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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.
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:
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.
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:
Interesting spotlight cases include:
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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