In day one of this two-day session at WCIvirtual 2020, law firms from the Workers’ Compensation Defense Institute (WCDI) discussed various employee injury trends and related laws in their states.
- Kyle K. Kinney – Miller, Christie & Kinney, PC (moderator)
- Emily Edwards – Manning & Kass, LLP – California
- Walter E. Harding – Boehl, Stopher & Graves, LLP – Kentucky
- Jeffrey C. Napolitano – Guilbeau, Ruli & Frieman – Louisiana
- James M. Anderson – Anderson, Crawley & Burke, PLLC – Mississippi
- Jordan Ensley – Latham, Steele, Lehman, PC – Oklahoma
- Robert D. Stokes – Flahive, Ogden & Latson – Texas
Remote Worker Injuries
More claims are being presented with employees that claim they were injured at home while they were working. We have to go back to determine if the injury happened within a risk environment related to some aspect of employment. When looking at the exclusive remedy defense to determine if the case is compensable, an employer that has control over the workspace typically is more liable. With less control, an employer is typically less liable. For instance, injuries related to tripping over a pet or something spilled by a child would be less compensable then a trip at the office. It also depends on the work rule, which determines how the employee is required to perform a job.
- Texas had a case in which an employee tripped and fell at home when they got up to get a pen. The court ruled that the activity violated the scope of the job, therefore was not compensable.
- Mississippi has no specific rules or statutes that addresses working from home. The usual rules would apply to those scenarios and claims would determined on a case-by-case basis. They do recognize the personal comfort doctrine. Falling in the shower preparing for work would probably not be compensable, but tripping over a file that you were working on might be compensable.
- Oklahoma does not have any statutes that address working from home. The personal comfort doctrine does address going to the restroom, getting a beverage and taking medicine. All claims are going to be harder to defend with no camera footage available.
- Louisiana also believes this will be a challenge. They have investigated claims, however, on witnessed accidents. They recommend going back to basics. Talk to the employer about possible work-from-home controls like time constraints and ergonomic requirements. This will help determine the course and scope, including if the environment was created by work or if the injury was personal nature. Next, question the employee to determine if the injury occurred within the employer’s controls or not. You may want to inspect the site (even virtually) if the injury sounds suspicious.
- Kentucky would take a similar approach. The most important thing is to get your statements from employer and employee, then search out past medical records. Many physicians know the forensics related to injuries and could shed more light.
- California has many requirements related to privacy rights, so entering homes might be difficult. They recommend outlined and strict ergonomic guidelines as to what creates an appropriate work environment. If the employee will provide a photo, you might be able to show if or if not the employee was following your guidelines.
- Louisiana has a lot of alcohol and drug consumption, with very specific statutes that address intoxication. The employee is required to have a written drug policy before you can require an employee to take a post-accident drug test. If under .05, it is determined that the employee was not intoxicated. If between .05 and .08, there is no presumption one-way or the other. If over .08, and the employee tests above .08 in a second test, you can presume intoxication. If the claimant refuses the test, there is a presumption that the claimant is intoxicated. Occasionally hospitals will take a drug test on their own and an employer may use those as proof of intoxication. If drinking is part of your job duties (i.e. as part of entertaining clients), the employer may not use that. In drug tests, sometimes prescription drugs will show up. If the claimant can prove that they are taking that drug as prescribed, it would be considered a negative test.
- Texas does not have to show anything other than a positive drug or alcohol test. Employees who test positive for intoxication are not entitled to compensation if they test positive, regardless if they are the driver or just a passenger.
- California has legalized both recreational and medical marijuana use. It does not mean, however, that an employee can come to work impaired. Employers can maintain their zero acceptance policies, but they still have the burden to prove intoxication at work. Marijuana remains in a system for weeks at a time, which makes it very difficult to prove proximate cause of injuries in connection with marijuana use.
- Kentucky does not recognize medical marijuana yet, but does have a new drug statute that spells out limits and impairment. They anticipate legalized marijuana soon, however.
- Oklahoma does have medical marijuana. The burden is on the employer to prove that intoxication caused an injury. It is a hard to prove due to several laws, including required impairment testing within 24 hours.
Psychological Claims & Presumptions
- Oklahoma has a statute that requires proof of physical injury to accompany PTSD claims. With a violent crime, however, employees do not have to provide physical injury proof. An example would be an employee held at gunpoint during a robbery.
- Kentucky requires a physical injury for a psychological claim as well.
- Alabama also requires physical injury for a psychological claim. Technically the psychological issues of post-traumatic stress have to link to the physical injury for it to be compensable.
- Mississippi has no laws addressing any special compensability for first-responder psychological claims. For all employees, there is a burden to prove mental/mental claims are due to extremely stressful circumstances, like responding to a mass shooting.
- Louisiana allows first responders to make psychological claims, but has no presumptions. There must be clear and convincing proof of an extraordinary, single event.
- California has a presumption for first responders, which is new this year. It provides a rebuttable presumption that PTSD claims are deemed compensable. Rebuttals are difficult to overcome. It also has a provision that provides compensability up to 60 months from retirement or termination.