orders were sufficiently broad so as to cover those who provided treatment to COVID-19 patients in hospital emergency departments. Absent, however, from most of the early executive orders was any protection for other workers facing a significant risk of infection—clerks in grocery stores and pharmacies, housekeeping workers in hospitals and public transportation employees. State leaders often said that protecting first responders was the “least we can do,” and in many cases, that appeared to be the goal: to do the least possible when it came to the broad group of employees who were on the front lines of the infection.

Early state legislation took a somewhat similar pattern. Minnesota was the first state to rely upon the state’s Legislature to craft a presumption provision, with passage on April 7, 2020, of H.F. 4537. As noted in my article, “State Governors Have Pens, Who Needs Legislatures?”, the bill favored first responders and some healthcare workers, but few others. Later legislation in other states was not nearly so discriminatory. For example, a California bill passed after the expiration of the governor’s executive order, protected not only the “usual suspects”—healthcare providers, police, firefighters, and EMTs—but provided the same presumption for the person checking out your groceries or the clerk at the pharmacy.

As noted in some of the articles contained in this year’s volume, the significant majority of states have not provided special presumptions of compensability, either in the form of an executive order, or in the form of legislation passed by those responsible for promulgating the state’s laws.

While 2020 will certainly be known as the “Year of COVID-19,” it is certain that the effects of the virus will be felt well into 2021, if not beyond. Will a vaccine be available by the end of 2020? Will there be a flurry of disputed claims involving COVID-19 by year end? Early anecdotal evidence tends to support the conclusion that many insurers are accepting many of the claims filed by September 1, 2020. Will “work-at-home” remain a popular alternative? If so, what effect will this have, if any, on the number of ergonomic injury claims, on claims involving “going and coming”, and on claims in which it may become difficult to separate personal activities from those associated with the employment? One thing is sure: we’ll continue to have many COVID-related issues to discuss for quite some time.

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.

The State of the Workers’ Compensation Industry in the Wake of COVID-19

Marianne Tancor provides excellent coverage of an informative set of webinars put on earlier this year by workers’ compensation experts, Kimberly George (Office of the CEO, corporate development, M&A, and healthcare at Sedgwick) and Mark Walls (VP Communications & Strategic Analysis at Safety National). The series, entitled “Out Front Ideas,” highlights a variety of COVID-19 challenges confronting the workers’ compensation community. Specific topics included the following:

• Continuity in the COVID-19 Era: Businesses Battling a Global Pandemic
• Pain Management and Wellbeing During the COVID-19 Pandemic and Beyond
• Impact of COVID-19 on Workers’ Compensation: The Experts Weigh In (this one featured me, et al
• Leave of Absence, Return to Work and Access to Medical Care During the Pandemic and Beyond
• Adapting to COVID-19: Employers in Different Sectors Provide Their Perspective

In an article entitled, “While We’re Adjusting Our COVID-19 Masks, Is the Grand Bargain Being Altered?”, I muse/fret that the Grand Bargain—the delicate balance of rights and obligations between the employer and the employee, with society looking on as an interested party—may be shifting beneath our feet as governors change the respective property rights and obligations set forth within the “bargain” with a stroke of their executive pens in the face of the COVID-19 crisis. Has there been sufficient serious debate on the power of the governors in the face of the COVID-19 emergency? Doesn’t an emergency change the inhabitant of the state mansion into a “super-legislative” entity?

It’s Telecommuting Time

Noting that COVID-19 has resulted in a significant increase in the number of persons working from home, Michael I. Fish, of the Birmingham, Alabama law firm, Fish Nelson & Holden, LLC, provides his insights on the subject in a piece entitled, “Workers’ Compensation and the Telecommuter.”

Compensability of COVID-19 Claims

In an incisive article providing an important employer/carrier perspective, North Carolina attorneys, Luke A. West and Heather T. Baker, highlight many of the challenges in defending COVID-19 claims in their article entitled, “Communicable Diseases and Workers’ Compensation: Critical Factors for Determining Compensability.”

In “Old Case Law May Be Key to Many Coronavirus Claims,” I point out that workers’ compensation practitioners should not be too quick to discount “old” law in their jurisdictions. Indeed, some old law—e.g., the 1979 North Carolina Supreme Court decision in Booker v. Duke Medical Center, may still be good law when it comes to COVID-19 claims. In another piece, written in early March, “For Workers’ Comp World, Coronavirus is a real ‘Snake in the Grass,’” I point to a Pennsylvania case more than 100 years old—McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617 (1918)—and argue that in most states, practitioners would do well not to think of COVID-19 as an occupational disease, but rather to consider the old line of cases dealing with anthrax and other “accidental” diseases.

In an article entitled, “Old Influenza Case from Hawaii Shows How COVID-19 Presumptions Might Work,” I point out that in Hawaii (as well as a few other states), there are existing presumptions that might give us a hint as to how the COVID-19 presumptions might play themselves out.

In yet another COVID-19 piece I wrote earlier this year entitled, “Anachronistic Longings—the Co-Worker Lunch,” I analyze a recent appellate decision from New York, in which two employees were injured as they drove to an off-site lunch and I allow that I can’t help but feel nostalgia for that pre-coronavirus treat: the business lunch.

To the extent that some of my own pieces look to the past, Karen Yotis incisively looks to the future in her splendid piece entitled, “Back to Business After COVID-19: Expanding the Claims Landscape Beyond the Grand Bargain.”

COVID-19 Presumptions of Compensability

As noted below. in my discussion of Part II—State-by-State Legislative & Case Survey—a number of states have established presumptions of compensability favoring some employees who contract COVID-19. In some instances, the action was taken unilaterally by the state governor, via executive order. In others, the respective state legislature debated and passed a bill granting favorable treatment to some of those who face the risks of contracting the virus. As of the mid-September production deadline for this volume, no appellate decisions have been decided on any aspect of COVID-19 liability. We have included a number of pieces, however, that discuss one or more issues relating to the presumptions.

For example, in my piece, “State Governors Have Pens, Who Needs Legislatures?”, I comment on a number of the early executive orders in California, Kentucky, Missouri, and North Dakota, and I argue that the Minnesota legislation, while deeply discriminatory, at least has the benefit of being openly debated on the floor of the state legislature.

In another article, “Illinois Commission Says ‘Ooops’ as to its Presumption of Compensability,” I point out how the Illinois Commission jumped the gun and issued its own presumption in what many felt was an ultra vires move, only to have to “undo” it a few days later when the Illinois governor acknowledged that, while it might covet it, the Commission didn’t have police power.

In an article I wrote, entitled “In the COVID-19 Medical Crisis, Who Is on the Front Line?”, I argue that the wording in several of the state presumptions of compensability—particularly the ones crafted via executive order—the governors’ argument that “front line” workers are being protected is a fiction, that the risks faced by grocery store and pharmacy clerks is as high as that of a firefighter and yet only the “first responders” seem covered by the new “laws.” I continue that argument in another piece, “The First Shall Be First, and the Last Shall Remain Last: COVID-19 Legislation Continues to Follow Discriminatory Practices.” I posit that those employment groups with strong political connections seem always to be “out front.”

In another article, “COVID-19 Presumptions Don’t Stand Alone in the Workers’ Comp World,” I argue that as “disruptive” as the new presumptions seem to be, they actually exist within a workers’ compensation world that during the past 100 years has become quite accustomed to inversions in the burden of proof in quite a few instances, to wit: unexplained falls/deaths, fighter presumptions as to heart/lung and certain cancers, presumption of compensability in the Longshore Act and in the Defense Base Act, presumptions regarding “last injurious exposure,” to name a few.

Finally, California attorneys Brenna Hampton, William Davis, et al., supply an important discussion of the presumption issues in “Overcoming the COVID-19 Presumption: Latency, AOE/COE, and Proximate Cause.” While the article draws heavily on California law and procedure, its insights will be important far behind the Golden state.

Other Items of Interest

Of course, COVID-19 has not been the only item of interest during 2020. We’ve included a number of other articles of interest as well. For example, in keeping with our practice in past years, I’ve included “The Top 10 Bizarre Workers’ Comp Cases for 2019,” a blog I publish each January highlighting the zany world within which we function. Stay tuned in early 2021 for the cases I’ve located from this year. I also include my subjective summary of “2019’s Top 10 Workers’ Compensation Cases.”

In another important decision, which came down after the production deadline for last year’s Workers’ Compensation Emerging Issues Analysis volume, the Supreme Court of Idaho became the only jurisdiction to define an “intentional tort” in such a way as to include not only intentional actions on the part of the employer—as do the other 49 jurisdictions—but also those actions in which the employer has engaged in reckless conduct [see Gomez v. Crookham Co., 2019 Ida. LEXIS 238 (Dec. 20, 2019). My article, entitled “Idaho High Court Does ‘a 180’: Employees May Sue Employers for Reckless Conduct,” is included this year.

Finally, will Pennsylvania’s Protz decision ever be put to rest? In my piece entitled, “The AMA is on Another Collision Course with Protz,” I argue that the recent announcement by the AMA that, as an alternative to a Seventh Edition of the AMA Impairment Guides, it is considering “updating” the Sixth Edition on an annual basis, places it on a path of conflict in Pennsylvania, Oklahoma, Kansas, and several other states that currently utilize the Sixth Edition.

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

As we have done in the past, Part II offers a state-by-state rundown on important workers’ compensation legislation during the past year. Most indicate whether special COVID-19 legislation (or executive orders) have been passed within the state. Part II also contains spotlight decisions from many jurisdictions.

Important state-specific updates include:

• Establishment in Alaska of a presumption of compensability favoring emergency response and health care employees who contract COVID-19 during the public health disaster declared by Governor Dunleavy on March 11, 2020, if the employee: (1) is employed as a firefighter, emergency medical technician, paramedic, peace officer, or health care provider; (2) is exposed to COVID-19 in the course of employment; and (3) receives (A) a COVID-19 diagnosis by a physician, (B) a presumptive positive COVID-19 test result, or (C) a laboratory-confirmed COVID-19 diagnosis.
• Increased telemedicine access In Arizona for workers’ compensation cases. On April 14, 2020, Governor Ducey issued an executive order that provides, among other things, that all workers’ compensation insurance plans regulated by the Arizona Department of Insurance, self-insurance plans regulated by the Industrial Commission of Arizona, and the Special Fund must provide coverage for all healthcare services that can be provided through telemedicine if the services would be covered for an in-person visit between the injured worker and a healthcare provider.
• Action by the Governor of Arkansas on April 14, 2020 [Executive Order (EO) 20-19], suspending the provisions of Arkansas Code that bar compensation for exposure to a disease to which the general public is exposed to allow first responders and front-line healthcare workers to seek workers compensation for exposure to COVID-19, if contracted in the line of duty. Subsequent executive orders were issued regarding COVID-19, including Executive Order 20-35, on June 15, 2020, clarifying that requiring an employee to work under conditions in which he or she might be exposed to COVID-19 is not the sort of “intentional conduct” that might subject the employer to liability in tort.
• Establishment of presumption of compensability in California for certain COVID-19 cases. In late August 2020, as the regular session of the California legislature was about to end, Senate Bill 1159 was passed, creating a presumption of compensability for first responders, healthcare workers, and other essential employees through 2022. Governor Newsom has until September 30, 2020 to sign the bill, veto it, or allow it to become law without his signature. California experts anticipate the governor will sign the legislation since the bill codifies in large measure his own May 6, 2020, Executive Order granting a similar presumption. That Executive Order had expired.
• Amendment to the Colorado Act [see SB 20-026, signed on June 29, 2020, effective September 13, 2020], broadening coverage for PTSD resulting from audible or visible exposure to death or serious injury of another, even if such exposure was within the worker’s usual experience [e.g., first responder or police officer].
• Establishment of rebuttable presumption of compensability, for Connecticut workers who contract COVID-19 on the job during specified period [see Executive Order No. 7JJJ.
• Amendment to the Illinois Occupational Disease Act to provide for a rebuttable presumption of compensability for certain employees who, for the period March 9, 2020 through December 31, 2020, receive a confirmed COVID-19 medical diagnosis by either a licensed medical practitioner or a positive laboratory test. Additionally, the Illinois Commission adopted a new procedure for preparing and submitting settlement agreements for approval. Electronic submission is now required.
• Amendment to the Indiana Workers’ Compensation Act [SB 269] to modify the method by which impairment for vision loss is calculated.
• Legislative creation of a presumption of compensability for certain employees who contract COVID-19 in Minnesota. Somewhat similar to presumptions created in several other states, employees working in first responder or healthcare occupations will be presumed eligible for workers’ compensation benefits if they either test positive for COVID-19 or are diagnosed by a licensed physician, physician’s assistance, or APRN without a test.
• Action by Michigan Governor Whitmer designating that certain employees in high risk fields to be granted a presumption of work-relationship in the event that they become disabled from working or need to be quarantined due to a positive COVID-19 test or diagnosis. On March 18, 2020, subsequently amended on March 30, 2020, this presumption was extended to “first response employees,” including health care providers working in a health care organization, agency, or facility, as well as individuals working as paid or on-call police officers, firefighters, EMT’s, or state correctional/local correctional officers.
• Authorization by Minnesota’s Health Commissioner of a significant expansion of medical cannabis usage to include those suffering from “chronic pain.” Formerly, cannabis treatment had been allowed for diagnoses of “intractable pain.” The change took effect in August 2020.
• Executive Order by Governor Parson, of Missouri, covering first responders (including ER technicians), who contract COVID-19, but not others.
• Amendment to New Hampshire’s Act [see , NH RSA 281 A:2, XI], effective July 1, 2019, to provide “injury” or “personal injury” shall not include disease or death resulting from stress without physical manifestation, unless the employee meets the statutory definition of an “emergency response/public safety worker.” Moreover, effective January 1, 2021, first responders in New Hampshire will be favored with a presumption of compensability related to claims of Acute Stress Disorder and Post-Traumatic Stress Disorder.
• Enactment in New Jersey of a bill that increases the amount of workers’ compensation benefits paid for injuries producing loss of function to the hand and foot. The new law also provides modest increases in awards for loss of function of the fingers.
• Establishment of rebuttable presumption of compensability in New Mexico favoring specified state employees and volunteers [see Executive Order 2020-025, issued on April 23, 2020 by Governor Grisham.
• Establishment of rebuttable presumption of compensability in North Dakota for specified first responders, health care workers and all occupations included under N.D.C.C. § 65-01-02(11)(b)(1) who are exposed to COVID-19 in the course of employment [see Executive Order 2020-12, dated March 25, 2020, signed by Governor Burgum, effective March 13, 2020]. Subsequently, Executive Order, 2020-12.1 extended that presumption to funeral home personnel.
• Reduction in the Oklahoma statute of limitations to one year from the date of injury or six months from the date of the last payment of benefits.
• Expansion of workers’ compensation benefits to first responders by providing them with a rebuttable presumption of compensability as to COVID-19 claims.
• Extended compensation in Pennsylvania on April 29, 2020, via Act 17, for certain categories of frontline workers, including Police Officers, Firefighters, and other workers covered under the Enforcement Officer Disability Benefits Law (also known as the Heart and Lung Act), who have contracted or are diagnosed with COVID-19, and/or who are subject to quarantine resulting from exposure to COVID-19, and, therefore, are rendered incapacitated from performing their normal job activities. The compensation benefits are limited to a period of sixty (60) days and the infected individuals are not required to prove that they have contracted COVID-19 in the performance of their duties in order to receive these compensation benefits.
• Amendment to Texas Labor Code Section 408.0043, effective 09/01/19, requiring that peer review, utilization review and independent review of health care services to injured employees must be performed by doctors of “the same or a similar specialty” as the requesting physician. Another amendment to the Texas Labor Code makes PTSD caused by cumulative trauma compensable for first responders.
• Provision, via Vermont’s S.342, signed by Governor Scott on July 13, 2020, of a presumption of compensability to certain Vermont “front line” employees [firefighters, police officers, EMTs, health care workers, correctional officers, workers in long-term care facilities, child care workers, home health care workers funeral home workers and any “worker performing services that the Commissioner determines place the worker at a similarly elevated risk of being exposed to or contracting COVID-19 as the other occupations listed.”] For an employee who is not a front line worker, the presumption of compensability will apply if the worker receives a positive laboratory test for COVID-19 or a medical diagnosis of COVID19 within 14 days of being exposed to someone at work with COVI19.
• Enactment of new provision in Code of Virginia [§65.2-107 (2020, as amended)] so as to provide that PTSD is compensable for certain law enforcement officers and firefighters if a mental health professional examines the respective employee and diagnoses the post-traumatic stress disorder as a result of the individual’s undergoing a “qualifying event.”
• Changes in Washington’s method of determining penalties associated with a self-insured employer’s failure to pay benefits [see Substitute House Bill 2409]. Penalties are now to be calculated per occurrence, as opposed to being calculated based on the aggregate amount due at the time a penalty request is made. The amount of the penalty is to be set by the Department based upon a weighing of various factors in each individual case. Although the Department has some discretion in the calculation, penalties are capped.
• Enactment of a new provision in Wisconsin’s Workers’ Compensation Act [see §102.03(6), Wis. Stats.], effective April 15, 2020, establishing a presumption of compensability in favor of “first responders” [employees or volunteer employees that provides fire-fighting, law enforcement, or medical treatment of COVID-19].
• Altering Wyoming’s burden of proof [see amended W.S. § 27-14-102(a)(xi)(A)] with regard to COVID-19 claims such that, for any employee covered under the Act, it shall be presumed that the risk of contracting COVID-19 was increased by the nature of the employment. The modification is, however, limited to the year 2020.
• Clarification of Wyoming’s mental injury statute, which generally allows first responders to recover, without the need to show bodily injury. Effective July 1, 2020, the statute now defines first responders as peace officers, firefighters, search and rescue personnel, and ambulance personnel [see W.S. § 27-14-102(a)(xi)(J)(xxxi)].

Interesting spotlight cases include:

• Alaska: Employer Given Broad Access to Claimant’s Mental Health Records [see Leigh v. Alaska Children’s Servs., 2020 Alas. LEXIS 78 (July 10, 2020)].
• Arizona: Unusual Stress, Not Unusual Event, Key to Deputy’s Entitlement to PTSD Benefits [see France v. Industrial Comm’n of Ariz., 460 P.3d 1253 (Ariz. Ct. App. 2020)].
• Arkansas: Positive Drug Test Dooms Worker’s Injury Claim[see Allen v. Employbridge Holding Co., 2020 Ark. App. 127, 594 S.W.3d 165 (2020)].
• California: Court Affirms $2.9 Million Judgment Against Employer For Mishandling Immigration Case [see Reynaud v. Technicolor Creative Services USA, Inc., 46 Cal. App. 5th 1007, 85 Cal. Comp. Cases 281 (2d App. Dist., Div. 2, 2020)].
• California: California’s Guaranty Fund For Insolvent Carriers Need Not Reimburse CMS [see California Ins. Guar. Ass’n v. Azar, 2019 U.S. App. 30339 (9th Cir. Oct. 10, 2019)].
• District of Columbia: Employer Must Use Targeted Evidence to Rebut Presumption of Compensability [see Ramos v. District of Columbia Dep’t of Empl. Servs., 227 A.3d 1108 (D.C. Ct. App. 2020)].
• District of Columbia: Law Firm’s Security Officer Could Not Sue Firm in Tort for Alleged “Pain and Suffering” Injuries [Harley v. Covington & Burling, LLC, 2020 U.S. Dist. LEXIS 85820 (D. D.C., May 15, 2020)].
• Florida: Undocumented Worker Denied Medical Care Following Injury [see Hernandez v. Food Mkt. Corp., 282 So. 3d 1005 (Fla. 1st DCA 2019)].
• Florida: JCC Must Be Careful in Making Findings Contrary to EMA’s Opinion [see Olvera v. Hernandez Constr. of SW Fla. Inc., 283 So. 3d 447 (Fla. 1st DCA 2019)].
• Florida: Presumption of Correctness Attributed to EMA is not an Unconstitutional Violation of Separation of Power [see De Jesus Abreu v. Riverland Elem. Sch., 2019 Fla. App. LEXIS 9379 (1st DCA, June 18, 2019), rev. denied, 2019 Fla. LEXIS 2074 (Fla., Nov. 22, 2019)].
• Georgia: Estate of Employee Shot and Killed in Abortive Robbery in Parking Lot May Sue Employer [see Smith v. Camarena, 2019 Ga. App. LEXIS 631 (Oct. 30, 2019)].
• Georgia: Temporary Employee May Not Sue “Regular” Employee of Borrowing Employer in Tort [see Sprowson v. Villalobos, 841 S.E.2d 453 (Ga. Ct. App. 2020)].
• Georgia: Divided High Court Says Injury During Unpaid Lunch Break Was Compensable [see Frett v. State Farm Employee Workers’ Comp., 2020 Ga. LEXIS 458 (June 16, 2020)].
• Hawaii: Pointing to Other, “Potential” Causes is Insufficient to Overcome Hawaii’s Presumption of Compensability [see Cadiz v. QSI, Inc., 2020 Haw. LEXIS 200 (June 30, 2020)].
• Idaho: Split Supreme Court Adopts Reckless Standard in Intentional Tort Cases [see Gomez v. Crookham Co., 2019 Ida. LEXIS 238 (Dec. 20, 2019)].
• Illinois: Medical care providers may not reach workers’ compensation settlement proceeds [see In re Hernandez, 2020 IL 124661, 2020 Ill. LEXIS 5 (Jan. 24, 2020)].
• Illinois: Civil Action Under Illinois Biometric Information Privacy Act Not Barred by Exclusivity [see Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 104795 (N.D., Ill. June 16, 2020)].
• Iowa: Modest Deviation from Ordinary Route Was Insufficient to Remove In-Home Healthcare Nurse From Her Employment [see Carroll Area Nursing Servs. v. Malloy, 2019 Iowa App. LEXIS 663 (July 24, 2019)].
• Louisiana: Non-Verified Drug Test Wholly Inadmissible [see Parson v. Truck Parts & Equip., Inc., 2019-00743 (La. 10/01/19), 2019 La. LEXIS 2437 (Oct. 1, 2019)].
• Maryland: No Subrogation Lien Allowed Against Worker’s Medical Malpractice Settlement [see Baltimore Cty. v. Ulrich, 2020 Md. App. LEXIS 77 (Jan. 30, 2020)].
• Maryland: Court Extends Retaliatory Discharge Protections to Retaliatory Non-Renewal of Employment Contract [see Miller-Phoenix v. Baltimore City Bd. of Sch. Comm’rs, 246 Md. App. 286, 228 A.3d 809 (2020)].
• Mississippi: Unpaid Child Support Lien Does Not Attach to Death Benefits Where Deceased “Father” Gave Up Parental Rights [see Young ex rel. Heirs of Tewksbury v. Air Masters Mech., Inc., 294 So. 3d 1172 (Miss. 2020)].
• Missouri: Injuries at Doctor’s Office Did Not Arise Out of and in Course of Employment [see Schoen v. Mid-Missouri Mental Health Ctr., 597 S.W.3d 657 (Mo. 2020)].
• New Hampshire: Death from Drug Overdose Found Not Compensable [see Appeal of Estate of Quinn, 2019 N.H. LEXIS 171 (Aug. 20, 2019)].
• New Jersey: Court Affirms Order Requiring Employer to Reimburse Employee for Medical Marijuana Costs [see Hager v. M&K Construction, 2020 N.J. Super. LEXIS 4 (Jan. 13, 2019)].
• New York: Death Benefits Awarded in Spite of Worker’s Suicide [see Matter of Meager v. Saratoga County Sewer Dist., 2020 N.Y. App. Div. LEXIS 4310 (3d Dept. July 23, 2020)].
• New York: Court Issues First Opinion Re: Medical Marijuana [see Matter of Kluge v. Town of Tonawanda, 2019 N.Y. App. Div. LEXIS 7510 (3d Dept. Oct. 17, 2019)].
• New York: Attorney Fees Are Not to be Based Upon Amount of Recovery [see Matter of Oshier v. New York State Dept. of Corr. & Community Supervision, 180 A.D.3d 1114, 118 N.Y.S.3d 317 (3d Dept. 2020)].
• New York: Board Was Empowered to Promulgate Non-Acute Pain Medical Treatment Guidelines [see Matter of McKay v. Southampton Hosp., 2020 N.Y. App. Div. LEXIS 4096 (3d Dept. July 16, 2020)].
• Ohio: Snellen Fraction (20/20 vs. 20/100) May Not Solely Be Used to Determine Vision Loss [see State ex rel. Beyer v. Autoneum N. Am., 2019-Ohio-3714, 2019 Ohio LEXIS 1823 (Sept. 17, 2019)].
• Oklahoma: Subrogation Statute Does Not Violate State’s Constitution [see Akins v. C & J Energy Servs., 2019 U.S. Dist. LEXIS 13248 (W.D. Okla. Aug. 7, 2019)].
• Pennsylvania: “Protz Fix” Passes Constitutional Muster [see Pennsylvania AFL-CIO v. Commonwealth, 2019 Pa. Commw. LEXIS 913 (Oct. 11, 2019)].
• Tennessee: Awareness of Danger Does Not Equal Intent to Injure under TN Law [see Henry v. CMBB, LLC, 2020 U.S. App. LEXIS 1494 (Jan. 14, 2020)].
• Texas: High Court Clarifies Texas Version of “Substantially Certain” Test in Intentional Tort Actions Against Employers [see Mo-Vac Serv. Co., Inc. v. Escobedo, 2020 Tex. LEXIS 523 (June 12, 2020)].
• Virginia: Court Agrees Failure to Wear Seatbelt is Willful Misconduct [see Mizelle v. Holiday Ice, 2020 Va. App. LEXIS 68 (Mar. 10, 2020)].

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.

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