Category Archives: LHWCA

Coronavirus (COVID-19) and Workers’ Compensation: Your Questions Answered!

Video taken from live Q & A led by Greg Lois on March 9, 2020.

Download the handout, with cases and statutory citations, from the live training on COVID-19 and workers’ compensation here:

Question: What are the state's laws regarding the compensability of exposure to a virus? Could illnesses caused by coronavirus be covered in this jurisdiction?

NEW YORK: Yes, a disease contracted by an employee within the course of employment may be compensable. For example, illnesses or infections caused by specific workplace exposure such as a needlestick incident will be found compensable. In general, illnesses or infections caused by exposure to co-employees or general workplace risks will not be compensable. Most coronavirus claims will not be compensable.

NEW JERSEY: Yes, an infection caused by exposure in the workplace can be compensable as an occupational disease. For non-first responder employees, illness or infection will be compensable where there has been a specific, documented incident resulting in infection. For first responders, mere 'potential exposure' triggers a presumption of compensability. Most coronavirus claims will not be compensable.

LONGSHORE: Yes, infections caused by exposure in the workplace are compensable. To be found compensable, the exposure must be the result of a specific incident and not simply exposure to a general health risk. Most coronavirus claims will not be compensable.

Question: When would the condition be covered, when would it not be covered? What is the standard of proof the claimant must meet?

NEW YORK: A disease is considered to be compensable if it 'is the result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by a peculiar place in which particular claimant happens to work . . . or caused by ordinary contact with a fellow employee.' In general, ailments contracted from common exposure not specific to the workplace should not be found compensable. However, where the employee can show that the nature of the employment brought with it exposures to specific causes of disease or infection, then the resulting condition can be compensable. Examples of diseases that have met this standard includes pulmonary diseases such as bronchitis, infectious hepatitis, and staph infections. In those cases, the employee was able to demonstrate or allege a very specific exposure that was unique or peculiar to the employment. Additionally, where there has been a specific definite exposure, for example a teacher who contracted mumps after exposure to pupils during an epidemic, that illness was found compensable. Because the risk of coronavirus infection is not peculiar to any one workplace, with the exception of perhaps some medical or emergency response employments, a theory of general workplace exposure is unlikely to succeed for claimants alleging they contracted the disease due to exposure to co-employees or the general public in their workplace.

NEW JERSEY: The Act defines the phrase “compensable occupational disease” to 'include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.' A petitioner has the burden of proving by a preponderance of the evidence that his or her environmental exposure was a substantial contributing cause of the alleged occupational disease. A petitioner must prove legal causation (the injury is work-connected) and medical causation (the injury is a physical or emotional consequence of work exposure). It is sufficient to prove that the risk or danger in the workplace was a contributing cause. Direct causation is not required. Activation, acceleration or exacerbation of disabling symptoms is sufficient. In general, it is extremely unlikely that a New Jersey petitioner will be able to satisfy this requirement by alleging contacts with co-employees or the general public resulted in contracture of the disease. The exception, discussed below, is New Jersey's 'first responders' in light of the recent (2019) law change granting them a presumption of compensability (see below).

LONGSHORE: Any disease arising out of exposure to harmful conditions of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally. There is a three-step test for determining whether an employee has a compensable occupational disease:

  1. First, the employee must suffer from a “serious derangement of health” or “disordered state of an organism or organ.”
  2. Second, the specific working conditions of the employment must be the cause of the disease.
  3. Third, the hazardous conditions must be “peculiar to” one’s employment as opposed to other employment or general living. In other words, there must be something extraordinary about the work exposures that directly relates to the condition allegedly disabling the affected worker.

In general, a Longshore or Defense Base Act claimant will not be successful alleging a claim for infection or illness unless there has been a specific incident of exposure; general exposure to co-employees or the public will not meet the standard for compensability.

If an employee tests positive, does the WC policy cover the employer testing employees for the virus?

NEW YORK: Yes, if the underlying condition is compensable, then testing or diagnostic treatment necessary to detect or confirm the condition would be medical treatment and the responsibility of the employer/carrier. Negative test results and 'screening' or preventative testing is not covered by the WCL.

NEW JERSEY: Yes, where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier. Negative test results and 'screening' or preventative testing is not covered by the Act.

LONGSHORE: Yes, where the claimant has a compensable condition the employer/carrier has an absolute duty to provide all necessary medical care, which includes diagnostic testing. Negative test results and 'screening' or preventative testing is not covered by the Act.

What About First Responders?

NEW YORK: Pursuant to WCL 10(3)(a), testing and diagnosis for first responders is covered when 'in the course of performing his or her duties, [the first responder] exposed to the blood or other bodily fluids of another individual or individuals.' This is an exception to the general rule that 'testing' is not covered until/unless the underlying medical condition is compensable.

NEW JERSEY: N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to 'the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease.' The Statute also states 'If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.'

LONGSHORE: Not applicable.

What About Quarantine? How Are Employees Compensated for Lost Time Due to Quarantine?

Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers' compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

Questions about Coronavirus (COVID-19) and Workers’ Compensation?

Contact Greg Lois, managing partner at LOIS LLC with questions.

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Disclaimer

This website is not legal advice! The materials presented by this website are for informational purposes only and are not offered as legal advice as to any particular matter. No reader should act on the basis of these materials without seeking appropriate professional advice as to the particular facts and applicable law involved. The materials are not represented to be correct, complete, or up-to-date. Opinions presented by this web site are the opinions of the author. Neither the use of this web site nor the transfer of information to or from this web site shall create or constitute an attorney-client relationship between Greg Lois or LOIS LAW FIRM LLC and any person. You should not send any confidential information to this web site until after you have entered into a written agreement for the performance of legal services.

Settling Cases Involving the World Trade Center Health Program

Settling Workers’ Compensation Cases Involving the World Trade Center Health Program

Where a claimant has a New York or New Jersey or Longshore workers’ compensation claim and is entitled to benefits under the James Zadroga 9/11 Health and Compensation Act of 2010 (“Zadroga Act”) you can obtain a Section 32 (NY WCL § 32), Section 20 (N.J.S.A. 34:15-20) or 8(i) LHWCA (33 U.S.C. 908[i]) lump-sum dismissals of state or Federal workers’ compensation benefits if the secondary payer rights of the WTC Health program are considered.

The Zadroga Act and the World Trade Center Health Program.

The James Zadroga 9/11 Health and Compensation Act of 2010 (“Zadroga Act”) establishes the World Trade Center Health Program (“WTC Health Program”) administered by the Department of Health and Human Services. The Act also extends the September 11th Victim Compensation Fund (VCF), initially operated from 2001 to 2004. The WTC Health Program provides medical monitoring and treatment for emergency responders, recovery, and cleanup workers, and volunteers who helped after the terrorist attacks on September 11, 2001 and for people who were present in the dust or dust cloud on 9/11 or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area for a period of time on 9/11 or during the following months.
Continue reading Settling Cases Involving the World Trade Center Health Program

New Longshore rates in effect.

All compensation rates are based on a calculation of the claimant’s weekly wage. In every case, the actual benefit amount requires reference to the National Average Weekly Wage as a ‘maximum’ on the possible benefits. The Department of Labor determining the National Average Weekly Wage as follows:

As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year.

See 33 U.S.C. §906(b)(3).

The U.S. Department of Labor has announced the annual rate increase effective October 1, 2011 based on a newly-calculated National Average Weekly Wage (NAWW).

The new NAWW effective October 1, 2011, is $647.60. This represents a 3.05% cost of living increase over October 1, 2010. All beneficiaries receiving permanent total disability or related death benefits as of September 30, 2011, receive a 3.05% increase in their weekly rate.

The new NAWW also establishes the new maximum and minimum rates under section 906(b); effective October 1, 2011, the maximum weekly rate under the Longshore Act is 200% of the NAWW, so the new maximum rate is $1,295.20 per week. The minimum rate is 50% of the NAWW, so the new minimum rate is $323.80 per week.

Defining "situs" under the Longshore Act.

How is jurisdiction established under the LHWCA?

The Longshore and Harbors Workers’ Compensation Act (“LHWCA”) covers longshore/harbor workers and other “maritime” workers. The Act has also been applied to certain other workers under the Defense Base Act. (See my overview of the LHWCA).

“Status” and “situs.”

The LHWCA set forth the requirements for coverage. “Status” refers to the nature of the work performed; “situs” refers to the place of performance.

Status.

The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status.

Situs.

The jurisdictional trigger for a claim under the LHWCA is an injury upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). Jurisdictional questions based on issues of situs are fact-sensitive.

In a new case, decided last month, the employer argued that the claimant did not satisfy either the status or situs prerequisites of the LHWCA. The Benefits Review Board ruled that the claimant did satisfy the status requirement, because he was maintaining and repairing loading equipment used in Longshoring activity.

However, the claimant worked in a garage, more than 400 feet from any navigable water (the Monongahela River). The employer argued that the claimant did not meet the ‘situs’ test.

Taking a liberal view, the Circuit Court adopted a broad reading of “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel,” requirement of the Act. In defining “adjoining area,” the court held that “[s]o long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee’s injury can come within the [Act]. To require absolute contiguity . . . would frustrate the congressional objectives of providing uniform benefits and covering land-based maritime activity.” The Board ruled that the garage where claimant was injured was a covered situs, and awarded benefits.

Case: Consolidation Coal Co. v. BRB, et al. [Smith], __ F.3d __, 2010 WL 5176847 (3d Cir. 2010).

Have any questions about this article? Contact Greg Lois.

Medical treatment and IMEs under the Longshore and Harbor Workers' Compensation Act

My book – “Longshore and Harbor Workers’ Compensation Act and Defense Base Act Claims 2011 Edition” is getting ready for publishing and we are finalizing the cites and references for the 2011 editiion (shipping: April 2011). Here’s a sneak preview of the Chapter 6: Medical Benefits (note: 43 footnotes with citations have been removed):

Chapter 6: Medical Benefits under the LHWCA

Section 907 of the Act requires that the
. . . employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.

The employer must respond to a request for treatment upon notice of the injury, even if the work-relatedness of the injury is challenged. The duty of the employer to provide medical treatment is absolute. The medical care provided must be both “reasonable and necessary” and appropriate for the injury.   The claimant has the right to choose his own attending physician.

The physician chosen by the claimant must submit a report to the carrier within 10 days.

The right of the claimant to choose his own physician is only limited by the ‘prohibited’ provider list of physicians and facilities who do not meet standards established by the DOL.

The employer is liable for all medical expenses for any consequences of the compensable injury, including the chosen physician’s malpractice.  While an employer is not liable for medical expenses due to the degenerative processes of aging, an employer is responsible for ‘aggravations’ of prior injuries. An employer is responsible for treatment even if the work-related injury only partly causes the need for that treatment, and that is true in psychological injury cases as well as physical injury ones.

Any injury sustained during the course of a medical examination scheduled at the employer’s request for an alleged work-related injury is covered under the LHWCA, because such an injury necessarily arises out of and in the course of employment.

Exceptions to the claimant’s choice of physician

Emergencies

The employer is allowed to select a doctor or facility the claimant can not due to the nature of his injury and the injury requires urgent treatment, the employer is to select a physician for him. The claimant must be incapacitated and in need of emergent treatment for this exception to be invoked. Once the claimant regains his faculties, then he regains the freedom to chose his own attending doctor.

Changing doctors

Once a claimant has made an initial unrestricted choice of a physician, he may change physicians only upon obtaining prior written approval of the employer, carrier, or deputy commissioner. If the claimant fails to obtain the required authorization to switch treaters, the carrier/employer does not have to reimburse the claimant for the costs of the new, unauthorized treatment. Note: referral to a specialist from an attending physician will not invoke a need for new authorization from the carrier.
         

Requesting treatment.

The claimant must report his injury and request treatment in order to trigger an employer’s responsibility to pay for such care. There are many instances where an employee does not have to formally report his injury – for example, where an employer’s representative is at the scene of the accident. An employer “has knowledge of an injury” when an accident occurs and a reasonable person could conclude that there might be liability for compensation and should investigate further.

Mere knowledge of an accident is not enough to make an employer liable for paying medical bills – accident happen everyday and no treatment is sought. The employee must affirmatively request care in order to trigger responsibility on the part of the employer for any resulting medical bills.

The employee does not have to request treatment when a request would be futile. For example, if the claimant was fired for reporting the accident, there would be no duty on the part of the claimant to seek treatment from the employer.

Judicial review of medical treatment

A claimant only has to present the opinion of a qualified physician that treatment was necessary for a work-related condition to establish a prima facie case for compensable medical treatment. The judge can order the employer to make payment for medical treatments already received by the claimant. The Judge can also order that a specific course of medical care be authorized by the employer. However, a judge can not pick specific medical facilities for the care to take place – that would abrogate the claimant’s right to pick his own doctor.

A judge has no authority to deny a medical expense on the technical grounds such as a particular physician’s expertise, whether the fee charged was within the customary range, or where the medical treatment was not documented. The Judge can only rule on the reasonableness of the medical services.

It is up to the employer to raise the reasonableness and necessity of treatment before the presiding judge.

What counts as medical treatment?

Stories are legion and Longshore caselaw is replete with references to dubious medical treatment prescribed by treating physicians and ruled to be the employer’s expense (for example – the install of a jacuzzi for the ‘recovery’ of a claimant, a physician ordered who ordered his patient relocate to a ‘warmer climate,’ or a doctor writing prescriptions for first class travel). The regulations define medical care to include laboratory, x-ray, and other technical services, such as prosthetic devices for the care and treatment of the injury or disease. Treatment does not have to be ‘medically accepted’ but merely “helpful.” The treatment does not have to be administered by a therapist or practitioner with any sort of license. Meeting this rather low burden are pseudo-medical treatments such as biofeedback.

Chiropractors are allowed to treat Longshore patients and are paid for their care only to the extent that it consists of manual manipulation of the spine to correct a subluxation shown by x-ray or clinical findings. Chiropractors are not to be paid for treating shoulders, hips, knees, etc., or administering physical therapy.

Travel to and from medical appointments, as well as special travel needs, are generally compensable.
Generally, travel will be reimbursed for physicians within 25 miles of the residence of the claimant.

Regulation 20 C.F.R. § 702.403 states:
In determining the choice of physician, consideration must be given to availability, the employee’s condition, and the method and means of transportation. Generally, 25 miles from the place of injury or the employee’s home is a reasonable distance to travel, but other pertinent factors must also be taken into account.

Independent Medical Examinations

33 U.S.C. § 907(e) states:
In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee’s physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted. Such review or reexamination shall be completed within two weeks from the date ordered unless the Secretary finds that because of extraordinary circumstances a longer period is required. The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 [33 USC § 944].

The IME Process

When a medical question is raised, the Secretary may have the claimant examined by a physician employed or chosen by the Secretary and receive a report to determine the diagnosis, estimate the claimant’s physical impairment, or comment on whether additional medical treatment is necessary.

Following the initial report, either the claimant or the employer can then request a review or a reexamination of the employee by a different physicians employed or chosen by the Secretary within two weeks.

The findings of the initial examining physician’s findings are not binding on any party.

Immediately following the initial exam, the employer or carrier may request, to have the employee examined.

If the claimant refuses to attend an IME

If the employee refuses to submit to the examination, the proceedings shall be suspended and no compensation is paid until the claimant attends the exam. This applies equally to initial exam and employer-requested IMEs. A claimant’s failure to attend an exam with the employer’s chosen examining physician can not be excused. Claimants have argued that the physician chosen by the employer are biased or incompetent as excuses for not attending exams. A Judge can not excuse a failure to attend an IME on the grounds that the claimant lacks confidence in the physician, although that would obviously be accepted by the court as a reason to not allow the doctor to act as a treating physician.