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By Thomas A. Robinson, J.D., Co-Editor-in-Chief
As my colleagues and I prepared this annual volume for production in mid-September, we were reminded just how disruptive the COVID-19 pandemic has been during the past year and one-half. Six months, ago, as we began to sketch out the volume, we’d all been vaccinated. The vaccines were working. “The numbers” were improving. There were fewer hospitalizations and many fewer deaths. In much of my American South, we were enjoying “inside” restaurant dining—without masks.
In April 2021, we all hoped that we’d be well on our way back to some form of “new normal” by the beginning of the fourth calendar quarter. We said to ourselves and to each other, “By Autumn, most folks will be back in their offices and workplaces, at least for significant periods of the work week.” And so, we settled on the subtitle for this annual monograph, “Back to Work During a Pandemic.”
It was as good a choice as any. “Bring back the good ole days,” said one of my friends, “when your workspace wasn’t within five feet of your refrigerator—when your office chair had solid lumbar support.” Indeed, one recent study has revealed a significant increase in back pain, significant weight gain, and an increase in the consumption of junk food among office workers who switched to working from home during the pandemic [see Mehmet Akif Guler, et al., “Working from Home During A Pandemic: Investigation of the Impact of COVID-19 on Employee Health and Productivity,” Journal of Occupational and Environmental Medicine, DOI: 10.1087/JOM.0000000000002277].
As this volume goes to print, folks are beginning to trickle back to the office and workplace in some portions of the U.S. For example, as the Fall semester began at nearby Duke University, more than a few academic departments began to schedule “in-house” meeting days, one day each week. But along came the so-called “Delta variant.” The infection and hospitalization numbers have worsened. Mask rules have tightened. Segments of the economy are worried that another round of closings is upon us.
We’ve pushed through many challenges during these past months. Most assuredly, there are other challenges ahead. Who knows when we will see some semblance of true order restored? In the meantime, we offer this volume as a resource. As noted below, it contains a number of articles and materials on COVID-19. We trust it isn’t one-dimensional, however. We supply reports on other topics from around our country.
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.
B. COVID-19 Pandemic Issues
In § 2, noted legal and econometric authority, John F. Burton, Jr., offers his extensive experience and keen insights with his detailed commentary entitled, “COVID-19 as an Occupational Disease: The Challenge for Workers’ Compensation.” In his carefully-crafted piece, Dr. Burton initially provides us with a concise review of the development of early workers’ compensation law. That context is vitally important if we are to understand the challenges the workers’ compensation world faces as it meets the COVID-19 pandemic head-on. He describes how some states sought to erect presumptions of compensability, either through executive order or specific legislation, and he offers interesting econometric data on the subsequent experiences in many of those states. He describes some of the difficulties claimants face as they seek to recover workers’ compensation benefits for an “occupational” disease that is not tied to a particular occupation, and which is pervasive in society at large—the definition of “pandemic.” He offers insights into OSHA’s interaction with employers and employees regarding COVID-19, and he provides analysis into President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety. Finally, he posits what he calls “A Panoramic Strategy for Dealing with the COVID-19 Pandemic.”
Professor Michael C. Duff (Winston S. Howard Distinguished Professor of Law, University of Wyoming College of Law) offers us an equally enlightening article entitled, “The Functional Operation of Workers’ Compensation COVID-19 Presumptions” [see § 3]. He stresses that before we debate the efficacy of COVID-19 presumptions, we should know how they operate functionally. Professor Duff points out the danger in thinking too narrowly; there are two distinct types of presumptions, not just one. He offers an excellent description of the judicial give and take required to resolve the presumption issue.
In “Workers’ Compensation Medical Treatment in the COVID-19 Era” [see § 4], Roger Rabb provides us with an overview of a recent study published by the Workers’ Compensation Research Institute (WCRI) that analyzed important claims data from 27 states, representing some 68 percent of the workers’ compensation benefits paid in the U.S. during the relevant study period. According to the study, injured workers may have avoided some types of necessary medical services during the early months of the pandemic in order to reduce the risk of COVID-19 exposure. The study hints that the long-range effects of the pandemic may be much broader than we might have initially imagined, as recovery periods during the pandemic may be prolonged, and return to work delayed.
In § 5, Rabb examines a separate WCRI study in his analysis entitled, “Examining the Early Impacts of COVID-19 on Workers’ Compensation Claims.” The study notes decreasing numbers of claims between 2019 and 2020, even accounting for COVID-19 claims in a number of the states studied. The researchers point out that additional study is necessary to draw any conclusions. For example, one factor may be the reluctance of injured workers to file claims in any but the more serious incidents out of concerns that they might contract COVID-19 during the treatment processes.
Well-known legal scholar, author, and, for the past several years, a presiding judge at the Workers’ Compensation Appeals Board, Los Angeles, Robert G. Rassp connects the dots between two somewhat disparate topics in his piece entitled, “COVID-19 Infection and the AMA Guides Fifth Edition” [see § 6]. Rassp offers up his experience in showing the interaction between the medical and the legal worlds, providing us with sufficient detail into the operation of the SARS-CoV-2 virus, without confusing the reader in the process. He sets out the issues involved in proving industrial causation and highlights the sorts of permanent impairments that can result from a COVID-19 infection.
My colleague of many years, Robin E. Kobayashi, examines an issue that has moved to the forefront in recent months—vaccine mandates. Her piece, “COVID-19 Vaccine Mandates During a Pandemic” [see § 7] analyzes a recent article published in the American Journal of Public Health highlighting the legal and public health policy issues related to employer-mandated vaccination. Prevention and persuasion, rather than compulsion, should be the hallmarks of employers’ policies, say the authors of the AJPH article.
In my own piece in § 8, entitled, “COVID-19 and the Going and Coming Rule,” I argue that the huge increase in the number of employees working from home, coupled with the likelihood that many white-collar businesses will allow flexible working arrangements even after some workers return to the office, should result in fewer claims being disqualified on “going and coming” grounds. I point out that the classic going and coming rule is often misunderstood. In the majority of jurisdictions, it applies only where the employee has fixed hours and a fixed place of work. Under the newly crafted “flex” schedules, many employees will not have a fixed place of work and if the commissions, boards, and appellate courts follow existing case law, many injuries sustained while “traveling” to the employer’s facility will be compensable.
If your COVID-19 practice of working from home seems unkind to your waist measurement and your lower back, you should be interested in my piece entitled, “Gain Weight During Pandemic? Study Says You Aren’t Alone” [see § 9]. It focuses on a September 2021 study published in the Journal of Occupational and Environmental Medicine. The study reveals that office workers who switched to working from home during the COVID-19 pandemic have experienced significant weight gain connected to a decrease in physical activity and an increase in the consumption of junk food. Moreover, because many are working in less-than-ideal ergonomic conditions at home, there has been an up-tick in complaints of back pain.
As to COVID-19, the LexisNexis Editorial Staff offers two articles [see §§ 10, 11], “Economic Impact of COVID-19” and “Future Work, COVID-19 and Safety Issues.” These pieces provide an overview of two seminar sessions presented at the WCRI 37th Annual Issues and Research Conference that took place on March 23 and 24, 2021.
C. Other Emerging Issues
While COVID-19 has dominated the entire world during the past two years, other matters have continued to be important within the workers’ compensation medical/legal arena. This year’s WCEIA volume, therefore, offers a number of additional articles on topics unrelated to the pandemic.
One hot topic is marijuana—both medical and recreational. In “Recreational Marijuana Laws and the Workers' Compensation Implications for Older Adults: Analysis of NBER Study” [see § 12], Susan V. Hamilton offers her analysis of a recent study sponsored by the National Bureau of Economic Research (NBER), a non-profit research organization, evaluating whether state laws legalizing marijuana for recreational purposes affect work capacity, i.e., the ability to engage in paid employment, among “older working adults” (those aged 40 to 62 years). The study was conducted by university researchers and the RAND Corporation. Among the study’s findings: increases in marijuana use after the legalization of recreational marijuana coincides with meaningful reductions in the use of opioid medications and reductions in deaths related to opioid use.
In “WCRI Study Shows State Policy Changes Result in Reduced Use of Opioids” [see § 13], I offer my analysis of a recent study published by WCRI that suggests that relatively recent implementation by some states of (1) must-access prescription drug monitoring programs (PDMPs) related to opioids, and (2) policies setting limits on initial opioid prescriptions, have contributed to declines overall in opioid utilization and in the morphine milligram equivalent amount (MME) of opioids distributed in workers’ compensation claims. As I indicate in my piece, the WCRI study gives credence to the position, fostered by many in the medical-legal community, that the provision of opioids among injured workers should be more carefully managed and that when managed, the results can be favorable.
In another article, “The Latest on the AMA Guides and Workers’ Compensation” [see § 14], I describe the AMA’s new publication process related to “the Guides.” Beginning this year (2021), utilizing a 13-member panel of experts, the AMA will curate content updates so as to assure that the Guides reflect current evidence-based medical practice. The Guides (6th Edition, as modified) will be available in electronic format. I also provide case summaries for approximately a dozen recent decisions in which the AMA Guides formed an important part of the legal analysis.
My North Carolina colleagues, Tracey Jones and Lindsay A. Underwood, from Raleigh’s Teague Campbell Dennis & Gotham, LLP, offer important analysis of an issue that is not limited to the Tar Heel State in § 15. Their article, “Early Trends in North Carolina Extended Benefits Cases and How Comparable Jurisdictions in the Southeast Have Analyzed Similar Statutory Caps,” discusses what is necessary to establish entitlement to benefits beyond North Carolina’s 500-week cap (some other states have differing caps). They analyze recent case law in North Carolina. They join that with analysis of caps on total disability in other states in the Southeast, and they provide practical takeaways for jurisdictions with statutory caps.
There is an adage within the workers’ compensation world: “Trends—good or bad—often begin in California.” Indeed, while “our world” is made up of 50 (actually more) competing jurisdictions, each with a workers’ compensation act of its own, it is a short-sighted practitioner or insurance expert who remains concerned only with her/his state. California Presiding Judge Robert Rassp (identified above), offers important insights in three separate articles [see §§ 16-18] that are centered in California law, but which have implications well beyond the Golden State. In “Interpreters and Us,” Rassp offers insights he gained at a WorkCompCentral seminar. Interpreters are, of course, found in many state proceedings beyond California. Practitioners can profit from the read.
In “Questions Doctors Ask Us: California Law and the AMA Guides Fifth Edition,” Rassp puts the shoe on the other foot, so to speak. He provides us with questions asked by doctors in some of their continuing medical education seminars. Finally, in his “Panel Wars! Nuances of Litigation in California over Selection, Specialty, and Role of Qualified Medical Evaluators in Represented Cases,” Rassp gives guidance in the tricky world of California QMEs. As many of you know, other states are moving toward similar processes. Rassp’s piece is a good read for those in other states, not just California.
With a final tip of the hat to the folks on the west coast, in § 19, I offer an opinion piece, “California Voters Tell Elected Officials to Leave Their Ride-Sharing Alone.” Readers will recall that Proposition 22, the California voter initiative, generally exempts Uber, Lyft, Doordash, and other app-based business enterprises from characterizing drivers (and some others) as employees. I describe the tug-of-war going on out West. I discuss the “control test” outlined in Larson’s Workers’ Compensation Law, §§ 61.02, 61.03, and 63.01, et seq., and state as my less than humble opinion that the former, restrictive California “ABC Test” is out of sync with workers’ compensation law that has existed for a century. I argue that the California voters apparently agree with me.
I also include as a special offering within this volume, my annual reflection on the unusual world within which we work and study. “The Top 10 Bizarre Workers’ Comp Cases for 2020” contains some “doozies” [see § 20].
Finally, in § 21, Susan Hamilton offers up an excellent review of Dr. Robert C. Larsen’s engaging and provocative book entitled, Wounded Workers: Tales from a Working Man’s Shrink. Many of you are familiar with Larsen, a/k/a “Dr. Bob.” He’s well-known in occupational medicine and workers’ compensation circles. Dr. Bob is a highly respected psychiatrist, a former clinical professor of psychiatry at the University of California San Francisco (UCSF), founder of the Center for Occupational Psychiatry, and a renowned Agreed Medical Evaluator. Hamilton tempts us with points she gleaned from her own read. Other workers’ compensation attorneys, insurance folks, and even those in the medical fields would enjoy getting a copy of their own.
Part II. State-by-State Legislative & Case Survey
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:
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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