Workers’ Compensation 2020 Case Law Trends

In this session at WCIvirtual 2020, panelists discussed examples of various workers’ compensation cases and ways that this case law can be applied.

Speakers included:

• E. Louis Stern – McConnaughhay, Coonrod, Pope, Weaver & Stern, PA (moderator)
• Geoffrey Bichler – Bichler, Oliver, Longo & Fox, PLLC
• Marc Golden – Rosenthal, Levy, Simon & Sosa, PA
• David Beach – Rissman, Barrett, Hurt, Donahue, McLain & Mangan, PA
• Mark Zientz – Law Offices of Mark L. Zientz, PA

Attorney’s Fees:
This practice is becoming extremely technical and strict, whether it is following code or completing the correct forms. There is no safe haven anymore related to time frame. For instance, a judge ruled against an attorney who assumed that weekends did not count towards the 30-day fee deadline. No longer can you assume that business days only apply. These hard rules mean that those in practice need to set their calendars so that deadlines are met well before the cutoff date. The fee statute has changed over the years, shifting what types of fees are considered part of the workers’ compensation benefit. Big fees are still trying to be obtained for small benefits. In one case, an attorney sought a $1500 fee for handling $6 in postage and mailing an item on behalf of a client.

Compensability:
Lawyers are getting creative in attacking the exposure portion of the statute, but have not always been successful. In one case, the claimant was diagnosed with fungal meningitis due to work in a wooded area where the environment was allegedly releasing mold and fungus spores. Mold is virtually impossible to prove unless you are in a controlled environment, so various arguments and testing failed. Simply by completing the job and cleaning up the work site, there was no evidence left to test. There was also no evidence that the employer was aware of any potential danger to employees. The court ruled that they failed to accomplish the burden of proof in the case. Panelists expressed that these are the same type of difficulties that will occur with proving causation related to COVID-19 – a novel virus with no variety of past cases to draw from. Without the legal protections in place for certain occupations, the law seems to fail these workers. According to panelists, it is very hard to prove exposure in certain environments.

Recreational Activity Cases:
According to the law, social or recreational activities cannot be required by employers. In one case, an employee established that she had to participate in a bowling outing, which was part of a larger strategic planning activity. She felt that this activity was required. When injured bowling, she was ultimately awarded workers’ compensation benefits by proving that participating in this activity benefited her professionally, therefore she felt that she had to participate. Employers need to be careful as to how they position these types of recreational employee activities.

Heart and Hypertension:
More frequently, when heart-related presumption claims are ruled as wholly non-occupational incidents, attorneys then explore triggering incidents as the cause.

Remedial Treatment:
In one case, a claimant was seeking treatment from a neurologist and then requested for a one-time change to a different doctor within the same specialty, which was granted within one day. The court recognized the new authorized provider, however, the carrier did not make the appointment until 56 days after this change was granted. The verbiage said that employer/carrier must “authorize” (i.e. name) an alternative physician within five days, which they did. Next, it states if the employer/carrier must “provide” an appointment, which took a lengthy 56 days, delaying care. A judge concluded that they failed to “provide” that care on a timely basis due to the intentional use of two different words. The court ruled that the carrier should have completed two items – 1) name the physician and 2) within a reasonable time period (appointment date). Without a specific time frame listed, the panel thinks it would have been difficult to accomplish this. That information needed to be specified.