Recently, our claims team at Newfront hosted a webinar on Workers Compensation Trends and the Impact on Employers Best Practices. Joining Newfront were panelists Anne E. Hernandez, James M. Cotter, and Katherine A. O’Brien from the law firm Mullen & Filippi.
The first topic of conversation included applicant attorneys filing for venues that are hundreds of miles away from where an injured worker lives and works. This oftentimes, creates a need for defense firms to petition for a change of venue. There is only a 25-day window to have the venue changed which starts as of the date of the filing of an application of adjudication not when a claims administrator or employer receives the notice. After the 25-day window, it is possible to petition for a change of venue based on good cause, however, it can be difficult to meet that standard.
The second topic covered the cross section between workers’ compensation claims-life cycle and other employment practices including the interactive process. Communication between the insurance claims administrators, medical providers, and employers is important to promoting return to work and case resolution. It is equally important to be cognizant of the fact that all communications (including emails) are discoverable. An offer by the employer to discuss work restrictions and possible accommodations with an injured worker should be made even if an employer has a reason to believe it will not be responded to or the employee will refuse. Meetings should be kept clean, straightforward, and documented. Employers should contact their labor attorneys on protocols and practices to address both temporary and permanent work restrictions.
For the third topic the audience was reminded that injured workers can get up to 104 weeks of temporary total disability, even up to 240 for qualifying cases, if supported by medical opinion. If an employee is back at work, even if on modified duties, they are not eligible to receive workers compensation disability benefits to attend medical appointments. When an injured workers’ employment status changes due to retirement, resignation, or termination, it is important to document and distinguish whether they are retiring or resigning because of the injury or for other reasons. If employees are terminated for cause, theoretically they are not entitled to temporary disability. However,a judge may be able to deem the basis for the termination as not good cause as it relates to owing disability benefits under workers’ compensation. It is crucial to have written documentation of the termination process and reasons. Company-wide policies should be consistently applied amongst all employees.
The last two topics of conversation covered the statute of limitations relative to an injured workers’ ability to file a claim and the issue of the derivative injury doctrine. Regarding the statute of limitations, in most instances, an injured worker has one year to file a claim; however, it can be dependent on when a claim form is provided to the employee which should be triggered when an employer has either actual or constructive knowledge of an injury. Constructive knowledge can be when an employer has a reasonable belief that the injury could be work related. Employers should not be afraid to ask the worker how they were injured and whether it occurred outside of work. Once again, it is imperative that employers document the employee’s file.
Lastly, a recent civil case has created concern in the industry that a long-standing principle in workers’ compensation called the derivative injury doctrine may be diluted when an employee who became infected with COVID was granted the ability to sue for the wrongful death of a spouse against their employer by the Superior Court of California. Many questions are still to be answered, but it appears as though the findings are narrow in scope and applicable to COVID. Employers should continue to be vigilant regarding COVID as one of the reasons for the suit is the allegation of the employer failing to follow COVID prevention standards.
Understand and navigating the Workers Compensation industry can be difficult. At Newfront, we are experts in the industry, can advocate for you, and can ensure you have the right type of policy for your business. Contact us to schedule an appointment.
The information provided is of a general nature and an educational resource. It is not intended to provide advice or address the situation of any particular individual or entity. Any recipient shall be responsible for the use to which it puts this document. Newfront shall have no liability for the information provided. While care has been taken to produce this document, Newfront does not warrant, represent or guarantee the completeness, accuracy, adequacy, or fitness with respect to the information contained in this document. The information provided does not reflect new circumstances, or additional regulatory and legal changes. The issues addressed may have legal, financial, and health implications, and we recommend you speak to your legal, financial, and health advisors before acting on any of the information provided.
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