Legal Corner

Workers' Compensation
Lawsuit over family member's COVID-19 death allowed to proceed - California

As reported in the Oct. 2021 Advisory, an employee of See's Candies contracted COVID-19 at work and apparently infected her husband who died. The employee and her daughter sued, arguing the company is liable for his death because it lacked sufficient safeguards against the virus. A trial court allowed the case to proceed and a state appellate court recently rejected the argument that the employee must file for workers compensation because her husband's death was "derivative" of her own workplace injury rather than the tort claim. Much remains to be litigated on the case.

Firefighter entitled to PTSD benefits - New York

In the Matter of Reith v. City of Albany, an appellate court reversed the decision of the WCB, which had denied benefits for a PTSD claim. The long-term firefighter argued that he had experienced many horrific incidents during his 26-year career and was diagnosed by his treating psychologist with work-related PTSD. The court indicated that a medical opinion need not be certain but must "signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility." While the WCB has broad discretion, it cannot reject outright uncontroverted medical testimony as to causation.

Deceased employee's claim for WC does not meet statutory deadline for death benefits - North Carolina

In McAuley v. North Carolina A&T State University, an employee died ten days after filing a workers comp claim for a back injury. A few weeks after his death, his widow met with the HR department to sign insurance-related papers and later testified she thought this included the death benefits under workers comp. Three years later she filed a request for a hearing with the Industrial Commission that found the request to be time-barred by the statute, which is two years for a death benefit. In a divided opinion, the Court of Appeals agreed finding that the widow's claim was separate from that of her late husband's.

Employers that reasonably contest WC claim can be held liable for attorney fees - Pennsylvania

In Lorino v. Workers' Comp. Appeal Bd., the state Supreme Court reversed a decision by the Commonwealth Court and held that when an employee prevails in work comp cases, the employer can be held liable for attorney fees, even if there is a reasonable basis to contest the case. This goes against a long-standing practice. In this case, the employer had paid for medical treatment for a work-related injury and no indemnity payments as the employee did not miss work.

Following an independent medical examination (IME) that found the worker to be fully recovered, the employer filed a petition to terminate treatment. The treatment included epidural steroid injections and the employee had received one a few weeks before the IME. Arguing that he had not fully recovered and his pain was masked by the recent treatment, he submitted medical reports to document his continued pain. He also requested $14,050 in attorney fees. A WCJ denied the employers' termination of benefits, but did not allow attorney fees, finding the employer had a reasonable basis for the termination petition. The Commonwealth Court agreed.

Upon appeal, the Supreme Court found that WCJs have discretion - that when an employer has a reasonable basis to contest, a WCJ may exclude attorney fees, but is not required to do so.

The Commonwealth Court's interpretation that fees must be excluded if an employer had a reasonable basis is incorrect.

Pharmacy cannot challenge UR determination that prescriptions are unreasonable or unnecessary and do not have due process right of notice - Pennsylvania

In Keystone RX LLC v. Bureau of Workers' Compensation Fee Review Hearing Office, the state Supreme Court ruled that a non-treating provider, like a pharmacy, cannot challenge a utilization review determination that the medications it dispensed were unreasonable and unnecessary in a fee review proceeding. Further, it reversed the Commonwealth Court's finding that such provider "be afforded notice and an opportunity to establish a right to intervene under the usual standards for allowing intervention."

Exclusive remedy bars lawsuit against parent company in employee's COVID-19-related death - Pennsylvania

In Barker v. Tyson Foods, Inc., the widow of an employee who died of COVID-19 filed a wrongful death lawsuit against the parent company, arguing that only one entity could be the employee's employer. The court found that the parent company owned, operated, and otherwise controlled the conditions of the employee's work. Therefore, the parent company was also an employer entitled to exclusive remedy protection.