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Airline Employees & COVID-19: Do Employees Have a Claim for Workers’ Compensation in NY and NJ?

07.06.2020

As coronavirus spreads throughout the country, the impact the virus will have on the workers’ compensation industry will continue to be studied.  A vast array of industries have workers categorized as “essential.”  Will these essential workers eventually have a path towards an established workers compensation claim?  As it currently stands in New York and New Jersey, there are limitations on what claims would currently give rise to an established COVID-19 claim. Turning to industry specific questions of compensability, we analyze the question of an airline employee’s claim for COVID-19.

There are two different theories in which an airline employee could file a workers’ compensation claim in New York State for diagnosis of COVID-19: as an occupational disease claim and as an accidental claim. For either theory to be successful, the burden is on the claimant to establish a causal relationship between his employment and his disability by competent medical evidence.

According to the CDC, it is likely that more cases of COVID-19 are going to be caused by community spread. The CDC defined community spread as meaning that “people have been infected with the virus in an area, including some who are not sure how or where they became infected.” As more people contract the virus, and less people know how or where they became infected, it will become more difficult for a claimant to show, through competent medical evidence, that there is a causal relationship between their employment and the virus.

For an occupational disease claim-the claimant would also need to prove that the disease arose “from the nature of employment … conditions to which all employees of a class are subject… and attach to that occupation a hazard….” Goldberg v. 954 Marcy Corp., 276 N.Y. 313, 319 (1938).The disease must result from a distinctive feature of the occupation. The claimant must establish a “recognizable link” between this distinctive feature and his condition through competent medical evidence. Matter of Phelan, 126 A.D.3d 1276 (3d Dept. 2015).

An airline employee most likely would not be able to establish COVID-19 as an occupational disease claim. In contrast, some hospital workers have been able to prove that an infectious disease contracted while at work in the hospital is compensable as an occupational disease. This is because a risk of catching a disease may be linked to their duties in dealing with infected patients. Case law has not yet expanded to other industries in this same way. The Board has not found that airline employees have a distinctive feature of their occupation in regards to exposure to disease.

Turning to accidental claims; the claimant would need to show ‘injury’ and ‘personal injury’ arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom” (WCL 2[7]). “While a compensable accidental injury may either result from a single catastrophic event or develop gradually over a reasonably definite period of time, it must be demonstrated that a specific aspect of the claimant’s workplace was a contributing factor in bringing about the injury” ( Matter of Newton v Sears Roebuck & Co., 293 AD2d 862[2002]. To establish that the accidental injury developed gradually, rather than suddenly, the claimant must “demonstrate by competent medical evidence that [it] resulted from ‘unusual environmental conditions or events assignable to something extraordinary’ at his workplace” ( Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890 [2008], quoting Matter of Harrington v Whitford Co., 302 AD2d 645 (2003), quoting Matter of

Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994]).

The NY Workers’ Compensation Board could possibly find that the COVID-19 pandemic is “something extraordinary;” however, this finding would not relieve the claimant of the requirement of bringing forth competent medical evidence specifically diagnosing the claimant with COVID-19.  Additionally, the Board will most likely find that the claimant would still need to prove specific and direct exposure to COVID-19 while at work.  In a review of Board Panel decisions throughout the years, there is a lack of case law specifically dealing with airline workers and infectious/communicable disease spread while in the course of employment.  While these are unprecedented times, we do believe that each airline COVID-19 case should be taken on a case-by-case basis with the majority of the claims most likely disallowed for lack of specific medical evidence and direct and specific proof of contact and exposure to individuals diagnosed with COVID-19.

New Jersey:

Under the New Jersey Workers’ Compensation Statute, an injury is either classified as a single accident, sustaining a permanent partial (or total) disability, or an occupational disease.

N.J.S.A. 34:15-36 defines permanent partial disability and explicitly notes, “Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.” For many of the individuals afflicted, COVID-19 presents as a minor respiratory infection. The definition of permanent partial disability suggests that in those instances, COVID-19 would not be compensable. As such, an airline employee who claims COVID-19 exposure, but only manifests minor symptoms would have difficulty maintaining a workers’ compensation action.

There is also a provision for compensable occupational diseases contained in the New Jersey Workers’ Compensation Statute. Therein, a disease is deemed compensable if it arises out of or in the course of employment and is due to a material degree of causes and conditions which are characteristic of a place of employment or are peculiar to a certain trade. See N.J.S.A 34:15-31. A  single, isolated case of COVID-19 would be difficult to prove. A petitioner most likely would not be able to prove that COVID-19 was caused by a characteristic of his or her work, given the virus can be caught in the general public. The occupational exposure claims are often occur as a result of exposure over a period of time, rather than a single event. In the context of the airline industry, this would also be difficult for an employee to prove. Particularly when faced with a pandemic.

The New Jersey Workers’ Compensation Statute and case law demonstrates an absence of evidence to support the compensability of claims for infectious disease during times of a pandemic. There is, however, an exception for emergency service workers. Emergency service workers are defined under N.J.S.A. 34:15-31.4. Airline workers would not fall under these provisions. The provisions of the statutes outlining exceptions for emergency service workers are just that, exceptions to the workers’ compensation statute. While emergency service workers may be able to establish claims for exposure to infectious diseases, the statute exception was designed to provide protections to individuals on the front lines of illness exposure.

Filed Under: Blog Tagged With: New Jersey, New York

New Jersey Medical Provider Claims: What You Need to Know

07.01.2020

What are medical provider claims?

Medical provider claims are contractual disputes brought by medical providers, and medical facilities. They often arise from extraterritorial workers’ compensation claims where a claimant has some type of treatment in New Jersey. New Jersey does not have a fee schedule for medical services under its workers’ compensation structure it uses the “reasonable and customary standard”. New York, by contrast does. Medical providers and facilities often try to recover the difference between a fee schedule allowance and the New Jersey “reasonable and customary” standard which is often much higher.

Why are these claims in the Division of Workers’ Compensation?

Under the 2012 amendments to the New Jersey Workers’ Compensation Statute, the Division was given exclusive jurisdiction over these matters pursuant to N.J.S.A. 34:15-15.

The issue of extraterritorial jurisdiction is currently on appeal before the Superior Court of New Jersey, Appellate Division.

What is the statute of limitations for medical provider claims?

The Supreme Court of New Jersey held that the statute of limitations for medical provider claims is six years. See Plastic Surgery Ctr., PA v. Malouf Chevrolet-Cadillac, Inc., No. A-78/79/80, 2020 N.J. LEXIS 116, at *1 (Feb. 3, 2020).

How can we minimize medical provider claims?

1)If your company has a national presence, avoid sending claimants out of state for treatment, if the state you are sending them to does not have a fee schedule.

2)Work with bill repricing companies to determine in plain language the price of the service billed.

If we have medical provider claim petitions, what should we do?

Since the issue is on appeal in New Jersey, the best course of action is to have defense counsel answer the medical provider claims and deny in the answer additional payment for lack of jurisdiction. Defense counsel should then file a motion to dismiss for lack of jurisdiction. It is also helpful to attach proof of payment for medical services.

Are there any cases that are helpful with this issue?

There is a New York decision, Bowman v. J & J Log & Lumber Corp., 758 N.Y.S.2d 852 (App. Div. 2003). New York’s Third Department held that a claimant could treat in a neighboring state for a New York workers’ compensation claim, but medical providers would be subject to the New York Fee Schedule. This case is persuasive, as it is a New York case, but it is helpful because there is not an appellate level case from New Jersey as of this time.

Another case that we often argue is Marconi v. United Airlines, 460 N.J. Super. 330 (App. Div. 2019). In Marconi, the petitioner filed both an occupational exposure claim for his left hip and an accident-specific left hip injury claim petition. Marconi was employed by United Airlines and spent the majority of his career in Philadelphia International Airport. Marconi was a New Jersey resident and would sometimes call Newark Liberty International Airport, to speak with staff, and would sometimes go to Newark for trainings. The Appellate Division, applying a jurisdictional analysis, held that being a resident of New Jersey was not enough for New Jersey to retain jurisdiction. The Appellate Division also examined the six factors of jurisdiction from Professor Larson’s  treatises which include: 1) the place where the injury occurred; 2) the place of the making of the employment contract; 3) the place where the employment exists or is carried out; 4) the place where the industry is localized; 5) the place where the employee resides; 6) place whose statute the parties expressly adopted by contract. The Appellate Division held that the fact that United had a hub in New Jersey was not enough for Marconi to establish claims in New Jersey. The Appellate Division noted that nothing that Marconi did advanced United Airlines purpose within the State of New Jersey.


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Filed Under: Blog Tagged With: New Jersey

During COVID-19 Federal Protection May Remove the Need to Supply Temporary Disability Benefits

07.01.2020

On March 18, 2020, President Donald Trump signed into the law the Family First Coronavirus Response Act (FFCRA). Under this law, there are two components to temporarily expand benefits to workers affected by COVID-19, the Emergency Paid Sick Leave (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The Acts became effective on April 1, 2020 and will expire on December 31, 2020. The United States Department of Labor a Wage and Hour Division is responsible for enforcing these Acts.

In terms of workers’ compensation temporary disability benefits, these Federal Acts would make the need for carriers to pay temporary disability benefits unnecessary. The Acts will apply when a worker cannot work at their job site (if deemed essential) or telework due to illness, or if telework is unavailable. It is important to note that if a company temporarily closes due to COVID-19, these Acts do not apply and the employee may be eligible for unemployment benefits.

The Acts will reimburse private American companies that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for COVID-19 related reasons. These acts are meant to provide payment for employees who fall under six categories that cannot show up to work (if working for an essential business) or telework due to COVID-19 reasons. First responders and healthcare workers are exempt from these Acts. Companies with less than 50 employees may also be exempt if they can prove financial hardship by adhering to the Acts.

The Emergency Paid Sick Leave Act (EPSLA) provides employees with up to two weeks paid sick time. For full time employees, that means 80 hours of paid sick time, for part-time employees, the amount of hours is based on the amount of hours worked on average. The EPSLA caps payments at $511 a day or $5,110 total. THE EPSLA will pay at the full rate of pay for three categories: 1) the worker is subject to federal/state/local quarantine or isolation due to COVID 19 and cannot work or telework; 2) Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes; and 3) The worker is experiencing COVID-19 symptoms and awaits a medical diagnosis. 

The EPSLA also applies for three additional categories where the rate of pay is capped to 2/3 of the employee’s salary or at $200 day. These categories include: 1) the worker is caring for an individual who is subject to a quarantine or has COVID-19; 2) the worker is caring for a child whose place of care is closed due to COVID-19 reasons; and 3) the worker is experiencing any other condition substantially similar to COVID-19.

The Emergency Family and Medical Leave Expansion Act (EFMLEA) can be used for 12 weeks when an employee has to care for his or her children whose school or place of care is closed due to COVID-19 related reasons. The rate of pay for this would be 2/3 of the employee’s pay. The first two weeks are unpaid. This can only be used by employees who are not eligible for telework.

EFMLEA v. EPSLA

EFMLEA

EPSLA

Applies when:

  1. Employee can only use EFMLEA leave to care for his or her child or children whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Applies when:

  1. Worker is subject to federal/state/local quarantine or isolation due to COVID-19 and cannot work or telework is not an option.
  2. Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes
  3. Worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.
  4. Worker is caring for an individual who is subject to a quarantine or has COVID-19
  5. Worker is caring for a child whose place of care is closed due to COVID-19 reasons.
  6. Worker is experiencing any other condition substantially similar to COVID-19

How much is paid?

2/3 of the employee’s rate of pay.

How much is paid?

There is a $511 a day cap; or $5110 in total for reasons 1-3;

2/3 paid or a $200 a day cap for reasons 4-6

How long will the worker be paid?

This will last for 12 weeks; however; the worker will not receive pay for the first 2 weeks;

This is an expansion of FMLA.

How long will the worker be paid?

This is for two paid work weeks

EFMLEA v. EPSLA

EFMLEA

EPSLA

Applies when:

  1. Employee can only use EFMLEA leave to care for his or her child or children whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Applies when:

  1. Worker is subject to federal/state/local quarantine or isolation due to COVID-19 and cannot work or telework is not an option.
  2. Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes
  3. Worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.
  4. Worker is caring for an individual who is subject to a quarantine or has COVID-19
  5. Worker is caring for a child whose place of care is closed due to COVID-19 reasons.
  6. Worker is experiencing any other condition substantially similar to COVID-19

How much is paid?

-2/3 of the employee’s rate of pay.

How much is paid?

-There is a $511 a day cap; or $5110 in total for reasons 1-3

-2/3 paid or a $200 a day cap for reasons 4-6.

How long will the worker be paid?

-This will last for 12 weeks; however; the worker will not receive pay for the first 2 weeks.

-This is an expansion of FMLA.

How long will the worker be paid?

-This is for two paid work weeks

Filed Under: Blog Tagged With: New Jersey, New York

Post-Taher: Best Practices for SLU and non-SLU Claims In New York

06.26.2020

As we know in 2018, the Third Department issued a decision in Taher v. Yiota Taxi which was considered a fairly significant decision. That ruling opened the door for claimants with an injury to an extremity as well as a non-schedulable body part (generally neck and/or back) to secure a schedule loss of use award (SLU) even if there is permanency to the neck or back. Prior to that Decision, the Board had taken the position that a non-schedulable body part’s permanency trumps a potential SLU. Accordingly, an SLU could only be awarded in such a case if a finding was made of no permanency to the neck/ back. This did give rise to circumstances in which a claimant could have clear permanency to the neck or back- even based on spine surgery- but still pursue a schedule loss of use if her or she is back at work without loss of earnings.

Following Taher, the Board adjusted the way it handled these claims, but still largely maintained the position that there cannot be a permanency finding to the neck or back and an SLU. The Board created a form to be signed when a schedule loss of use is being stipulated to but the neck or back is also established. This Stipulation Attachment was addressed in the Board’s Subject Number 046-1211 of 10/4/2019.

Last month, the Appellate Division again addressed this issue in 3 decisions: Matter of Arias v City of New York, Matter of Saputo v Newsday, and Matter of Fernandez v New York University Benefits. The Court found that the Board was not properly complying with the prior Taher holding and found, “were a claimant who has sustained both schedule and nonschedule permanent injuries in the same work-related accident has returned to work at preinjury wages and, thus, receives no award based on his or her nonscheduled permanent partial disability classification, he or she is entitled to an SLU award.”

The Board has responded to these decisions and has essentially backtracked from the position it took post-Taher. The 10/4/2019 Subject Number is no longer in effect. The Board has indicated that it will now permit claimants in this situation to obtain a schedule loss of use award even though there is permanency to the neck/back. Please note that the Board has indicated that it will permit reopening of prior claims in which an SLU was not awarded because of permanency to the neck or back. If an SLU is paid and the claimant later goes out of work and is awarded PPD benefits, the carrier will be entitled to credit for the SLU award.

The decisions do contain several noteworthy provisions which we will discuss:

1.      We can no longer claim that an SLU is never payable unless a finding is made that there is no permanency to the neck/back.

2.      However, as per the recent Decisions, this is only applicable when the claimant has returned to work at pre-injury wages. Accordingly, if a claimant is working, but earning less money, or if a claimant is only pursuing the SLU award after retirement, we can argue that these holdings do not apply.

3.      Previously, even if a claimant was out of work but was found to not be attached to the labor market, an SLU would often be awarded. However, we can maintain that a claimant who is not attached to the labor market and who has permanency to the neck or back is not eligible for an SLU award.

4.      We will also take the position that if a given claimant is pursuing an SLU award when there is permanency to the neck or back, the WCLJ should address LWEC at the same hearing at which the award and permanency findings are being made. The reason for this is that such a claimant is back at work without a reduction in earnings. In most cases, that will be a very significant mitigating factor in assessing LWEC. In a hypothetical claim in which a claimant is found to have permanency to the back and is awarded an SLU, we will ask the Judge to also make a determination as to LWEC, and that said LWEC should be a very low percentage. If the claimant never reopens the claim to pursue PPD benefits, the percentage LWEC will not matter. However, because this claimant may well reopen in the future to pursue PPD benefits, a low LWEC percentage will protect us against significant future exposure for indemnity benefits.

If, in the example posed, the claimant has a claim established to the back and both shoulders with an AWW of $1,200.00 and is now pursuing permanency. The claimant is back at work full duty. If the claimant is awarded a 7.5% SLU of each arm, that award would equal 46.8 weeks at $800.00, or $37,440.00. If the claimant was also found to have a 25% LWEC. That would be worth 250 weeks of benefits at $200.00, once the cap begins to run (if ever). That gross award is $50,000.00- but we would have credit for the SLU award, which means that the PPD benefits, if ever claimed, would effectively be worth only an additional $12,560.00.

If, however, the Judge waits until the claimant goes out of work to assign an LWEC percentage, it is likely to be much higher, as the main mitigating factor- the claimant working without a loss of earnings- is no longer applicable. In addition, the claimant would be older if the Judge waits until he or she stops work, which would be a potential aggravating factor. While claimant’s counsel may object to an LWEC finding under these circumstances, our position will be that LWEC must be determined when permanency is found. Please note that even under the position we take, the number of weeks will not begin to run until the claimant goes out of work. We will also maintain that if the cessation of work is unrelated (perhaps an age-related retirement), we will maintain that the lost time is unrelated and no awards should be made.

Filed Under: Blog Tagged With: New York

Jones Jones LLC Is Proud to Announce the Opening of our New Jersey Workers’ Compensation Practice

04.15.2020

We would like to take this opportunity to thank you for playing such an important role in the rapid growth that we have experienced over the past few years.

Now it will be even easier for employers, insurance carriers, third party administrators and other businesses in New Jersey to gain access to the legal experience, innovation, efficiency and excellence that has made us a leading defense team in the workers’ compensation industry.

Clients of our New Jersey workers’ compensation practice expect to receive the same high quality, client-focused service that we have been providing in New York for over 100 years.

That includes:

  • One of the industry’s highest workers’ compensation settlement rates – a 75% claim closure
  • Responsive communication – we promise a 24-hour turnaround time for all communications.
  • An elite loss transfer recovery rate of 91.3% as compared to the industry average of 64% of amount sought.
  • And much more.

While Jones Jones LLC has a prestigious 100-year history, you can count on us to continue to evolve and expand so that you, our clients, always have responsive, convenient access to the superior legal service you need.

“Legal Defense Refreshed” is not just an empty slogan; we work hard every day to stay on the leading edge of workers’ compensation defense.

Ready to make a referral to our New Jersey workers’ compensation practice? Contacts us at clientservices@jonesjonesllc.com.

Filed Under: Blog, News Tagged With: New Jersey

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