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Workers' Compensation

Foreword to Workers' Compensation Emerging Issues Analysis, 2021 Edition

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:

  • Alaska: The presumption of compensability for first responders exposed to COVID-19 in the course of employment and who received a COVID-19 diagnosis expired in November 2020 and was not renewed.
  • Arizona: SB 1451 extends to fire investigators, the firefighter cancer presumption of compensability and adds ovarian cancer and breast cancer to the qualifying cancer types. Modifies cancer presumption requirements relating to firefighters and peace officers. Allows an insurer to increase statewide rates and adjust premiums associated with firefighter and fire investigator presumption claims.
  • Arkansas: In a series of Executive Orders, Gov. ASA Hutchinson extended the exclusive jurisdiction of Workers’ Compensation to all employees claiming illness due to COVID-19. These provisions were codified based on an ongoing emergency and included in the 2021 revisions to the Workers’ Compensation code until at least March of 2023, with retroactivity being applied back to Mach of 2020. Separately, for purposes of occupational diseases, A.C.A. § 11-9-601(e)(3) was amended so as to exclude COVID-19 and SARS-CoV-2 from those “ordinary disease[s] of life to which the general public is exposed.” Without that amendment, COVID-19 claims would likely not have qualified as occupational diseases in the state.
  • California: On June 17, 2021, the California Occupational Safety and Health Standard Board voted to adopt revised COVID-19 Prevention Emergency Temporary Standards (ETS) (https://www.dir.ca.gov/oshsb/documents/Jun172021-COVID-19-Prevention-Emergency-txtcourtesy-Readoption.pdf). Governor Gavin Newson signed an executive order allowing the revisions to take place immediately (https://www.gov.ca.gov/wp-content/uploads/2021/06/6.17.21-ETS-EO-N-09-21.pdf), bypassing the usual 10-day approval period for the State Office of Administrative Law.
  • California: Recently enacted AB 845 creates a disputable presumption, applicable to retirement systems regulated by the California Public Employees’ Pension Reform Act of 2013 (PEPRA) and to specified members in those systems, that would be applied to disability retirements on the basis, in whole or in part, of a COVID-19-related illness. Essentially, the bill presumes the disability arose out of, or in the course of the member’s employment. The presumption takes effect immediately and ends January 1, 2023.
  • Florida: On March 29, 2021 Governor Ron DeSantis signed into law CS/SB 72—a COVID-19 related claim immunity shield. In order for a plaintiff to file a complaint seeking damages for a COVID-19 related illness or death, the complaint must be pled with particularity; and the complaint must attach an affidavit signed by a physician actively licensed in Florida, which attests within a reasonable degree of medical certainty that the plaintiff’s COVID-19 related damages, injury, or death occurred as a result of defendant’s acts or omissions. Once this pleading requirement is met, the court must hold an evidentiary hearing and determine “as a matter of law” whether the defendant made a “good faith effort to substantially comply with authoritative or controlling government issued health standards or guidance at the time the cause of action accrued.” If the plaintiff cannot meet that evidentiary burden, the action is dismissed. If the burden is met, the case will proceed to trial, but the plaintiff is charged with proving by clear and convincing evidence that the defendant acted with gross negligence. While this new law will not be applied by Florida workers’ compensation courts, it may have an impact on cases where an employer does not have workers’ compensation immunity.
  • Illinois: Last year’s rebuttal presumption under Section 1(g) in favor of finding COVID-19 exposures were work-related for essential workers expired June 31, 2021. Now, the burden shifts back to the employee who contracted COVID-19 to show that it was more probable than not that the COVID-19 virus was contracted at work.
  • Kansas: In an interesting decision by the Kansas Workers Compensation Appeals Board, the Board affirmed an administrative law judge’s decision awarding workers’ compensation benefits for a worker who contended that he was exposed to COVID-19 at a regularly scheduled medical appointment for physical therapy for his compensable shoulder injury. The Board noted that Kansas law recognizes that when a primary work injury (here a shoulder injury) is shown to be compensable, every natural consequence that flows from that injury—including a new and distinct injury—is compensable if it is a direct and natural consequence of the primary injury.
  • Minnesota: As noted in last year’s Minnesota update, the rebuttable presumption of compensability for employees in certain professions who contract COVID-19 was set to expire in May 2021. The Legislature extended that presumption to dates of injury on or before December 31, 2021.
  • Nebraska: LB 256 expands the circumstances when a claim under the Nebraska Workers' Compensation Act can be paid in lump-sum payments rather than periodic payments. Under current law, when an employer and an injured employee or their dependents agree that an amount due should be paid in a lump-sum payment, the settlement must be submitted for approval to the Nebraska Workers' Compensation Court if the employee is eligible or will soon become eligible for Medicare. LB 256 removes the need to submit a settlement for approval for lump-sum payments if future health care services are not a part of the settlement.
  • Nevada: Existing law provides that in certain circumstances compensation is not payable to employees for an injury that occurred while an employee was under the influence of a controlled or prohibited substance unless the employee can prove that being under the influence of a controlled or prohibited substance was not the proximate cause of the injury. Existing law further specifies that an employee is under the influence of a controlled or prohibited substance for the purpose of such a provision when the employee has an amount of certain prohibited substances, including marijuana or marijuana metabolite, in his or her system that is equal to or greater than the amount that prohibits a person from driving or being in actual physical control of a vehicle on a highway or on premises to which the public has access and for which the employee does not have a current and lawful prescription [see NRS 616C.230]. Section 17 of AB 400 retains the amounts of such prohibited substances that are currently set forth in existing law for the purpose of determining whether an employee is under the influence of a prohibited substance but removes the specified amount of marijuana metabolite.
  • New Hampshire: As reported in last year’s WCEIA volume, in April 2020, the Governor issued an Emergency Order, applicable to First Responders, that provided for a prima facie presumption that the diagnosis of COVID-19 is work-related. The Emergency Order expired on June 21, 2021, and so too did the presumption. To be eligible, a First Responder must have tested positive for COVID-19 and reported his or her claim to the Department of Health and Human Services.
  • New Jersey: On September 14, 2020, Governor Phil Murphy signed S2380 into law. The bill created a legal presumption of compensability for “essential employees,” including public safety workers and virtually all health care workers who file COVID-19 workers’ compensation claims during the COVID-19 state of emergency. Employees qualify as essential workers as long as they have continued working during the pandemic and interact with the public. This new law requires New Jersey Judges of Compensation to presume that any COVID-19 claim filed by an essential employee who works with the public to be found to be work related unless the employer could rebut the claim by “clear and convincing evidence.”
  • New York: On June 29, 2021, the Workers’ Compensation Board lifted many of the modifications to workers’ compensation practice in light of the expiration of the State of Emergency declared in connection with the COVID-19 pandemic, although some have not yet been relieved.
  • Oregon: The Oregon Legislature considered a bill that would have established presumptive compensability for COVID-19, as well as a bill that could have made significant changes to the workers’ compensation system this session, including the possibility of essentially banning self-insurance. In the end, neither bill was advanced out of committee, and no major changes were made.
  • Tennessee: Effective April 13, 2021, the Tennessee Legislature enacted a limited presumption for emergency rescue workers, which provides that an emergency rescue worker who suffers a condition or impairment that is caused by an infectious disease, is presumed to have a disability suffered in the line of duty, unless the contrary is shown by a preponderance of the evidence. Among the several conditions for the presumption to apply, the “infectious disease” must be either the human immunodeficiency virus, the Hepatitis C virus, or one that has been recognized as a pandemic by the World Health Organization (WHO) or U.S. Centers for Disease Control and Prevention (CDC), and for which the Tennessee governor has declared a state of emergency.
  • Texas: As a contextual note, Texas claimants who have a 15 percent or higher impairment rating are eligible for another category of benefits once their impairment income benefits (IIBs) run out—supplemental income benefits (SIBs). One way to show entitlement to SIBs per the statute and Division of Workers’ Compensation rules is to show an “active job search.” In March 2020, when the Texas Workforce Commission (TWC) suspended work search requirements for unemployment benefits recipients due to COVID-19, the Division in turn suspended work search requirements for workers’ compensation claimants seeking to qualify for SIBs. This meant that claimants were not required to demonstrate an active effort to obtain employment beginning March 2020, in order to be entitled to SIBs. Their failure to actively search for work could not be a basis for an insurance carrier to dispute entitlement to SIBs. The Division also tied the TWC’s suspension of work search requirements to its decision to suspend designated doctor exams (DDEs) and required medical examinations (RMEs) addressing disability or a claimant's ability to return to work. The TWC reinstated the work search requirements for unemployment benefits as of November 1, 2020. But the Division continued, without explanation, to suspend the SIBs work search requirement for 9 more months, finally reinstating the requirement as of August 2, 2021. The Division will also again allow designated doctors to address issues related to disability and return-to-work status as of that date.
  • Virginia: On January 27, 2021, Governor Northam enacted permanent COVID-19 workplace standards: Infectious Disease Prevention of the SARS-CoV-2 Virus that causes COVID-19, 16VAC25-2220. These standards apply to all employers subject to Virginia Occupational Safety and Health’s (“VOSH”) jurisdiction. Occupations are classified based on “exposure risk level” and depending on the level, the employer must adhere to various practices based on the risk level of a given occupation. Based on the risk of transmission of the virus, an occupation can have a “very high,” “high,” “medium,” and “lower” exposure risk level. Employers must ensure that employees practice social distancing in the workplace by making announcements, posting signs, decreasing the density of employees, and adhering to Virginia’s occupancy limits. Finally, employers must report to the Virginia Department of Health if two or more employees test positive for COVID-19 within a fourteen-day period.
  • Virginia: The General Assembly of Virginia enacted legislature that came into effect on July 1, 2021. Virginia Code Section 65.2-402.1 was amended to establish a presumption of a compensable occupational disease for healthcare providers and first responders who contracted COVID-19. Additionally, the General Assembly of Virginia enacted a presumption of a compensable occupational disease for firefighters, law enforcement officers, correctional officers, and regional jail officers who contracted COVID-19 as well.
  • Washington: SB 5115 and SB 5190 created two new occupational disease presumptions related to COVID-19 and potentially future infectious diseases as well. SB 5115 covers a broad array of “frontline employees” as defined in the law, while SB 5190 covers the much narrower class of health care workers. The two presumptions apply only during a declared public health emergency involving infectious disease, so for now it appears to be limited to COVID-19 claims. Of note, SB 5115 also includes some employer reporting requirements for outbreaks and other required information for larger employers.
  • West Virginia: The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021. Specifically, Senate Bill 275 was enacted to create an Intermediate Court of Appeals for West Virginia. It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.
  • Wyoming: The 66th Legislature extended the presumption afforded by W.S. § 27-14-102(a)(xi)(A) to March 2022. It maintained the language from the 2020 amendment, which states, “it shall be presumed that the risk of contracting Covid-19 was increased by the nature of the employment.” The legislature maintained its 2020 amendment to W.S. § 27-14-201(u), which was created to reduce the burden on employers by prohibiting the state from charging to the employer’s experience rating the coverage provided for COVID-19 claims.

Interesting spotlight cases include:

  • Alabama: Unscheduled Award Found Appropriate for Worker With Complex Regional Pain Syndrome [see Turner v. Robert J. Baggett, Inc., 2021 Ala. Civ. App. LEXIS 7 (Feb. 5, 2021)].
  • Arizona: Police Officer’s PTSD Claim is Not Compensable [see Matthews v. Industrial Comm’n of Ariz., 2021 Ariz. App. LEXIS 129 (July 9, 2021).
  • California: Exclusive Remedy Rule Bars IIED Claim For Failure to Provide Adequate COVID-19 Protections [see Brooks v. Corecivic of Tenn. LLC, 2020 U.S. Dist. LEXIS 162429 (S.D. Cal., Sept. 4, 2020)].
  • Colorado: Physicians Have Flexibility in Setting Impairment Ratings, AMA Guides Are “Starting Point” [see Fisher v. Indus. Claim Appeals Office, 2021 COA 27, 2021 Colo. App. LEXIS 337 (Mar 4, 2021)].
  • Connecticut: “New” Heart Received Via Cardiac Transplant is Not a Prosthetic Device [see Vitti v. City of Milford, 2020 Conn. LEXIS 192 (Aug. 24, 2020)].
  • Florida: IME Opinions Can Support Claims for Specific Medical Benefits [see Thompson v. Escambia Cty. Sch. Board/Escambia Cty. Sch. Dist., 302 So. 3d 936 (Fla. 1st DCA 2020)].
  • Florida: Lower Court Kicks Important One-Time Change in Physician Issue to Supreme Court [see City of Bartow v. Flores, 301 So. 3d 1091 (Fla. 1st DCA, 2020)].
  • Illinois: Intervening Insurer is Not a Party to Injured Worker's Third-Party Tort Suit [see Burdess v. Cottrell, Inc., 2020 IL App (5th) 190279, 2020 Ill. App. LEXIS 810 (Dec. 1, 2020)].
  • Illinois: Minor Deviation Results in No Recovery for Trip and Fall Injury [see Purcell v. Illinois Workers’ Comp. Comm’n, 2021 IL App (4th) 200359WC, 2021 IL App (4th) 200359W, 2021 Ill. App. LEXIS 206  (Apr. 27, 2021)].
  • Illinois: Injuries Arising From “Common Bodily Movements” May be Compensable [see McAllister v. Illinois Workers’ Comp. Comm’n, 2020 IL 124848, 2020 Ill. LEXIS 561 (Sept. 24, 2020)].
  • Iowa: $1 Million Lump Sum Approved by Court [see United Fire & Cas. Co. v. Hessenius, 2020 Iowa App. LEXIS 1127 (Dec. 16, 2020)].
  • Kansas: 6th Edition of AMA Guides to Impairment Passes Constitutional Muster [see Johnson v. United States Food Serv., 2021 Kan. LEXIS 2 (Jan. 8, 2021)].
  • Kentucky: Staffing Company Cannot Be Penalized for Host Company’s Safety Violations [see Maysey v. Express Servs., 2021 Ky. LEXIS 123 (Mar. 25, 2021)].
  • Louisiana: Court Reiterates That Employer, Not Employee, Chooses Medication Fulfillment [see Corona v. Louisiana Corr. Inst. for Women, 2020-0260 (La. App. 1 Cir. 11/06/2020, 2020 La. App. LEXIS 1586].
  • Massachusetts: Insurer Need Not Reimburse Injured Worker for Medical Marijuana [see Wright’s Case, 486 Mass. 98, 156 N.E.3d 161 (2020)].
  • Mississippi: Increased Wages After Injury Does Not Always Disqualify Worker from Wage Loss Benefits [see Chambers v. Howard Indus., 2021 Miss. App. LEXIS 13 (Jan. 12, 2021)].
  • Nevada: State Supreme Court Repeats Rule Protecting Undocumented Workers [see Associated Risk Mgmt., Inc. v. Ibanez, 478 P.3d 372 (Nev. 2020)].
  • New Hampshire: Requiring Reimbursement for Medical Marijuana is Not Aiding and Abetting Federal Crime [see Appeal of Panaggio, 2021 N.H. LEXIS 20 (Mar. 2, 2021)].
  • New Jersey: High Court Says Employer May Have to Reimburse Employee for Medical Marijuana [see Hager v. M&K Construction, 247 A.3d 864 (N.J. 2021)].
  • New York: Court Approves Treatment Variance for Medical Marijuana [see Matter of Quigley v. Village of E. Aurora, 2021 N.Y. App. Div. LEXIS 1223 (3d Dept. Feb 25, 2021)].
  • New York: Court Reverses Board's Decision Disqualifying Undocumented Worker From Benefits [see Matter of Policarpio v. Rally Restoration Corp., 2020 N.Y. App. Div. LEXIS 7635 (Dec. 10, 2020)].
  • New York: Claimant’s Estate Not Entitled to Lump Sum Award for Posthumous SLU Award [see Matter of Estate of Youngjohn v. Berry Plastics Corp., 2021 N.Y. LEXIS 547 (Apr. 1, 2021)].
  • New York: Board Errs in Utilizing “Novel” Standard for Employees Working From Home [see Matter of Capraro v Matrix Absence Mgt., 2020 N.Y. App. Div. LEXIS 6171] (3d Dept., Oct. 22, 2020)].
  • North Carolina: No Sanctions Against Girlfriend Who Tried to Overturn Existing Law [see West v. Hoyle’s Tire & Axle, LLC, 2021-NCCOA-151, 2021 N.C. App. LEXIS 153 (Apr. 14, 2021)].
  • North Carolina: Settlement Proceeds Lose Exempt Status in NC When Used to Purchase Land and Mobile Home [see In re Usery, 2020 Bankr. LEXIS 2765 (W.D. N.C. Oct. 5, 2020)].
  • Ohio: Compensability of “Flow-Through” Injury Does Not Depend Upon its Foreseeability [see Dubose v. McCloud, 2020 Ohio App. LEXIS 3858 (Oct. 21, 2020)].
  • Oklahoma: Supreme Court Says Non-Dependent Parents May Sue Employer in Tort [see Whipple v. Phillips & Sons Trucking, 2020 OK 75, 2020 Okla. LEXIS 81 (Sept. 21, 2020)].
  • Pennsylvania: Person Held in Jail Awaiting Trial is not Incarcerated for Purposes of Disqualification [see Sadler v. Workers’ Comp. Appeal Bd., 2021 Pa. LEXIS 327 (Jan. 27, 2020)].
  • South Carolina: Using “Bunkhouse Rule,” Court Affirms Award of Death Benefits to Murdered Motel Employee [see Patel v. BVM Motel, LLC, 2021 S.C. App. LEXIS 31 (Mar. 31, 2021)].
  • Tennessee: Pain Alone Cannot Constitute Second Injury; No Disqualification After Violating Lifting Weight Limits [see Paris v. McKee Foods Corp., 2021 Tenn. LEXIS 53 (Feb. 16, 2021), aff’d, adopted, 2021 Tenn. LEXIS 54 (Feb. 16, 2021)].
  • Texas: Employee's Tort Action Against Non-Conforming Employer May Not be Removed [see Kaspar v. Ryder Integrated Logistics, Inc., 2020 U.S. Dist. LEXIS 214581 (W.D. Tex. Nov. 17, 2020)].
  • Virginia: Employee Staffing Firm Not Liable for Safety Violations Where Borrowing Employer Had Control [see Department of Labor & Indus. v. Laborworks Indus. Staffing Specialists, Inc., 2020 Wash. App. LEXIS 2304 (Aug. 17, 2020)].
  • Virginia: No Compensable “Injury” Unless There is “Mechanical or Structural Change” in Body Part [see Alexandria City Pub. Sch. v. Handel, 2020 Va. LEXIS 115 (Oct. 15, 2020)].
  • West Virginia: Robbery at Gunpoint Found Insufficient to Support PTSD Claim [see Black v. Same Old Place, Inc., 2021 W. Va. LEXIS 54 (Feb. 19, 2021)].
  • Wisconsin: Employee’s Tort Action Against Comp Insurer Barred by Exclusive Remedy [see Graef v. Continental Indem. Co., 2021 WI 45, 397 Wis. 2d 75, 959 N.W.2d 628 (2021)].
  • Wyoming: Injury Claim From Flesh-Eating Bacterial Infection Not Barred by Special “Communicable Disease” Limitation [see In re Worker’s Comp. Claim of Vinson, 2020 Wyo. LEXIS 146 (Sept. 28, 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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