09 Sep 2024

Larson’s Workers’ Compensation Law Case Spotlights (Fall 2024)

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Editorial Note: All section references below are to Larson’s Workers’ Compensation Law, unless otherwise indicated.

Traveling Employee Injured in Fall Down Employer’s Unobstructed Stairs. Acknowledging that generally, traversing stairs is a neutral risk and injuries resulting therefrom are not compensable under the Illinois Workers’ Compensation Act, but construing the state’s rules on traveling employees, an Illinois appellate court affirmed a finding of the state’s Workers’ Compensation Commission that a town’s “blight inspector” was a traveling employee and accordingly, that injuries sustained by him in a fall down unobstructed stairs at a town office building were compensable [see Town of Cicero v. Illinois Workers’ Comp. Comm’n, 2024 IL App (1st) 230609WC, 2024 Ill. App. LEXIS 819, § 7.04 n. 41.1]. The court agreed that the fact that the inspector was not traveling at the time of his injury was not controlling. His workday as a traveling employee had started. His injuries, even on the employer’s premises were, therefore, compensable.

Assault Work-Related Where Co-Employee Disclosed Assaulted Employee’s Location to Assailant. In an unusual assault case from California, Bradford v. R&D Westwing, Inc., 89 Cal. Comp. Cases 119 (Appeals Board noteworthy panel decision (2023)) [§ 8.01[1][b] n. 38.1], an employee’s injury from an assault by a third party was compensable when the employee’s co-worker had supplied the assailant with information that allowed the assailant to find the employee by disclosing the employee’s whereabouts to an unknown caller. The Appeals Board found that this disclosure created a connection between the employment and the assault, making the employment a contributing cause of the attack.

NY Court of Appeals Says Hospital Shooting Arose Out of Employment. Reinstating a decision of the state’s Workers’ Compensation Board that had awarded benefits to a medical employee who sustained injuries in a hospital shooting, the New York Court of Appeals, in Timperio v. Bronx-Lebanon Hospital, 2024 N.Y. LEXIS 626 (May 16, 2024)[see § 8.03 n. 31.2] found the Appellate Division had misapplied the presumption in N.Y. Workers’ Comp. Law § 21(1) that an injury arising in the course of employment is presumed to arise out of employment and be compensable, absent substantial evidence to the contrary. The Court concluded that since it was undisputed that the assault occurred in the course of the plaintiff’s employment and there was no evidence of the motivation for the assault or any prior relationship between the plaintiff and the shooter, the Appellate Division erred in disturbing the WCB’s determination that the claim was compensable.

Employee’s Refusal to Attend Telehealth IME Was Unreasonable. A divided Washington Court of Appeals, in an unpublished decision, affirmed the suspension of workers’ compensation benefits for a claimant who refused to attend a telehealth independent medical examination [see Novalic v. Peacehealth, 2024 Wash. App. LEXIS 1434 (July 16, 2024), § 10.10[3] n. 10.3]. The Court rejected Novalic’s arguments, finding instead that PeaceHealth’s 14-day notice of the exam was sufficient under WAC 296–14–410(3)(a), even though it did not specify the telehealth format. The court found that the broad language of former RCW 51.32.110(1) and former RCW 51.36.070 gave PeaceHealth the authority to require a telehealth IME, as there were no statutory restrictions on the modality of exams. The court also found that Novalic failed to establish good cause for refusing to attend the exam, noting her reasons were based on personal beliefs unsupported by medical expert declarations.

Employee’s Injuries Sustained Shortly After Clocking Out Are Compensable. An employee injured while clothes shopping at her workplace immediately after clocking out on a ‘double discount’ day for employees was found to have suffered a compensable injury under the personal comfort doctrine [see Ross Stores v. Workers’ Comp. Appeals Bd. (Herrera), 89 Cal. Comp. Cases 483 (writ den. (2024), § 21.06[1][a] n. 16.1]. The court reasoned that shopping using the employer-provided discount was reasonably contemplated by the employment, as employees were not permitted to shop during work hours and the employer benefited from these discount days by clearing out old products and boosting sales.

Iowa’s Private Employer Drug Testing Rules Do Not Apply to Post-Injury Testing in Workers’ Compensation Claims. Iowa’s private-employer drug-testing law, Iowa Code § 730.5., requires that an employer conducting a drug test must obtain a sufficient quantity of the sample to allow for both the employer’s testing and a potential second, independent confirmatory test. An Iowa court held the private-employer drug-testing law is not, however, part of the state’s Workers’ Compensation Act and the “split sample” requirement does not apply to post-injury testing of injured workers [see Davis v. Gordon Food Serv., 5 N.W.3d 4 (Iowa Ct. App. 2024), § 36.01[2] n. 12.1]. In Davis’s case, the drug test administered at the clinic after his injury utilized a single urine sample, rather than a split sample. This meant Davis could not pursue a second, independent confirmatory test as would be allowed under Iowa Code § 730.5. The appellate court stressed that when the legislature amended the workers’ compensation statute in 2017, it did not include any reference to or incorporation of the drug-testing regulations from § 730.5. The court also found that substantial evidence supported the Commissioner’s conclusion that the claimant failed to overcome the presumption that his intoxication was a substantial factor in causing his injury.

NY Board Must Apply Same Burden for Stress-Related COVID-19 Claims as COVID-19 Claims Alleging Physical Injury. A New York court held that the state’s Workers’ Compensation Board had erred in applying disparate burdens to claimants seeking benefits for a psychological injury related to COVID–19 versus claimants seeking benefits for a physical injury related to that same virus [see Matter of Anderson v. City of Yonkers, 207 N.Y.S.3d 735 (3d Dept. 2024), § 44.05[4][d] n. 44.1]. Acknowledging the New York rule that stress-related psychological claims are compensable only where the stress experienced by the employee in the workplace is greater than that experienced by similarly situated employees, the court back-pedaled by also stressing that a determination of a psychological accident may be made even though the underlying cause is common to all similarly employed and adversely affected the claimant only because of his or her peculiar vulnerability. The court stressed that under the rule established in in Matter of Wolfe v. Sibley, Lindsay & Curr Co., 36 NY2d 505, 510 (1975), a psychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury.

Delaware Supreme Court Says COVID–19 is Not Occupational Disease for Poultry Worker. In Fowler v. Perdue, Inc., 2024 Del. LEXIS 216 (June 24, 2024), § 51.06 n. 34, the Supreme Court of Delaware affirmed a Superior Court decision denying work, compensation benefits to a poultry plant employee who contracted COVID–19 in March 2020. The Court held that the employee failed to establish that COVID–19 was an occupational disease under Delaware law. Applying the test established in Air Mod Corp. v. Newton, 59 Del. 148, 215 A.2d 434 (1965). and Anderson v. General Motors, 442 A.2d 1359 (Del. A982), the Supreme Court of Delaware examined whether the disease resulted from the “peculiar nature” of employment and attached to that occupation “a hazard distinct from and greater than the hazard attending employment in general.” The Court agreed that Fowler established a hazard “greater than” that attending general employment due to the crowded cafeteria conditions at Perdue. However, it found he failed to prove the hazard was “distinct from” general employment hazards. The Court stressed that contracting COVID–19 in Perdue’s cafeteria was not inherently different from contracting it in other workplace cafeterias or public spaces. Importantly, for a disease to be considered occupational, the Court stressed that it must be a “natural incident” of the specific job, which COVID–19 was not for Fowler’s position as a boxer in a poultry plant.

Louisiana Worker Fails to Show that COVID-19 Was Occupational Disease Under Relevant Statute. In Kibodeaux v. Jan’s Constr. Co., 23–454 (La.App.3 Cir. 04/03/24), 2024 La. App. LEXIS 554, § 51.06 n. 34, a Louisiana appellate court held that, under the particular facts of the case before it, there was no evidence that COVID–19 was caused by an occurrence or condition that was “characteristic of and peculiar to” [see La. Rev. Stat. 23:1031.1(B)] an outdoor oilfield surveyor’s job. That he worked in somewhat remote areas, was on call 24 hours per day, and spent the night in a Texas hotel made no difference. There was nothing about COVID–19 that could be tied to the claimant’s work and his claim could not stand. He could not show that he suffered from an occupational disease. The court went on to say that even if COVID–19 could be found to be an occupational disease in certain cases, this was not such a case as Kibodeaux did not know where or from whom he contracted the illness. Accordingly, the court found find that Kibodeaux could not carry his evidentiary burden of proof at trial that the COVID–19 virus he contracted met the definition of an occupational disease pursuant to La.R.S. 23:1031.1(B).

Nebraska High Court Says Workers’ Compensation Court Erred in Granting Summary Judgment to Employer in COVID-19 Claim. In a deeply divided decision involving a COVID–19 claim filed by a worker at a critical care recovery hospital, a majority of the Supreme Court of Nebraska, in a divided decision, found the state’s Workers’ Compensation Court’ had erred in granting an employer’s motion for summary judgment on the basis that COVID–19 was an ordinary disease of life and not an occupational disease[see Thiele v. Select Med. Corp., 316 Neb. 338, 4 N.W.3d 858 (2024), § 51.06 n. 33.1]. The majority stressed that the health care worker had contracted the disease at a time when cases were not widespread within the state. Accordingly, there was an issue of fact as to whether the worker faced a greater risk than the general public due to her work in a hospital setting.

COVID-19 Might Be Occupational Disease under Colorado’s Act. In a case of first impression, a division of the Colorado Court of Appeals concluded that COVID–19 can—at least under the facts of the instant case—be an occupational disease under the Workers’ Compensation Act of Colorado (the Act) [see Life Care Centers of America v. Industrial Claim Appeals Office, 2024 COA 47, 2024 Colo. App. LEXIS 588 (May 2, 2024), § 51.06 n. 33.2]. The court concluded that here COVID–19 met the statutory definition of an “occupational disease” set forth in section 8–40–201(14), C.R.S. 2023, and a decision of the Industrial Claim Appeals Office awarding death benefits was, therefore, affirmed. The court stressed that COVID–19 could be a compensable occupational disease if a claimant showed that work exposed the worker to a special hazard of contracting it. The court rejected the employer’s argument that such a determination converted workers’ compensation into general health insurance.

California Worker in Contact with General Public Awarded Benefits for COVID-19. In 4Leaf, Inc. v. Workers’ Comp. Appeals Bd. (Sanchez), (2023) 88 Cal. Comp. Cases 1164 (writ den.), § 51.06[2] n. 18.1], an award was affirmed regarding a COVID–19 infection contracted by a permit technician who daily served 20–30 members of the public at a counter.

Thoracic Aortic Aneurysm (TAA) Qualifies as “Heart Disease” under Virginia Provision Granting Presumption to Firefighters. In Hanover County v. Moore, 2024 Va. App. LEXIS 385 (July 9, 2024), § 52.07 n. 52.1, a Virginia court affirmed a finding by the state’s Workers’ Compensation Commission that a thoracic aortic aneurysm (TAA) qualified as “heart disease” under Va. Code § 65.2–402(B), the provision in the Virginia Workers’ Compensation Act that favors qualifying firefighters with a presumption of compensability for their heart disease.

Florida Firefighter’s Thoracic Aortic Aneurysm Not “Heart Disease” Under § 112.18, Fla. Stat. Contrast the Hanover County decision from Virginia, immediately above, with a decision from a Florida appellate court [North Collier Fire Control & Rescue Dist. v. Harlem, 371 So. 3d 368 (Fla. 1st DCA 2023), § 52.07[2][a] n. 6.9], in which a divided panel of the First DCA found that “heart disease,” as used in § 112.18, Fla. Stat., included only diseases that affect and weaken the heart muscle itself [e.g., coronary artery disease, high blood pressure, and valve diseases]. It stressed that Harlem’s aneurysm was not “heart disease” because it was not a disease affecting and weakening the heart muscle through a degradation of the vessels or the valves.

Line of Duty Mental Injuries Now Compensable for Oklahoma’s First Responders. On May 9, 2024, Oklahoma Gov. Kevin Stitt signed S.B. 1457 into law [see § 56.06 n. 15]. The law makes line-of-duty mental injuries compensable for first responders. It applies to police officers, professional and volunteer firefighters, and emergency medical technicians who have been diagnosed with post-traumatic stress disorder and whose mental injury is connected to “responding to an emergency.” The bill defines PTSD as that which is connected to witnessing or experiencing near-death or death or a threat to the “physical integrity of others” and that the response involved “fear, helplessness, or horror.” Under the new law, medical treatment for PTSD is limited to one year. Those who despite treatment are unable to perform duties are eligible for disability benefits not to exceed $50,000.

NY Court Backs Away from Always Requiring Abnormal Stress in COVID–19 Psych Claims. For the reasons stated in Matter of Anderson v. City of Yonkers, 207 N.Y.S.3d 735 (3d Dept. 2024), a New York appellate court held that the state’s Board had improperly applied a disparate burden to claimants seeking compensation for contraction of the COVID–19 virus as compared to those, like claimant here, seeking compensation for psychological injuries stemming from such exposure in the workplace [see Matter of Djanuzakov v. Manhattan & Bronx Surface Transit Operating Auth., 2024 N.Y. App. Div. LEXIS 1780 (3d Dept. Mar. 28, 2024), § 56.06[6] n. 39]. The Board’s determination was reversed, and the matter was remitted to the Board for further proceedings.

Ninth Circuit Affirms Dismissal of App-Based Plaintiffs’ Constitutional Challenge to California’s AB 5. Sitting en banc, the Ninth Circuit affirmed the federal district court’s dismissal of plaintiffs’ state and federal Equal Protection claims challenging AB 5’s differential treatment of app-based work arrangements in the transportation and delivery service industry compared to other industries [Olson v. California, 104 F.4th 66, 89 Cal. Comp. Cases 643 (9th Cir. 2024), § 61.03 n. 1.2]. The court held that AB 5’s provisions survived rational basis review, concluding there were plausible reasons for the legislature to treat transportation and delivery referral companies differently from other types of referral companies, particularly where the legislature perceived transportation and delivery companies as more significant perpetrators of worker misclassification. The court found that AB 5’s potential under-inclusiveness in not extending the ABC test to every industry that has historically contributed to misclassification problems did not render it unconstitutionally irrational.

Federal Court Says California’s AB 5 is not Preempted by Federal Aviation Act. In California Trucking Association v. Bonta, 2024 U.S. Dist. LEXIS 56081 (S.D. Cal., March 15, 2024), § 61.03 n. 1.2, the U.S. District Court for the Southern District of California addressed challenges to AB 5 brought by trucking industry plaintiffs. The court rejected claims that AB 5 was preempted by the Federal Aviation Administration Authorization Act, either expressly or impliedly. It also dismissed arguments that AB 5 violated the dormant Commerce Clause, finding that the law did not discriminate against out-of-state interests and that its burdens on interstate commerce did not clearly outweigh its local benefits. The court further rejected Equal Protection challenges, concluding that AB 5’s provisions, including its exemptions for certain industries, had a rational basis. Notably, the court’s analysis preceded the Ninth Circuit’s en banc decision in Olson, discussed above, but it similarly emphasized the high bar for challenging economic legislation on Equal Protection grounds.

California Supreme Court Affirms Lower Court’s Decision Regarding Independent Contractor Status. In a unanimous decision, the California Supreme Court affirmed, in relevant part, the 2023 lower court ruling that had reinstated most of the state’s controversial Proposition 22 (“Prop 22”) [Castellanos v. State of California, 2024 Cal. LEXIS 3981 (July 25, 2024), § 61.03 n. 1.2]. The decision marks another chapter in the ongoing saga of Prop 22, the 2020 voter initiative allowing ridesharing and delivery app companies like Uber and Lyft to classify their drivers as independent contractors rather than employees. The Court focused on a key question: Does Business and Professions Code section 7451, enacted by Prop 22, conflict with Article XIV, Section 4 of the California Constitution? This constitutional provision gives the Legislature “plenary power, unlimited by any provision of this Constitution” to create a workers’ compensation system. In a 25-page opinion, the Court held that section 7451 does not conflict with Article XIV, Section 4.

Spelling Bee Volunteer Barred from Suing School District in Tort for Injuries. A California appellate court held that a school district volunteer injured while volunteering at an elementary school spelling bee was limited to workers’ compensation as her exclusive remedy under Lab. Code § 3364.5 [Perez v. Galt Joint Union Elementary Sch. Dist., 96 Cal. App. 5th 150, 314 Cal. Rptr. 3d 194, 88 Cal. Comp. Cases 937 (2023), § 65.01 n. 3.1]. As long as the governing board had passed a resolution at some point and not rescinded it, the statute applied even if current board members were unaware of it. The court also ruled that board members do not need to know about or authorize a specific volunteer’s involvement in a specific activity for the exception to apply, and that the resolution need not use the precise current name of the school district to be effective.

Festival Jouster Was Not Covered by Louisiana’s Workers’ Compensation Act. In McKeane v. LA Ren Fest, LLC, 2024 La. App. LEXIS 775, 2023 1003 (La.App.1 Cir. 05/09/ 24), § 72.02[1] n. 14.1.a Louisiana appellate court ruled that a “jouster” working at the Louisiana Renaissance Festival was a “performer,” exempt from coverage under the state’s Workers’ Compensation Act [La. R.S. 23:1035(B)(2)] and, therefore, his claim for benefits regarding injuries he sustained in a fall from his horse were not compensable as a matter of law.

Pennsyvlania Supreme Court to Take Up Issue Regarding Medical Cannabis Oil. The Pennsylvania Supreme Court granted review to consider three questions about reimbursement for medical marijuana and other non-prescription items under Pennsylvania’s Workers’ Compensation Act [Schmidt v. Schmidt, 2024 Pa. LEXIS 633 (Apr. 30, 2024), § 94.06 n. 36.2]. The Curt will consider: (1) whether medical cannabis (“CBD oil”), over-the-counter supplements, and non-prescription products qualify as reimbursable “medical services” and “medicines and supplies” under Section 306(f.1) of the Act; (2) whether the Act’s cost containment regulations apply to medical cannabis; and (3) whether and how employers must reimburse claimants directly for out-of-pocket medical and pharmacy expenses under Section 306(f.1), and what documentation claimants must provide.

Wisconsin Act Does Not Bar All Claims Related to Non-Employee Spouse’s Death from COVID-19. In Estate of Ruiz v. Conagra Foods Packaged Foods, LLC, 601 F. Supp. 3d 368 (E.D. Wis. May 3, 2022), § 100.05 n. 8.1, a Wisconsin court addressed whether the state’s workers’ compensation exclusivity provision (Wis. Stat. 102.03(2)) bars tort claims against an employer for a non-employee spouse’s COVID–19 death allegedly resulting from an employee’s workplace exposure. The court held that while exclusivity bars the employee’s claims, it does not bar claims by the non-employee spouse’s estate for her independent injury and death. Thet court distinguished between derivative claims (like loss of consortium) that are barred, and independent physical injuries to non-employees that are not barred even if causally linked to a workplace injury. It found persuasive out-of-state cases allowing such “take-home” COVID claims against employers. The court concluded ConAgra owed a duty of care to prevent virus spread beyond employees, but requested additional briefing on whether public policy considerations might still preclude liability. It rejected ConAgra’s arguments on vicarious liability and contributory negligence at this stage.

California Employer Owes No Duty of Care to Prevent COVID-19 from Spreading to Household Members. Relying upon a ruling by the California Supreme Court answering certified questions, the U.S. Court of Appeals, Ninth Circuit, held that while the spouse’s tort claim against the employer was not barred, her claims were nonetheless precluded because employers owe no duty of care under Cal. Civil Code § 1714 to prevent the spread of COVID–19 to employees’ household members [see Kuciemba v. Victory Woodworks, Inc., 74 F.4th 1039, 88 Cal. Comp. Cases 792, § 101.02 n. 9.3].

California Employee’s Fraudulent Concealment Case Regarding COVID-19 Outbreak May Move Forward. In Chavez v. Alco Harvesting, LLC, (2024) 102 Cal.App.5th 866, 89 Cal. Comp. Cases 615, § 104.03[4] n. 15.2, a California appellate court applied the liberal pleading standard established in Foster v. Xerox Corp. (1985) 40 Cal.3d 306 [219 Cal. Rptr. 485, 707 P.2d 858, to allegations involving a COVID–19 outbreak, holding that the plaintiff adequately pled the fraudulent concealment exception by alleging in general terms that the employer knew of a workplace COVID–19 outbreak, knew the decedent had contracted COVID–19 from work exposure, but deliberately concealed this knowledge from the decedent, thereby aggravating his illness. The court emphasized that under Foster, plaintiffs are not required to plead fraudulent concealment allegations with specific detail.

Mississippi Supreme Court Says Cost of Second Opinion is not Part of Employer’s Subrogation Interest. In Brent v. Mississippi Dep’t of Hum. Servs., 2024 Miss. LEXIS 163 (May 30, 2024), § 117.03 n. 7, the Supreme Court of Mississippi held it was error to require an injured employee to reimburse his employer for the cost of an Employer Medical Evaluation (EME) following the employee’s settlement of a third-party civil action. The high court held that the $2,887.50 fee paid to a non-treating consultant for a second opinion evaluation was not a reasonable and necessary medical expense that was reimbursable under the state’s Workers’ Compensation Act. It reversed an earlier contrary decision by the Court of Appeals.

For Statute of Limitations Purposes, Payment of Attorney’s Fees and Costs Does Not Constitute Provision of “Benefits” under § 440.19(2), Fla. Stat.
In American Airlines v. Lopez, 2024 Fla. App. LEXIS 3915 (1st DCA May 22, 2024), § 126.07[6] n. 26.2, a Florida appellate court held that the payment of attorney’s fees and costs does not constitute provision of “benefits” under the state’s Workers’ Compensation Act. Accordingly, the First DCA reversed a JCC’s order that rejected the statute of limitations defense asserted by the employer/carrier (E/C). The court held that the JCC erred in finding that payment of attorney’s fees and costs constituted a provision of “benefits” under § 440.19(2), Fla. Stat., which would toll the statute of limitations. Only payment of indemnity benefits or furnishing of remedial treatment, care, or attendance tolls the one-year limitations period.

WCJ May Award Attorney’s Fees to Claimant Even When Denial of Claim was Reasonable. Going against long-standing practice in the state, the Supreme Court of Pennsylvania held that in all cases in which a workers’ compensation claimant prevails, the WCJ may, in his or her discretion, enter an award requiring the employer to pay claimant’s attorney’s fees, even where there was a reasonable basis for the employer’s contest [see Lorino v. Workers’ Comp. Appeal Bd. § 133.02[2][b] n. 15.12021)]. For a number of years, the Keystone State practice has been that fee awards are not to be awarded where the employer or carrier’s decision to deny a claim or terminate benefits was reasonable. Examining Section 440 of the state’s Workers’ Compensation Act, the high court said it was not saying a WCJ could never deny an award of attorney’s fees when the employer or carrier had established a reasonable basis for its contest. It was saying, however, that the establishment of such a reasonable could not be used as the sole basis for denying the claimant’s fee application.

Jurisdiction Over Out-of-State Baseball Player’s Claim. In The Cincinnati Reds, LLC v. Workers’ Comp. Appeals Board (Fonceca),(2024) 89 Cal. Comp. Cases 698 (writ den.), § 142.03[5] n. 14, the California Appeals Board affirmed that it had personal jurisdiction over an out-of-state professional baseball team in connection with a player’s claim for industrial injury, even though the player never played games in California for that team, where: (1) the player was initially scouted in California by the team’s agent; (2) the player signed his contract in California; (3) the player returned to California in the off-season; and (4) the team’s scouting agent arranged for and observed the player participating in community college games during the off-season in California. The WCAB found these contacts sufficient to support California’s exercise of personal jurisdiction over the team.