Compensability Issues Confronting Workers’ Compensation Claims Handlers

In day two 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.

Panelists Included:

• Caitlin Beyl – Attorney at McConnaughhay, Coonrod, Pope, Weaver & Stern, PA
• Christopher McCue – Attorney at McConnaughhay, Coonrod, Pope, Weaver & Stern, PA
• Martine Cumbermack – Attorney at Swift, Currie, McGhee & Hiers, LLP
• Rich Lenkov – Attorney at Bryce Downey & Lenkov, LLC
• Jennifer Morris Jones – Attorney at Cranfill, Sumner & Hartzog, LLP
• Regan Cobb – Attorney at Holder Padgett Littlejohn & Prickett, LLC
• Heather Douglas – Attorney at Manier & Herod, PC

Remote Working

With so many employees working from home, navigating compensability of work injuries has become more difficult. It takes a substantial amount of investigative time and effort to analyze these claims because employers are not familiar with the work locations. Investigations get more personal because questions must be asked about the home environment. States are now determining whether there are differences in compensability for injuries that occur at home instead of at the office. It is difficult to monitor employees at home, so determining exactly how they were injured becomes a bigger challenge.

• Florida determines compensability by analyzing whether the accident occurred during the scope of normal employment. In one case, an employee tripped over her dog on her way to the kitchen and injured her back. Because the risk of tripping over her dog was present before working hours and after, the court determined that the risk did not arise out of the ordinary scope of work and, therefore, was not compensable. That case is on its way to the Supreme Court and may be overturned. A case in 2019 defined the standard as whether employment necessarily exposed the employee to conditions that substantially contributed to the risk of injury.
• North Carolina does not have a separate standard for analyzing compensability issues for employees working at home versus those in a physical office. In both cases, the employee must prove that they sustained their injury in the course and scope of employment and that it was caused by a hazard, not their normal work. The only exception is back injuries, which are compensable if they are sustained through the course of normal work.
• Georgia’s statutes do not specifically address remote work. However, injuries must arise out of the normal course of employment. Employees must show that they were performing their job and that they were working in a place they would reasonably be expected to perform those duties. In a 2004 case, a nurse was injured when she fell in her driveway while carrying charts and reports. Because she was an on-call nurse for that specific 24-hour period, and her supervisor had given her permission to complete her charts at home, the injury was compensable. Each case is analyzed individually, but when employees are doing something not specifically designated in their job, it is not generally compensable.
• Tennessee’s statutes are similar in that they require an injury to occur during a period, and in a designated place, of employment. A 2007 case laid the groundwork for investigating whether an injury at home was compensable. In that case, an employee working at home was assaulted by someone who came to her door. The injury was not compensable because she was not performing her work responsibilities when she answered the door. In some cases, they are looking at whether injuries in an employee’s kitchen are akin to injuries that occur in a lunchroom or break room. One thing that could help employers is having set log-in/log-out procedures and designated home office spaces for employees to work, so that investigating injuries isn’t as complicated.
• Illinois courts are still determining was “increased risk” looks like for employees working at home. So many employees are doing the same type of work at home, sitting in front of a computer, that it will be difficult to prove that an injury they sustain at home is caused by an “increased risk.”

Impairment/Intoxication

• South Carolina allows an intoxication defense, which states that a work injury or death is not compensable if occasioned by intoxication of the employee. In order to use this defense, it must be filed within 30 days and requires more than simply a positive drug/alcohol test. The defense (the employer or carrier) must prove that intoxication was the proximate cause of the injury. Generally, that can be proven with witness statements about the injured employee’s appearance and behavior at the time of the accident. Cases that involve alcohol and motor vehicle accidents are easier to prove, but things like marijuana are more difficult, because the substance can stay in the employee’s system for 30 days.
• Florida’s standards for intoxication defense are similar to South Carolina. In one case, an employee tested positive for marijuana after he was injured falling from scaffolding. The investigation found that the scaffolding was erected improperly by someone else the day before, so the injury was not caused by intoxication. Therefore, it was compensable despite the positive drug test. One important thing to remember is that timely testing is important. In one case, an employee was sent for a drug test and drove himself. He claimed that he was in so much pain that he stopped by his house and smoked marijuana before the test. It was then impossible to prove otherwise. Employers should send someone with the injured employee for the test, if possible.
• North Carolina has a similar affirmative intoxication defense. An injury is not compensable if it was proximately caused by intoxication, as long as the alcohol or drug was not provided by the employer. The employer/carrier has the burden of proving each element of the case. North Carolina has found that blood tests are more reliable than urine or breath tests, so testing needs to occur as soon as possible.

Legalized Marijuana

• Illinois legalized recreational marijuana in early 2020. Many people thought that the intoxication defense would be void, but that is not the case. The legalization of marijuana only means that the employee will not be criminally prosecuted. The workers’ compensation provisions sill apply. If the employer submits evidence of intoxication (positive test, witness testimony, etc.), the burden shifts to the petitioner to prove that the injury was caused by employment and not the drug/alcohol.
• South Carolina passed a law in 2014 that allows for an extremely narrow use of medical marijuana for a specific type of epilepsy. In those cases, the oil used must contain less than 0.9% THC. As of June 2020, there is still pending legislation about medical marijuana in general.
• Georgia does not compensate for injuries that occur when the employee was under the influence of marijuana or another controlled substance, unless prescribed by a physician. There is no case law on the use of THC oil, but employers can still assert the intoxication defense if there is any amount of THC in the employee’s system. The key is whether the intoxication was the proximate cause of injury.

Psychological Claims & Presumptions

• Georgia requires that psychological injuries arise naturally from some discernible, physical occurrence in order to be compensable. The employee must demonstrate that the physical injury was sustained in the course of normal employment and that the psychological issue arises out of that specific injury. In one case, an employee was held at gunpoint during a robbery. The employee subsequently developed PTSD, but it was not compensable because there was no physical injury. In another case, a park maintenance worker had to help clean up a flooded cemetery. The employee developed severe PTSD as a result of handling several bodies, but the case was not compensable. On the other hand, a bus driver had to clean up materials on her bus and the fumes caused an asthma attack. She developed anxiety about returning to work and having another attack. Because the anxiety stemmed from that first attack, which was a compensable injury, her anxiety was a compensable psychological injury. As another example, a tractor-trailer collided with a car and the passenger of the car died. The driver of the car and the driver of the tractor-trailer were both injured and placed in the same hospital room. The truck driver developed PTSD that was compensable, because he was physically injured in the accident.
• Illinois recognizes mental injuries on their own, though it is difficult to meet the burden of psychological trauma. The injury must be a severe, sudden reaction traceable to a specific time and place. Proving that one event caused life-altering trauma is difficult. Claimants cannot be deposed, but attorneys can review their medical history. Often, you will find that the employee had previous mental issues or treatment. If the injured worker establishes compensability, which is rare, the next challenge is proving permanency. It is the petitioner’s burden to prove this.
• Tennessee requires that a mental injury be sudden and unusual, not just general job stress or stress from termination. It is important to continue asking whether the treatment requested still treating the work injury. If the treatment veers into prior issues, it is no longer compensable. There are limits to benefits in the state. For a mental-only claim, maximum medical improvement (MMI) is presumed after 104 weeks, at which point benefits are terminated. For mental claims in conjunction with physical claims, once the treatment for the physical injury ends, MMI is presumed for the mental claim as well.
• South Carolina allows mental-only claims, but they must be extraordinary and unusual to normal conditions. Currently, a bill is proposed to exempt first responders from this rule as their work can be traumatic on a regular basis.
• Florida requires a physical injury to be the main contributing cause of a compensable mental injury. In one case, the injured worker had recovered from the physical injury and indicated that the mental health treatment was not directly addressing that anymore. In that case, the mental injury was no longer compensable. Recently, Florida developed presumption laws for first responders, following the mass shooting at Pulse nightclub. Since that law was passed, first responders can be compensated for PTSD without a precipitating physical injury.