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APRIL 2024 MEMBER NEWS

  • VIRGINIA


     

    The Virginia Workers’ Compensation Commission is pleased to announce the reappointment of the Honorable Wesley G. Marshall as Commissioner for his third consecutive term. Commissioner Marshall’s extensive experience and unwavering dedication have been invaluable assets to  the Commission since he began his tenure in 2012. Before his work as a Commissioner, he represented plaintiffs in workers’ compensation, employment, and other civil litigation matters as an attorney in private practice for 25 years. In recognition of his outstanding contributions to the field, Commissioner Marshall was inducted as a Fellow in the College of Workers’ Compensation Lawyers in 2015. He was appointed as President of the Southern Association of Workers Compensation Administrators in 2021, highlighting his leadership in the field of workers’ compensation. Commissioner Marshall currently sits on the Boards of Directors for the International Association of Accident Boards and Commissions (IAIABC), the National Association of Workers’ Compensation Judiciary, and Kids Chance of Virginia.

    Since 2012, Commissioner Marshall’s dedication and commitment to serving injured workers, victims of crimes, employers, and related industries have been instrumental to the Commission’s mission. The Commission invites everyone to join in congratulating him on his reappointment and continued service to the Commonwealth of Virginia.

     

OCTOBER 2023 PRESIDENT’S LETTER

Greetings from the President

By Sheral C. Kellar

Workers’ Compensation Judge – Chief

Office of Workers’ Compensation Administration

Louisiana Workforce Commission

 

 

I learned a jingle in elementary school.  For some unknown reason, it is on auto-repeat in my head.

“We’re all in our places, with smiling new faces.  Oh, this is the way to start a new day!”

In early August, my tenure as President of SAWCA ended.  I wanted to sing the jingle, as I opened SAWCA’s annual convention in Amelia Island, but I did not.  As I begin my tenure as President of the NAWCJ, I wanted to open my NAWCJ college host day with “We’re all in our places …”, but again I did not.  Tourgee Debose, my piano teacher of 10 years, said practice makes perfect.  My daughter says practice doesn’t make perfect, practice makes permanent.  I am inclined to believe my daughter.  The song never ends.  It is permanently in my head!

As SAWCA president and now as NAWCJ president, I looked out at the smiling faces of hundreds of SAWCA and NAWCJ attendees anxiously awaiting the sage presentations of industry leaders, attorneys, judges, and others.  They were not disappointed.  To stimulate dialogue and debate some presenters exercised the Socratic Method. Others presented materials that contained no answers, only more questions.  These presentations provoked critical thinking in areas yet to be confronted.   Smiling faces in deep thought!  Now, this is the way to start a new day.

On Wednesday, August 23, 2023, the gavel passed from immediate past-President, Honorable Pam Johnson of Tennessee, to me, Sheral Kellar, of Louisiana.   I have lofty goals for the association.  As President, I hope to provide leadership that will:

  • Grow the association;
  • Increase the number of participants at the annual college;
  • Continue the collaboration with other stakeholders to present educational forums regarding workers’ compensation;
  • Support the Lex and Verum by providing frequent news of interest to our members; and
  • Encourage the teaching of workers’ compensation in law schools

I may not achieve all of them, but I believe it is better to shoot for the moon.  Even if I miss, I’ll land among the stars. (thank you Leslie Brown).  I’m excited.  I am honored and extremely humbled by your confidence in my ability to lead the association.  With your help and your guidance, we can achieve these goals and so much more.  This is my start of a brand new day.  I’m smiling at the many possibilities.  Let’s end like we began, “We’re all in our places, with smiling new faces.  Oh, this is the way to start a new day!” 

ARE YOU READY?

 

 

PEOs – HOW TO PROSECUTE AND DEFEND CASES INVOLVING EMPLOYEE LEASING AGREEMENTS

By:  Hon. Robert G. Rassp, Editor-In-Chief of Rassp & Herlick

 

DISCLAIMER: The opinions expressed in this article are those of the author and are not those of the California Department of Industrial Relations, the Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board.  This article is not intended to serve as a legal brief or to provide legal advice and counsel are advised to consult with their own resources in researching specific issues that may arise in cases involving employee leasing.

INTRODUCTION

What are professional employer organizations, “PEOs?”  Are employee leasing agreements and labor contracts valid in California?  How does workers’ compensation insurance coverage work in employee leasing agreements?  Who pays when a leased employee gets injured on the job? Are these like a shell game or peeling an onion? How does an attorney conduct discovery in these cases? Can employment be created by contract and not just under the Borello[1] factors?

This article is a journey through the creation of PEOs, how they are used in industry and what discovery counsel need to conduct in order to prosecute and defend these cases. Before you read on, you might want to read the case of Miceli v. Jacuzzi (2006) 71 Cal. Comp. Cases 599 (WCAB en banc decision).  This case was originally referred to as the “Remedy-Temp” case, one of the earliest cases involving leased employees, and if you read this case and its earlier decisions your head will spin.  Wait until you complete this article and you will understand that happened.  By the way, the Miceli case started with a finger injury. Twenty years ago, Miceli was a big headache for DWC Assistant Chief Mark Kahn and Judge Robert Hjelle.  PEO cases continue to vex the workers’ compensation legal community with everyone pointing fingers at one another.  Hopefully this article will shed some light on the confusion.

 WHAT IS A PEO OR EMPLOYEE LEASING COMPANY?

A PEO, or professional employer organization, is a business entity that hires out employees to specific companies or clients of the PEO to perform work at the customer or client location. Think in terms of one company leasing its employees to another company. Employee leasing occurs in many industries where the number of employees fluctuate based on operational demand within those industries. PEOs got their start in the entertainment industry—in movie and television production.

For example, it is not unusual for a movie production to ramp up the number of employees during the production period of filming scenes at a studio and on location.  Many movie or television productions by Disney, Universal Studios, Sony Pictures and even independent production companies will hire a set of core employees who work in the various production fields, from talent to camera operators, to set builders to production assistants, etc.

Some of these employees would work on a movie or T.V. production side by side with temporary employees who receive payroll from Entertainment Partners (EP) or Cast & Crew Entertainment (C&C).  The employees working under EP or C&C would not be the employees of the production company, but they would work out of the same union shop that the production company employees work from with the same pay, retirement benefits, hours, and other employee benefits.  The difference is that the EP and C&C employees would end their relationship at the conclusion of the TV or movie production and would move on to other entertainment production projects by any other production company. It is not unusual for hair and make-up artists, set makers, production assistants, gaffers, camera operators, etc. to have 30-40 employers during a 30-year career in the entertainment industry due to the outsourcing of skilled workers from major production companies as a result of employee leasing agreements.

The practice of employee leasing expanded over the last thirty years to include other industries such as agriculture (farm labor agreements), logistics, construction trades, warehousing-distribution centers, garment industry, and manufacturing. There are many PEOs in existence due to the Ports of San Pedro and Long Beach where hundreds of thousands of loads from ships are placed on trucks and sent to the Inland Empire for placement on railroads and sent to other interstate trucking distribution centers. The number of employees along the logistics supply chain varies and is amenable for PEO employee leasing agreements to proliferate. See Labor Code section 2810.

In the construction trades as well, there are many PEOs within a specific trade—examples include Barrett Business Services, Inc., Roto Rooter plumbing franchisees, and other companies that combined specific trades with union and non-union shops.

INSURANCE COVERAGE FOR PEOs

Many PEOs have a high deductible workers’ compensation insurance policy which becomes a problem if premiums are not paid, money is diverted to shell companies under a “employer service agreement” between a PEO and a middleman company, such as a human resources administrator, or the PEO declares bankruptcy.  One must bear in mind that workers’ compensation insurance is one of the most highly regulated forms of insurance in the State of California.

In order to fully understand PEOs, you must first understand the statutory mandate for employers to have coverage for workers’ compensation liability.  Labor Code Section 3700 provides three ways for an employer to have coverage for workers’ compensation. The first way to comply with Section 3700 is to have an insurance policy of workers’ compensation issued by an insurance company pursuant to the Insurance Code and Title 10 of the California Code of Regulations. The second way to comply with Section 3700 is for an employer to obtain a certificate of self-insurance approved by the Director of the Department of Industrial Relations (DIR). The third way to comply with Section 3700 is to obtain permission from the DIR Director to self-insure by public entities, including joint powers authorities (such as school districts or utilities).  A fourth way to be “covered” for workers’ compensation liability is to be “legally uninsured.”  The only employer that is allowed to be legally uninsured for workers’ compensation liability is the State of California and its sub-agencies.  

Labor Code Section 3701.9 prohibits PEOs and employee leasing organizations from being self-insured as of January 1, 2013.  A certificate of consent to self-insure that had been issued to a PEO was revoked as of January 1, 2015. The reason this legislation was enacted is because many PEOs did not have sufficient funds to pay for workers’ compensation claims even though they had obtained a certificate of self-insurance under Section 3700(b).

GENERAL-SPECIAL EMPLOYERS

What is the legal basis for PEOs and employee leasing companies?  Counsel must refer to Labor Code Section 3602(d)(1) which governs general and special employees.  This section must be read together with Insurance Code Section 11663.

Labor Code Section 3602(d)(1) states:

For the purposes of this division, including Sections 3700 and 3706, an employer may secure the payment of compensation on employees provided to it by agreement by another employer by entering into a valid and enforceable agreement with that other employer under which the other employer agrees to obtain, and has, in fact, obtained workers’ compensation coverage for those employees. In those cases, both employers shall be considered to have secured the payment of compensation within the meaning of this section and Sections 3700 and 3706 if there is a valid and enforceable agreement between the employers to obtain that coverage, and that coverage, as specified in subdivision (a) or (b) of Section 3700, has been in fact obtained, and the coverage remains in effect for the duration of the employment providing legally sufficient coverage to the employee or employees who form the subject matter of the coverage. That agreement shall not be made for the purpose of avoiding an employer’s appropriate experience rating as defined in subdivision (c) of Section 11730 of the Insurance Code.

Labor Code section 3706 states, in essence, that if an employer is willfully uninsured and has not complied with the mandate for coverage for workers’ compensation liability under Labor Code Section 3700, any injured employee may elect to sue the employer for damages in tort under the theory of negligence per se—violation of Labor Code Section 3700 to have coverage for its employees.  

Counsel must read Labor Code Section 3602(d)(1) together with Insurance Code Section 11663:

As between insurers of general and special employers, one which insures the liability of the general employer is liable for the entire cost of compensation payable on account of injury occurring in the course of and arising out of general and special employments unless the special employer had the employee on his or her payroll at the time of injury, in which case the insurer of the special employer is solely liable. For the purposes of this section, a self-insured or lawfully uninsured employer is deemed and treated as an insurer of his or her workers’ compensation liability.

In other words, liability for workers’ compensation benefits follows payroll. As will be discussed below, counsel MUST always establish who paid the injured worker because payroll is the hallmark of liability.  Establishing payroll is not straightforward in every case—there are some PEOs who pay the leased employee their net pay while another entity that has a “employee leasing service agreement” with the PEO who pays the payroll deductions, or vice versa.  This process can be a shell game or like peeling an onion to figure out who is liable for workers’ compensation benefits. Proper discovery in the event of an injury of a special employee is essential to the prosecution and defense of workers’ compensation cases involving a general and special employer.   Counsel must join everyone—the PEO, its employee leasing service companies, the special employer, and all of the insurance companies for each entity, if any.

Sometimes counsel will see in documents obtained from a PEO or employee leasing company a typical lease that covers employees who are leased but who work for a special employer that may have operations in many states, including California. There are many entities that use the term, “LCF” which means “Leased Coverage for…”  So “XYZ Employee Leasing, Inc. LCF Taco Bell #150” means that some or all employees who work at that Taco Bell location are paid by XYZ Employee Leasing Company as the general employer and are covered by XYZ’s workers’ compensation insurance policy.  Taco Bell #150 is the special employer and would be listed on the XYZ Policy Information Page (the Declarations) and WCIRB forms as the covered special employer. XYZ’s policy would only cover the employees who work at Taco Bell #150 who receive payroll from XYZ Employee Leasing Company.  If Taco Bell #150 had its own employees who receive payroll directly from Taco Bell #150, then those employees would have to be covered by an insurance policy issued strictly for those employees who received payroll directly from Taco Bell #150.  So the special employees of Taco Bell #150 are the ones who are paid by XYZ Employee Leasing, Inc.   Counsel has to get the nomenclature clear in their minds in order to understand the contractual relations between a general employer and a special employer.

RULES OF THE ROAD IN EMPLOYEE LEASING AGREEMENTS

There are some basic rules involved in determining liability for workers’ compensation benefits in a case involving a PEO or under an employee leasing agreement.  First, general and special employers must have a written contract. The general employer provides payroll to the special employee. The general employer provides workers’ compensation insurance coverage for the special employee.  The special employer’s workers’ compensation policy does not cover its special employees because the general employer’s does. Liability for workers’ compensation follows payroll per Insurance Code Section 11663.

Since many cases before the WCAB involve the issues of employment, employee leasing agreements, insurance coverage, and liability under a workers’ compensation insurance policy, a discussion of the business of workers’ compensation is necessary.

PAYROLL AND JOB CLASSIFICATION DRIVES PREMIUMS[2]

It should be noted at this point that premiums for workers’ compensation insurance coverage are based on two things—payroll and job classification. Remember, insurance premiums are based on risk of loss.  For example, a construction worker will require a higher insurance premium than an office clerk.  When a company obtains workers’ compensation insurance coverage, it is required to pay a deposit premium that is determined by the number of employees, their job classifications, and the amount of payroll. At the end of a month, quarter, half a year, or year, the employer’s payroll is audited by the insurance company’s underwriting department, and the ultimate premium owed is calculated, billed, and paid.

GENERAL PROVISIONS OF WORKERS’ COMPENSATION INSURANCE POLICIES

A workers’ compensation insurance policy is automatically renewed every year unless it is non-renewed by the insurance company, or cancelled due to non-payment of premium by the employer, or the employer terminates the policy for business reasons or  changes insurance companies. Premiums can be increased due to the experience modification which is based on the claims history and claims costs for the employer’s past history.

Workers’ compensation insurance policies are unrestricted unless there is an exclusionary endorsement submitted through the WCIRB (Workers’ Compensation Insurance Rating Bureau[3]) to the State of CA Insurance Commissioner for approval.   A basic rule of workers’ compensation law is that a special employer has joint and several liability for workers’ compensation benefits of its special employees if the general employer flakes out and does not cover a special employee’s alleged work injury.  There is one big exception to this rule.  A special employer is not liable for its special employees if there is an exclusionary endorsement on the special employer’s workers’ compensation policy for its non-special employees.  In order to fully understand this crucial exception to liability, counsel should become familiar with the discovery necessary to prosecute or defend cases involving general-special employers.

Remember, workers’ compensation insurance policies are one of the most heavily regulated forms of insurance in existence.  Counsel must refer to Insurance Code Sections 11650-11664.  The relevant Insurance Code sections are in the “Blue Book” or “Workers’ Compensation Laws of California,” 2022 edition (LexisNexis).  Title 10 Cal. Code of Regulations sections 2218 and 2250 through 2259 implement those Insurance Code Sections. Title 10 of the California Code of Regulations (CCR) are not in your Blue Book but can be found on line since Barclays allows public access to the CA Codes of Regulations.

Title 10 CCR 2259 allows use of limiting and restricting endorsements of workers’ compensation insurance policies.  Specifically, section 2259(a)(7) allows a policy “To exclude liability of an employer for employees who are covered under another employer’s workers’ compensation policy pursuant to an agreement made under Labor Code Section 3602(d).”  Section 10 CCR 2266 mandates any restrictive endorsements to a workers’ compensation policy be submitted to the rating organization (WCIRB) and not to the Department of Insurance for approval.  The WCIRB submits restrictive endorsements to the Insurance Commissioner for approval. The law changed effective in 2016 that mandates Insurance Commissioner approval of restrictive endorsements but the request for approval must be made by an insurance company’s underwriting or government relations department through the WCIRB.

The regulations separate routine amendments to workers’ compensation policies from requests for approvals of restrictive endorsements.  In accordance with Title 10 CCR 2251 and 2254, the WCIRB submits to the Insurance Commissioner any non-standard policy forms, endorsement forms, or ancillary agreements, and the Insurance Commissioner has 30 days to deny the endorsements; otherwise, silence means approval.  In contrast, as discussed above, Section 10 CCR 2259 specifically allows for restrictive endorsements, but they have to fall under subsections 2259(1) through (10) and be submitted by the WCIRB for approval by the Insurance Commissioner.

WHAT IS IN AN UNDERWRITING FILE?

In order for counsel to understand the discovery process in cases involving insurance coverage, PEOs, and employee leasing agreements, it is necessary to learn about what to look for in an insurance company’s underwriting file. 

The first document to look for is the “Information Page” or Declarations of a workers’ compensation insurance policy.  The examples of documents given in this article are a public record and are taken from a published arbitration decision that is a Noteworthy Panel Decision in the LexisNexis database.  Most insurance policy’s Information Page actually consists of hundreds of pages that constitute the entire insurance policy that is specifically issued to an employer. 

The example discussed here involves a company called “RSI Home Products” hereinafter called “RSI.”  RSI manufactures wood cabinets for kitchens and bathrooms.  They have operations in 28 states and have at least three locations within California.  RSI was insured by Travelers Property Casualty Company of America for its regular employees in California. 

RSI Products entered into an employee leasing agreement pursuant to Labor Code Section 3602(d)(1) with Select Staffing, a PEO.  Select Staffing had two policies—one with Kemper and another one with Ace American Insurance Company. 

Some RSI employees were listed under the Kemper policy, as Select Staffing was a PEO general employer with a contract with RSI as a special employer.  Select Staffing was the general employer who agreed in a written contract to provide payroll and workers’ compensation insurance coverage for some people who were assigned by Select Staffing to work at RSI Products locations in California.

The employees paid by Select Staffing who worked at RSI Products were special employees of RSI Products. RSI Products did not pay payroll to the special employees who worked at their California locations because Select Staffing did. So employees of Select Staffing worked side by side with employees of RSI Products. Also, the ACE American policy with Select Staffing did not list RSI Products under their policy.

The examples below are part of the record in the case of Lorenzo Toscano Corona v. Koosharem dba Select Staffing, (RSI Home Products), 2016 Cal. Wrk. Comp. P.D. LEXIS 542 (Appeals Board noteworthy panel decision).

Here is an example of an Information Page or “Declarations Page”:

This policy was incepted on March 6, 2010 and automatically renewed annually every March 6 thereafter until cancelled. Paragraph 3A is always one of the most important provisions in any workers’ compensation insurance policy because it shows which states RSI has coverage by Travelers for its employees who work in those listed states. 

Paragraph 3B shows the maximum policy limit is $1,000,000 for each accident, each disease, and each employee.  Insurance companies will obtain their own separate policy to cover losses above the $1,000,000.00 policy limits and that insurance product is called “Reinsurance.” Liability for workers’ compensation benefits is not capped and, in catastrophic cases, Travelers would have to pay benefits even if liability exceeds the policy limit.

Employers provide compliance with Labor Code Section 3700 by having a minimum policy like this one with Travelers, but Travelers would pay benefits if its liability exceeds the $1,000,000 policy limit—any amount of liability over $1,000,000 in a case would be paid by Travelers through a reinsurance policy it obtained separately.  Self-insured employers can also obtain reinsurance policies that cover losses greater than what their self-insured limit was established (also usually $1,000,000 per loss).

Paragraph 3C, “Other State’s Insurance” means if an RSI employee works at one of the states listed in this paragraph, their injuries would be covered under those state’s workers’ compensation system but excludes monopolistic fund states, such as Washington State or the other 13 NCCI[4] states.  This paragraph is included in a standard policy in case RSI decides to open new operations in a state where it has not yet conducted business.

The Information Page actually includes many additional pages.  In this case, the underwriting file for this Travelers policy was over 2,000 pages with the Information Page actually consisting of over 250 pages.

The second page of the Information Page shows an estimated premium for the RSI policy with Travelers, based on prior payroll and job classifications. RSI had rough carpenters, finish carpenters, outside sales staff, and office staff. Since this was a renewal of the policy, Travelers and RSI had a good idea of what the following year’s payroll would be, along with job classifications. For renewal of this policy for policy period March 6, 2011 to March 6, 2012, Travelers calculated a premium deposit of $207,343.00. At the end of each policy period, Travelers would audit RSI’s payroll and job classifications in order to bill them for a final annual premium.

This page shows the physical locations of RSI operations in California, along with columns that show the estimated payroll, rating of job classification premium per $100.00 of wages, and the estimated premiums for each classification of jobs performed. At the end of the policy year, RSI would complete a payroll report that captures the actual payroll for each job classification so that Travelers could calculate the actual premium due for the previous policy period.  Again, the payroll reports could be due annually, semi-annually, or monthly depending on the terms of the insurance policy.  Payroll reports also usually have each employee’s name, social security number, job classification, and total payroll amount for a given period of time. All of this information is discoverable during litigation at the WCAB or in arbitration proceedings.

This page shows the estimated payroll of $7,029,302.00 in wages paid for rough carpenters who make the wood cabinets, with a premium of $8.38 per $100.00 of wages or the total estimated premium of $589,056.00.  Finish carpenters are rated at $7.43 per $100.00 of wages with no estimate of total wages; outside sales employees estimated wages are $419,339.00 for a premium of $.70 per $100.00 wages of $2,935.00; and clerical office staff of $13,901,003.00 in wages for a premium of $.58 per $100.00 wages of $80,626.00.

The next two pages, shown below, is a letter from Travelers’ Government Affairs representative to the WCIRB requesting permission from the State of CA Department of Insurance through the WCIRB to allow an exclusionary endorsement of employees who work at RSI locations, are paid by Select Staffing, and are covered by a general employer-special employer agreement pursuant to Labor Code Section 3602(d)(1).  Select Staffing had Kemper Insurance Company provide insurance coverage for the Select Staffing employees who worked at RSI locations in California.

This letter was a crucial piece of evidence submitted at arbitration proceedings where CIGA claimed there was “other insurance” pursuant to Insurance Code Section 1063.1(c)(9).  This exclusionary endorsement prevented Travelers from having liability in a case involving an employee of Select Staffing who was injured while working at an RSI facility in California. The details of this case are discussed below.

This is what an exclusionary endorsement for general-special employees looks like.  Notice that this Endorsement specifically cites the language in Labor Code Section 3602(d)(1).  This endorsement also warns Travelers that if Select Staffing does not secure workers’ compensation insurance coverage for RSI’s special employees, then Travelers would be liable despite having this exclusionary endorsement. In fact, Select Staffing did secure coverage by Kemper for RSI’s special employees at the time this exclusionary endorsement was approved. However, trouble occurred later when Kemper was declared insolvent, and liquidated, and its pending claims were taken over by CIGA.

This is a letter from the WCIRB to the Insurance Commissioner indicating that the WCIRB has approved the exclusionary endorsement for Travelers that excludes workers’ compensation insurance coverage for RSI’s special employees who are insured under the PEO Select Staffing’s general employer policy with Kemper.  Everything is fine until Kemper went insolvent and CIGA took over its claims.

APPLICATION OF RULES GOVERNING PEOs AND EMPLOYEE LEASING

There are some basic rules for counsel to follow involving PEOs, employee leasing agreements, and workers’ compensation insurance coverage.

  • Workers’ compensation insurance policies are automatically renewed every year unless cancelled by the insured or insurer (for non-payment of premium, employer misrepresentations, or the insurer decides not to insure the type of business). Ins. Code section 676.8.
  • “Employment” between the injured worker and the special or general employer is a different analysis under Borello than “Employment” for insurance coverage purposes. See G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 50 Cal. Comp. Cases 80.
  • “Employment” for insurance coverage purposes can be created by contract between entities.

OWNER CONTROLLED INSURANCE PROGRAMS (OCIP)

Do not confuse PEOs and employee leasing agreements pursuant to Labor Code Section 3602(d)(1) with OCIPs (Owner Controlled Insurance Programs).  An OCIP involves an agreement where a general contractor carries workers’ compensation coverage for all employees of its own employees and all employees of the sub-contractors who work on a site-specific project.

These OCIP agreements usually involve public works projects or large developments.  Some examples of OCIP agreements include the development of the Metropolis twin 51 story mixed use buildings in downtown Los Angeles, the San Diego Convention Center, and the Purdue single-family development project in the City of Santa Clarita.

All sub-contractors in an OCIP project must have their own workers’ compensation insurance coverage for its own employees regardless of where they work.  Payroll for the sub-contactor’s employees are backed out of the premium calculations for the sub-contractor’s own policy, and the payroll is transferred for calculation for the premiums paid by the OCIP general contractor.  Usually the master workers’ compensation insurance policy for the general contractor that covers all sub-contractor employees involves a different insurance carrier from the ones that insure the sub-contractor companies.

An important note is appropriate here:  when counsel obtains WCIRB records of large development companies, sometimes many different insurance companies will appear on a WCIRB list for a specific period of time.  Each insurer is not listed as an OCIP policy so counsel has to look further to determine which policy is the insurance policy for the general contractor and only covers the general contractor’s own employees as opposed to policies that are strictly site specific and cover a large development project, including  employees of the general contractor plus all of the sub-contractor’s employees who work at a specific site.

DISCOVERY IN PEO AND EMPLOYEE LEASING CASES

Cases involving PEOs and employee leasing arrangements create a nightmare for counsel who is not familiar with the proper discovery necessary to prosecute or defend them. The first question Applicant’s attorneys need to ask in every case is who paid the Applicant their payroll on the alleged date of injury?   Remember, Insurance Code section 11663 says liability for workers’ compensation benefits follows payroll. Applicant’s counsel at intake should obtain from the injured worker payroll stubs, W-2 forms, US Treasury Form 1099, and even income tax returns. Many PEOs will have more than one entity involved in providing payroll to employees, including at times “middleman” or intermediary companies. In fact, there have been cases where the general employer pays the general employees their net pay per pay period and another company pays the payroll taxes. That is exactly what occurred in the Serrano case discussed below.

Counsel needs to obtain the underwriting file for the general employer’s and special employer’s respective workers’ compensation insurance policies. Issuing subpoenas for the claims file will not get you there!  Usually the claims department is completely separate from an insurance company’s underwriting department and, in many situations, a claims professional may not even have access to an underwriting file.  When a claim is filed, the only thing a claims professional needs to do is to confirm with the underwriting department that the employer’s policy is in effect and was not cancelled on the alleged date of injury. That is the extent of the claims examiner’s contact with an underwriting department.

Counsel should obtain the following documents from the underwriting files for the general employer and special employer:

  • Application for workers’ compensation insurance The application will contain valuable information about the company seeking insurance coverage—what the company does, what locations the employees will work at, what type of product or service is provided, whether employees travel out of state, and the types of jobs that are to be covered by the policy plus an estimated payroll for each job.
  • Information Page. What does Information Page say? (They are standardized throughout the country.)
  • Exclusionary endorsements. Are there any exclusionary endorsements? If so, how do they affect coverage for the Applicant’s alleged injuries?
  • Correspondence with Insurance Commissioner or WCIRB. Look for letters to or from the Insurance Commissioner or to WCIRB from the general and special employer’s insurance company, respectively, requesting an exclusionary endorsement from the inception date of the policy through the alleged date(s) of injury claimed by the Applicant.
  • Have there been any amendments to the policy since its inception?
  • Notices of cancellation. Are there any notices of cancellation of the policy? If so, when and was the policy reinstated and, if so, when?
  • Payroll reports. Look for payroll reports for years the alleged injured worker was employed there.
  • Written contracts between general employer and special employer. Obtain the written contracts between the general employer and the special employer.
  • Contract between PEO and any company claimed to be part of PEOs “service agreement.” Obtain any contract between the PEO and any company claimed to be part of the PEO’s “service agreement.” Simply put, subpoena contracts between the general employer and special employer and any intermediary companies. Many intermediary companies have names with the term “Human Resources” or “HR” embedded.  Sometimes these intermediary companies are owned by the same people or company that own the PEO. Sometimes a PEO itself has the term “HR” in its name. This is where counsel has to peel the onion, and name every entity along this chain from the general employer to the intermediary companies, if any, to the special employer.
  • SDT payroll records/personnel file for the injured worker from the general employer AND the special employer. Sometimes, injured workers work for a PEO or employer leasing company at different times, e.g., during a “try-out” period they may work first for the general employer, and then, the special employer at some point later directly hires the person.  If the employee files a cumulative trauma injury claim, counsel would have to name both the general and special employer and their respective insurers.  
  • Statutory material. Also, counsel is strongly advised to read Labor Code Section 5500.5(a) that determines liability for workers’ compensation benefits in a cumulative trauma claim if there is a gap in insurance coverage by an employer (general or special) along the period of injurious exposure. So liability for the entire cumulative trauma injury may fall on one insurance company that had coverage during any period of employment the injured employee worked for the general or special employer.
  • Copies of payroll reports sent the year of the injured worker’s alleged injury. If it is a cumulative trauma, then the last year of injurious exposure if there is insurance coverage, or the portion of insurance coverage during any period of injurious exposure.
  • Counsel should also consider deposing the PMK for the policy (usually the insurance company’s underwriting manager).

 CASE LAW PERTAINING TO PEOs AND EMPLOYEE LEASING

The discussion of case law here will get counsel started on understanding how the Appeals Board and Courts of Appeal have developed decisional law pertaining to employee leasing and liability for workers’ compensation benefits.

When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee’s activities, a ‘special employment relationship’ arises between the borrowing employer and employee.”  Caso v. Nimrod Productions (2008) 163 Cal. App. 4th 881, 888-889; March v. Tilley Steel Co. (1980) 26 Cal. 3d 486 [45 Cal. Comp. Cases 193] (“Marsh”); Kowalski v Shell Oil Co. (1979) 23 Cal. 3d 168 [44 cal. Comp. Cases 134] (“Kowalski”).

A special employer is liable for an injured employee for workers’ compensation benefits, and the determination of whether a special employment relationship exists is a question of fact.  Ibid.

A general and special employment relationship can be established by contract between a general employer and a special employer.  See Labor Code Section 3601(d)(1); Jesus Felix Serrano v. Exact Staff (2016) 81 Cal. Comp. Cases 777 (writ denied); Lorenzo Toscano Corona v. Koosharem dba Select Staffing, 2016 Cal. Wrk. Comp. P.D. LEXIS 542 (Appeals Board noteworthy panel decision).  The Serrano case specifically indicates that employment can be created by contract for the purposes of insurance coverage and liability for workers’ compensation benefits.

In Serrano, the Applicant was employed through a general employer, Exact Staff, which entered into two contracts.  The first contract was with the special employer, Service Connection, where the Applicant actually performed duties as a warehouse worker and where Applicant sustained injuries when crashing a forklift.  The other employment was with HR Comp, a human resources management company that had a service agreement as a PEO with Exact Staff.  The general employer, Exact Staff, paid the Applicant their net payroll.  HR Comp paid the payroll taxes to the state and federal government, and also paid workers’ compensation premiums to Travelers which insured HR Comp. Here, the general employer Exact Staff delegated its duty under Labor Code Section 3602(d)(1) to the PEO HR Comp to carry workers’ compensation insurance coverage for the special employees of Service Connection.

Litigation among Exact Staff, HR Comp, and Service Connection occurred over insurance coverage and workers’ compensation liability for Applicant’s injury from the forklift accident.  In addition, Travelers contended that its policy with HR Comp was procured by fraud and misclassification since the policy was obtained on line and HR Comp represented in the application for insurance that it had one clerical employee when, in fact, it covered payroll deductions for 50 warehouse workers.

The arbitrator[5] held that HR Comp was an employer of the Applicant that was created by contract even though the Borello factors did not apply. So there was joint and several liability between the general employer Exact Staff, the intermediary payroll PEO human resources company HR Comp who paid the payroll taxes, and the special employer Service Connection where the Applicant actually worked. Counsel who defends or prosecutes PEO cases are strongly urged to read the Serrano case so that the understanding between the factual and legal aspects of PEO cases can be best understood.

The liability of general and special employers for compensation benefits is joint and several.  Fireman’s Fund Indemnity Co. v. State Compensation Insurance Fund (1949) 93 Cal. App. 2d 408 [14 Cal. Comp. Cases 180].  This is the most important case on the issue of who is liable for workers’ compensation benefits in employee leasing cases.  As counsel can see, the law has been well settled since 1949.  The key is for counsel to obtain the contracts between the different entities to see who is the general employer and who is the special employer and whether any other entity is involved in providing payroll, or payroll deductions, and/or human resources services by contract. In many cases, like in Serrano, a PEO can be the general employer or an intermediary human resources company, and the special employer is the entity where the injured employee actually works.

Circling back to the RSI case example, the question presented in that case was whether Travelers who insured the employees of RSI, but not their special employees, had a valid exclusionary endorsement for RSI’s special employees (because Kemper insured those employees under Select Staffing’s general-special employer contract with RSI).

To properly exclude liability by way of an exclusionary endorsement and to exclude liability for an Applicant’s injuries under Form 04 03 17 (the current WCIRB form that is called an exclusionary endorsement under a general-special employer agreement—Select Staffing from our example above), an insurer for a special employer (RSI Home Products) must show:

  1. The insurer received approval to use the endorsement form from the Insurance Commissioner through the WCIRB;
  2. The special employer [RSI Home Products] entered into a valid and enforceable Labor Code Section 3602(d)(1) agreement with the general employer [Select Staffing]; and
  3. The general employer obtained workers’ compensation coverage for the excluded employees.

In this case, the general employer’s insurer (Kemper) went insolvent, and CIGA alleged there was “other insurance” in the form of Travelers [insurance for the special employer RSI] and ACE [the general employer’s insurer but for other special employers and not for special employer RSI Home Products].  The outcome of Lorenzo Toscano Corona v. Koosharem dba Select Staffing, 2016 Cal. Wrk. Comp. P.D. LEXIS 542 (Appeals Board noteworthy panel decision) was that Travelers had a valid exclusionary endorsement and ACE did not[6].  Therefore, upon the insolvency of Kemper (for the general employer Select Staffing), Travelers, as the insurer for the special employer RSI, was not “other insurance” since it had a valid exclusionary endorsement for RSI’s special employees.  However, ACE’s insurance policy for Select Staffing was held to be an unrestricted policy and was “other insurance” under Insurance Code Section 1063.1(c)(9) and, thus, liable even though the ACE policy did not name RSI as a customer under Select Staffing’s PEO policy with ACE.

Counsel should read the Serrano case along with Lorenzo Toscano Corona v. Koosharem dba Select Staffing, 2016 Cal. Wrk. Comp. P.D. LEXIS 542 (Appeals Board noteworthy panel decision).  Travelers had a valid exclusionary endorsement for RSI special employees, and ACE did not. ACE was considered “other insurance” under Insurance Code Section 1063.1, and Travelers got off the hook.  ACE eventually took over defense of the Toscano Corona case, and settled the case in chief with the Applicant via a Compromise and Release for $30,000.00.

In any insurance coverage dispute, counsel should refer to the relevant statutes:  Insurance Code Sections 11650-11660 which combined say that WC insurance policies are unrestricted and unlimited.  Endorsements that limit or restrict coverage of WC policies are subject to prior approval by the Insurance Commissioner through the WCIRB. See Insurance Code Section 11657 and Title 10 Cal. Code of Regulations sections 2261 and 2262.  Most importantly, insurance companies have the burden of proof that they have a restricted endorsement.  Ibid.

See also Proulx Mfg. Co. v. WCAB (Bahney) (2010) 75 Cal. Comp. Cases 782 (writ denied).  This case nicely parallels the facts in the Select Staffing/RSI Home Products case with the same result—the insurer for the special employer, Proulx, was considered “other insurance” pursuant to Insurance Code Section 1063.1(c)(9) when the insurer for the general employer, Allied, became insolvent and the California Insurance Guarantee Association had to take over any covered claims and seek reimbursement and liability from the special employer’s insurance company.  In Proulx Mfg. Co. the special employer’s insurer did not have an exclusionary endorsement for their special employees. As a result, the special employer’s insurer had to reimburse CIGA and pay future benefits.

WHAT IF A PEO, INTERMEDIARY COMPANY OR SPECIAL EMPLOYER HAS NO WORKERS’ COMPENSATION INSURANCE COVERAGE?

There are many legitimate PEOs, employee leasing companies, and human resource administrative companies who assist special employers in handling payroll and other human resource services, especially for companies who have fluctuating operational needs or who do not want to pay their own employees for management of personnel. 

However, there are also many unscrupulous companies that exist who do not play by the rules.  Cases that arise out of these entities, where one or more of them are uninsured for workers’ compensation liability coverage under Labor Code Section 3700, result in prolonged litigation and delay of receipt of benefits.  When a PEO, intermediary company, and/or special employer are willfully uninsured, then the provisions of Labor Code Sections 3710 through 3733 apply and the injured employee may pursue their action through the uninsured employer’s benefits trust fund program (UEBTF) upon proper joinder of them and the Office of the Director’s Legal Department (OD Legal).

There are many cases where some of the involved entities do have workers’ compensation insurance coverage while others don’t, and joinder of the UEBTF is still necessary so that the people who cause the uninsured status of an entity are held to answer, along with any substantial shareholders for that uninsured entity if it is a corporation.

WCAB TRIAL OR ARBITRATION OR BOTH?

In cases that involve a PEO, employee leasing contracts, and general-special employer relationships, the question arises: which forum is the proper one for litigation over issues involving these entities?  When do you go to court, and when do you go to arbitration?

Many times, counsel will appear at a WCAB office and will ask for the presiding judge to refer the matter to mandatory arbitration pursuant to Labor Code Section 5275(a)(1) over insurance coverage or Section 5275(a)(2) right of contribution in accordance with Section 5500.5.  Most of the time, arbitration is not the proper forum to litigate disputes between an Applicant and defendants that involve these entities.  The determination must be made on a case-by-case basis.  Each judge has the discretion to determine if a case stays at the WCAB for determination of who an employer is, or to refer the matter to the presiding judge at the district office having venue to order the matter into arbitration.

Insurance coverage is rarely in issue since a general employer will have their insurance coverage as required by Labor Code Section 3602(d)(1) and the special employer will have its own insurance coverage for its own employees.  This picture gets muddled when a PEO has multiple insurers, its policy does not exist, or the PEO’s or general employer’s insurer goes into insolvency; or if there is an intermediate entity that has an employer service agreement with the PEO or employee leasing company; or if the special employer claims its policy has an exclusionary endorsement for its special employees. In the permutations of these relationships, it becomes obvious that confusion will occur about whether employment, coverage, and liability under a specific insurance policy are in issue and where this dispute should be litigated.

If employment is in issue, you have already learned that employment can be created under the Borello factors or by contract between these entities under the Serrano case. The issue of employment between the injured worker and these entities are under the direct jurisdiction of the WCAB and trial judges. The issue of liability for workers’ compensation benefits under a specific injury or cumulative trauma is also under the jurisdiction of the WCAB and its trial judges.

The issue of whether an insurance policy applies in a given case falls under mandatory arbitration since “insurance coverage” under Labor Code Section 5275(a)(1) can be interpreted to include whether there is liability under a policy.  The best example of this is whether an insurance policy has an exclusionary endorsement that would result in a finding by an arbitrator that a policy excludes coverage for special employees who are paid wages by a PEO, employee leasing company, or intermediate entity, and wages are not paid directly by a special employer. Remember, by contract, special employers are paying for the services of a PEO or employee leasing company.

Therefore, cases involving PEOs, employee leasing agreements, and general-special employer cases should be first heard at the WCAB, and the issue of employment is to determined.  Then the question of insurance coverage becomes an issue before an arbitrator:  as to liability under a specific policy or coverage itself (e.g., if an insurer claims liability is excluded under a specific exclusionary endorsement). 

If the parties have access to a sitting judge at the WCAB who understands these issues, the parties may be better off litigating all issues before the WCAB and save the expense of an arbitrator. 

On the other hand, arbitrating employment, insurance coverage, and liability under an insurance policy may save time.  So counsel needs to determine what is best for the parties and which forum will provide the quickest resolution of employment and insurance policy liability issues.  Keep in mind that while these entities point their fingers at each other, an injured worker is probably not receiving workers’ compensation benefits while employment, insurance coverage, and liability issues are being litigated between a PEO, intermediary human resources-type company, and a special employer.

As stated earlier, in many cases, the special employer should step up and pay benefits if an injury should be otherwise admitted and the issue of exclusionary endorsement, liability of a general employer and/or intermediary companies could occur later in contribution proceedings. Remember, case law since 1949 mandates that general and special employers are jointly and severally liable for workers’ compensation benefits. 

CONCLUSION

The law governing general and special employment can get complicated.  Normally, employment is determined from the Borello factors in determining whether an injured worker was an employee or independent contractor of a hirer at the time of an alleged injury at work.  When multiple layers of employment created by contract is added to the mix, complex litigation occurs, and parties need to be educated about the proper discovery that needs to be completed in order to establish liability for work injuries. 

In many of these cases, the lack of understanding by counsel and their clients results in unnecessary delay of claims, including ones involving serious injuries to innocent workers. Counsel for every party involved in PEO and employee leasing cases have an affirmative duty to conduct proper and quick discovery in order to understand what entity or entities are liable for workers’ compensation benefits.  Everyone has a duty to investigate, including attorneys for injured workers. 

Most judges will place liability first on the special employer when the general employer has intermediary companies involved by so-called service agreements. This usually occurs when a general employer or PEO delegates its duty under Labor Code Section 3602(d)(1) to a human resource management company or other shell company. 

Best practices exist when a general employer or its claims administrator refuses to pay a claim for a special employee who is seriously injured.  The special employer’s insurer should pay the claim and then litigate in arbitration any contractual disputes that may exist for insurance coverage and liability by a general employer and any intermediate companies. Barring that, a special employer should immediately be contacting the general employer, its insurer, and the special employer’s own insurance claims department and the employer’s agent or broker to inform them of a work injury occurring to a special employee.

Applicant’s counsel must obtain payroll information from the injured worker in order to understand and apply Insurance Code section 11663 that establishes liability for workers’ compensation benefits follow payroll.  That way, joinder of appropriate parties and their claims administrators and discovery can occur without any unnecessary delay.

The law of insurance coverage under a workers’ compensation policy and general-special employment situations are challenging and exciting parts of the practice of workers’ compensation law.

© Copyright 2022 Robert G. Rassp. All rights reserved. Reprinted with permission.

[1] S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 50 Cal. Comp. Cases 80.  “Borello Factors” are:  1. Is the worker engaged in a distinct occupation or business?  2. Is the work specialized that the worker performed without supervision? 3. Does the worker exercise a special skill?  4.  Who provided the tools and location for the work?  5.  What is the length of time the worker performed the services?  6. Was the worker paid by time or by the job?  7.  Was the work part of the hirer’s regular business?  8.  Did the parties believe they were creating an employment or independent contractor relationship?

[2] This author wants to acknowledge and thank Don Knudsen, underwriting manager from State Compensation Insurance Fund, who on many occasions was an expert witness for SCIF who appeared before this author when this author was an arbitrator in insurance coverage cases involving SCIF. His knowledge and ability to explain complex insurance issues was invaluable.

[3] Every state has a workers’ compensation rating bureau that sets the proper standards for insurance premiums or self-insured fund.

[4] NCCI is the National Council of Compensation Insurance which developed the uniform Information page for workers’ compensation coverage in all 50 states. There are 14 NCCI monopolistic states where workers’ compensation insurance coverage can only be obtained through one statewide company or agency.

[5] Disclosure:  The arbitrator in the Serrano and Toscano Corona cases is the author of this article.

[6] Select Staffing, as a general employer, had many special employer contracts.  Select Staffing, as a general employer, had two insurance policies—one with ACE American Insurance Company, which listed the special employers with whom Select Staffing had Labor Code Section 3602(d)(1) contracts that did not include RSI Home Products listed as a special employer, and the other with Kemper Insurance Company, which did have RSI Home Products listed as a covered special employer.

Workers’ Compensation Laws: 50-State Survey

Reprinted with permission.

 

Professor Michael C. Duff of Saint Louis University School of Law is in the process of developing a very interesting and useful overview of workers’ compensation laws by state.  His tool identifies the state law and administrative agency in each state, while summarizing the applicable reporting deadline and waiting period.  In addition, each entry describes the disability benefits available in that state.  This is a work in progress.  Professor Duff says, “I am quite enthusiastic about the long-term value of developing this type of open source comparative information.  We will get the best feedback possible with broad dissemination.”  He asks that if you discover an error relative to your state, you report the error and the correct information to him via email:  michael.duff@slu.edu.

Here is the link:  https://sites.google.com/slu.edu/benefits-for-injured-workers.

 

A workplace accident or occupational disease can take a heavy toll on an employee. Medical bills and lost wages from time missed at work can mount quickly. Workers’ compensation programs aim to provide injured employees with the financial assistance that they need, while limiting the liability of employers. The concept behind workers’ compensation is a tradeoff between the employee and the employer. The employee cannot sue their employer (or a coworker) for compensation for their injuries, but they can recover benefits without proving that the employer was at fault. They need only prove that the accident occurred on the job.

In addition to covering medical treatment and potentially vocational rehabilitation, workers’ compensation offers disability benefits to eligible employees. These provide a partial replacement for lost income or earning capacity. Disability benefits are often defined by the extent and duration of the disability. The four standard types are permanent total, temporary total, permanent partial, and temporary partial disability benefits. However, some states define benefits differently. The formula for calculating each type of benefits also varies by state.

After an injury on the job, a worker needs to report the injury to their employer as part of the process of starting a claim. State laws may set a specific deadline for this notice. An employee thus must act promptly if they believe that they have suffered an injury on the job. In general, the deadline for reporting the injury is shorter than the deadline for filing a claim.

Each state imposes a “waiting period” before a worker can receive some or all types of disability benefits. If a disability lasts for a specified period, though, they usually can receive benefits for the waiting period retroactively.

This overview of workers’ compensation laws identifies the state law and administrative agency in each state, while summarizing the applicable reporting deadline and waiting period. In addition, each entry describes the disability benefits available in that state. Workers’ compensation laws can be extremely technical, and not every nuance is captured here. An employee should consider consulting a workers’ compensation lawyer if they have suffered a serious injury and expect to miss significant time from work.

Click on a state below to find out more about workers’ compensation benefits there.

Alabama

For an injury causing a temporary total disability, Alabama workers’ compensation benefits are two-thirds of the average weekly earnings received at the time of the injury, subject to a statutory maximum and minimum. For a temporary partial disability, benefits are two-thirds of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings that they are able to earn in their partially disabled condition. These benefits last no more than 300 weeks.

Benefits for a permanent partial disability are based on the extent of the disability. For certain specified injuries, the compensation is two-thirds of average weekly earnings during the number of weeks in a statutory schedule. For other injuries, benefits are two-thirds of the difference between average weekly earnings at the time of the injury and the average weekly earnings that the worker is able to earn in their partially disabled condition. For a permanent total disability, the employee will receive two-thirds of the average weekly earnings received at the time of the injury, subject to a statutory maximum and minimum.

Alaska

For a permanent total disability, Alaska workers’ compensation law provides that 80 percent of the injured employee’s spendable weekly wages will be paid to the employee during the continuance of the total disability. For a temporary total disability, 80 percent of the injured employee’s spendable weekly wages will be paid to the employee during the continuance of the disability, but not for any period after the date of medical stability.

For a temporary partial disability, the compensation is 80 percent of the difference between the injured employee’s spendable weekly wages before the injury and the wage-earning capacity of the employee after the injury. These benefits may not be paid for more than five years and may not be paid after the date of medical stability. For a partial permanent impairment, the compensation is $177,000 multiplied by the employee’s percentage of permanent impairment of the whole person.

Arizona

For a temporary total disability, Arizona workers’ compensation law provides that an injured employee will receive two-thirds of their average monthly wage during the period of disability. For a permanent total disability, compensation of two-thirds of the average monthly wage will be paid during the life of the injured person.

For a temporary partial disability, an injured employee will receive two-thirds of the difference between the wages earned before the injury and the wages that they are able to earn thereafter. A permanent partial disability caused by certain specified injuries will qualify a worker for compensation of 55 percent of their average monthly wage paid for a period provided by a statutory schedule, in addition to the compensation for temporary total disability. A permanent partial disability caused by other injuries will qualify an employee for compensation equal to 55 percent of the difference between the employee’s average monthly wages before the accident and the amount that represents their reduced monthly earning capacity resulting from the disability.

Arkansas

  • State law: Arkansas Code Section 11-9-101 et seq.
  • Administrative agency: Arkansas Workers’ Compensation Commission
  • Reporting deadline: Generally unspecified; next regular business day when employee requires emergency medical treatment outside normal business hours
  • Waiting period: 7 days; compensation for a disability beyond that period starts with the 9th day of disability (retroactive to 1st day of disability if disability extends for 2 weeks)

In the case of a total disability, Arkansas workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wage during the continuance of the disability. In the case of a temporary partial disability, an employee will receive two-thirds of the difference between their average weekly wage before the accident and their wage-earning capacity after the accident.

If an employee sustains a permanent partial disability based on a scheduled injury, they will receive weekly benefits in the amount of the permanent partial disability rate attributable to the injury for the period of time set out in the statutory schedule. These benefits are awarded in addition to compensation for temporary total and temporary partial benefits. If an employee sustains a permanent partial disability based on another injury, the disability will be apportioned to the body as a whole. This will have a value of 450 weeks. The employee will receive compensation for the proportionate loss of use of the body as a whole resulting from the injury.

California

For a temporary total disability, California workers’ compensation law provides that the disability payment is two-thirds of the worker’s average weekly earnings during the period of the disability, while considering the ability of the injured employee to compete in an open labor market. For a temporary partial disability, the disability payment is two-thirds of the weekly loss in wages during the period of the disability. (The weekly loss in wages is the difference between the average weekly earnings of the injured employee and the weekly amount that they probably will be able to earn during the disability.) This payment will be reduced by the sum of unemployment compensation benefits and extended duration benefits received by the employee during that period.

California provides a statutory schedule for permanent partial disabilities. Also, if a permanent disability is at least 70 percent but less than 100 percent, 1.5 percent of the average weekly earnings for each 1 percent of disability in excess of 60 percent will be paid for the rest of the employee’s life. If the permanent disability is total, an injured employee will receive two-thirds of their average weekly earnings for the rest of their life.

Colorado

For a temporary total disability lasting more than three regular working days, Colorado workers’ compensation law provides that an employee will receive two-thirds of their average weekly wages, up to 91 percent of the state average weekly wage per week. For a temporary partial disability, an employee will receive two-thirds of the difference between their average weekly wage at the time of the injury and their average weekly wage during the continuance of the disability, again up to 91 percent of the state average weekly wage. For a permanent total disability, an employee will receive two-thirds of their average weekly wages for the rest of their life, but not more than the weekly maximum benefits for temporary total disability.

Permanent partial disability benefits are also known as medical impairment benefits in Colorado. These are based on permanent loss of function or impairment to a body part. The amount of permanent partial disability benefits that a claimant may receive is calculated by using the percentage of loss determined by the doctor and a statutory formula.

Connecticut

If an injury for which compensation is provided under the Connecticut Workers’ Compensation Act results in a total incapacity to work, the injured employee will receive weekly compensation equal to 75 percent of their average weekly earnings as of the date of the injury, subject to a maximum weekly benefit rate.

If an injury results in partial incapacity, the injured employee will receive weekly compensation equal to 75 percent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before their injury and the amount that the employee is able to earn after the injury. This compensation will not be more than 100 percent of the average weekly earnings of production and related workers in manufacturing in the state and will last no longer than 520 weeks. A specific schedule applies to certain injuries identified by statute.

Delaware

For injuries resulting in a total disability, the compensation to be paid under Delaware workers’ compensation law is two-thirds of the wages of the injured employee. However, this compensation must not be more than two-thirds of the average weekly wage per week as announced by the Secretary of the Department of Labor, or less than 22 2/9 percent of the average weekly wage per week.

For injuries resulting in a partial disability, with some exceptions, the compensation to be paid is two-thirds of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter. However, this compensation cannot be more than two-thirds of the average weekly wage per week as announced by the Secretary of Labor. This compensation is limited to 300 weeks. A specific provision applies to compensation for certain permanent injuries.

Florida

For a permanent total disability, Florida workers’ compensation law provides that an injured employee is entitled to two-thirds of their average weekly wages. For a temporary total disability, the employee also is entitled to two-thirds of their average weekly wages, but this generally will not exceed 104 weeks. Once the employee reaches the 104-week limit or reaches the date of maximum medical improvement, whichever is earlier, temporary disability benefits will cease, and their permanent impairment will be determined.

Permanent impairment income benefits (similar to permanent partial disability benefits) are based on an impairment rating that uses an impairment schedule. These benefits are paid biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit, subject to some limitations. For a temporary partial disability, meanwhile, compensation is equal to 80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration that the employee is able to earn after the injury, as compared weekly.

Georgia

For a temporary total disability, Georgia workers’ compensation law provides that an employee will receive a weekly benefit equal to two-thirds of their average weekly wage, subject to a minimum and maximum. This benefit is generally payable for no more than 400 weeks after the injury. However, when an injury is catastrophic, the weekly benefit is payable until the employee’s condition improves.

For a temporary partial disability, an employee will receive a weekly benefit equal to two-thirds of the difference between their average weekly wage before the injury and the average weekly wage that they are able to earn thereafter, but not more than $450 per week. These benefits will be paid for no more than 350 weeks after the injury. For a permanent partial disability, which is a disability resulting from the loss or loss of use of body members or the partial loss of use of the employee’s body, the employer will pay weekly income benefits to the employee according to a statutory schedule.

Hawaii

For a permanent total disability, Hawaii workers’ compensation law provides that an employee will receive a weekly benefit equal to two-thirds of their average weekly wages, but not more than the state average weekly wage nor less than a certain minimum. For a temporary total disability, the employee will receive a weekly benefit at the rate of two-thirds of their average weekly wages, subject to the same limitations.

For a permanent partial disability, an employee will receive compensation in an amount determined by multiplying the maximum weekly benefit rate prescribed by statute by the number of weeks specified for the disability in a statutory schedule. (Benefits are also available for non-scheduled injuries, for which more complex rules apply.) For a temporary partial disability, an employee will receive weekly benefits equal to two-thirds of the difference between their average weekly wages before the injury and their weekly earnings thereafter, subject to the schedule for the maximum and minimum weekly benefit rates.

Idaho

According to Idaho workers’ compensation law, an injured worker will receive total disability benefits in an amount equal to 67 percent of their average weekly wage for a period no greater than 52 weeks. After that time, total disability benefits are paid in an amount equal to 67 percent of the currently applicable average weekly state wage. These amounts are subject to a minimum and maximum. Certain injuries are deemed total and permanent unless the employer can prove otherwise by clear and convincing evidence.

For partial disability during the period of recovery, an injured worker will receive an amount equal to 67 percent of their decrease in wage-earning capacity, but this must not exceed the income benefits payable for total disability. Idaho also offers scheduled income benefits for the loss or loss of use of a bodily member. These are paid in addition to income benefits payable during the period of recovery when a permanent disability is not total. A separate rule applies to non-scheduled permanent disabilities that are not total. The wage factor in the formula for calculating benefits for a permanent but not total disability is 55 percent of the average weekly state wage.

Illinois

For a temporary total disability, Illinois workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wage, subject to a minimum and maximum. For a permanent total disability, an injured worker will receive two-thirds of their average weekly wage for life, subject to a minimum and maximum. For a temporary partial disability, an injured worker will receive two-thirds of the difference between the average amount that they would be able to earn in their pre-injury job and the gross amount that they earn in their light-duty job.

Illinois offers four types of permanent partial disability benefits. First, an employee may receive a wage differential award if they get a new job that pays less than their job before the injury. This benefit is two-thirds of the difference between the amount earned in the new job and the amount that the employee would be earning in their previous job, paid for five years or until the employee turns 67 if later. Second, if an employee suffers an injury involving the loss or loss of use of a body part, and this injury appears on the statutory schedule, they will receive benefits as provided by the schedule. Third, an employee who suffers from permanent limitations that are not listed on the statutory schedule can receive benefits based on the loss of the person as a whole. Finally, benefits may be available for serious and permanent disfigurement. The wage factor in the formulas for each of these last three types of benefits is 60 percent of the employee’s average weekly wage.

Indiana

When a worker suffers a temporary total disability or total permanent disability, Indiana workers’ compensation law provides that they will receive weekly compensation equal to two-thirds of their average weekly wages. These benefits will not last for more than 500 weeks. An injured employee with a temporary partial disability will receive weekly compensation equal to two-thirds of the difference between their average weekly wages and the weekly wages at which they are actually employed after the injury. These benefits will not last for more than 300 weeks.

Indiana also provides a statutory schedule for injuries resulting in a permanent partial impairment. In these cases, an employee will receive compensation in an amount determined under the schedule to be paid weekly at a rate of two-thirds of the employee’s average weekly wages during the 52 weeks preceding the week in which the injury occurred. These benefits are paid in addition to temporary total disability benefits, not exceeding 125 weeks. (This statute also provides that an injury resulting in a total permanent disability will qualify a worker for the amount payable for impairment or 500 weeks of compensation, whichever is greater.)

Iowa

When an employee suffers a temporary total disability, or a permanent partial disability for which compensation is payable during a healing period, Iowa workers’ compensation law provides that the weekly benefit amount payable to the employee is upon the basis of 80 percent of their weekly spendable earnings. The maximum weekly benefit amount for these benefits is 200 percent of the statewide average weekly wage. If an employee is entitled to temporary partial benefits, this benefit is two-thirds of the difference between the employee’s weekly earnings at the time of their injury and their actual gross weekly income from employment during the period of temporary partial disability.

For cases of permanent partial disability beyond the healing period, Iowa provides a statutory schedule. Compensation is based on the extent of the disability and on the basis of 80 percent per week of the employee’s average spendable weekly earnings, but not more than a weekly benefit amount equal to 184 percent of the statewide average weekly wage. For a permanent total disability, compensation is on the basis of 80 percent per week of the employee’s average spendable weekly earnings, but not more than a weekly benefit amount equal to 200 percent of the statewide average weekly wage.

Kansas

For a permanent total disability, Kansas workers’ compensation law provides that weekly payments will be made in a sum equal to two-thirds of the average weekly wage of the injured employee, subject to a maximum and a minimum. Payments will continue for the duration of the disability. For a temporary total disability, weekly payments will be made in a sum equal to two-thirds of the average gross weekly wage of the injured employee, again subject to a maximum and a minimum.

For a temporary partial general disability, an injured worker will receive two-thirds of the difference between the average weekly wage that they were earning before the injury and the amount that they are actually earning after the injury in any type of employment. These benefits are available for no more than 415 weeks. Kansas provides a statutory schedule that defines payments for certain permanent partial disabilities. For permanent partial disabilities not covered by the schedule, a separate provision sets out a formula for calculating payments. These also are available for no more than 415 weeks.

Kentucky

For a temporary or permanent total disability, Kentucky workers’ compensation law provides that an injured worker will receive two-thirds of their average weekly wage, subject to a minimum and maximum. For a permanent partial disability, an injured worker will receive benefits equal to two-thirds of their average weekly wage (but not more than 82.5 percent of the state average weekly wage), multiplied by the permanent impairment rating caused by the injury or occupational disease, times the factor set forth in a statutory table. Additional qualifications and limitations apply.

Income benefits provided by this law will end when the employee turns 70, or four years after their injury or last exposure if this is later. Kentucky law does not specifically provide for temporary partial disability benefits.

Louisiana

For an injury resulting in a temporary total disability, Louisiana workers’ compensation law provides that an employee is entitled to receive two-thirds of their wages during the period of their disability. These benefits will cease when the physical condition of the employee has resolved to the point that a reasonably reliable determination of the extent of their disability may be made, and their physical condition has improved to the point that continued, regular treatment is not required. For an injury resulting in a permanent total disability, an employee will receive two-thirds of their wages during the period of their disability.

Louisiana also provides supplemental earnings benefits. These are awarded when an injury results in an inability to earn wages equal to 90 percent or more of the employee’s wages at the time of the injury. Supplemental earnings benefits are calculated as two-thirds of the difference between the average monthly wages at the time of the injury and the average monthly wages that the employee is able to earn in any month thereafter. These benefits will not exceed 520 weeks. In addition, permanent partial disability benefits are available according to a statutory schedule. Certain serious injuries qualify an employee for a separate $50,000 payment.

Maine

While the incapacity resulting from an injury is total, Maine workers’ compensation law provides that an injured employee will receive weekly compensation equal to two-thirds of their gross average weekly wages, earnings, or salary, up to a set maximum. Compensation must be paid for the duration of the incapacity. In certain cases, it is conclusively presumed for 800 weeks from the date of injury that it resulted in permanent total incapacity.

While the incapacity is partial, an employee may receive compensation in an amount equal to two-thirds of the difference due to the injury between the employee’s average gross weekly wages, earnings, or salary before the injury and the average gross weekly wages, earnings, or salary that the employee is able to earn after the injury, up to a set maximum. An employee cannot receive more than 624 weeks of these benefits, or more than 624 total weeks of total and partial disability benefits combined. Maine also provides a statutory schedule for specific loss benefits, involving the actual loss of various body parts.

Maryland

For a temporary partial disability, Maryland workers’ compensation law provides that an injured employee will receive compensation that equals 50 percent of the difference between their average weekly wage and their wage earning capacity in the same or other employment while temporarily partially disabled. This must not exceed 50 percent of the state average weekly wage. For a temporary total disability, an injured worker will receive compensation that equals two-thirds of the average weekly wage of the covered employee, but not less than $50 and not more than the state average weekly wage.

Maryland provides a statutory schedule for permanent partial disability benefits. Compensation for a permanent partial disability depends on whether the employee is awarded benefits for less than 75 weeks, 75 to 249 weeks, or 250 weeks or more. For a permanent total disability, an employee generally will receive compensation that equals two-thirds of their average weekly wage, but this must not exceed the state average weekly wage.

Massachusetts

While an incapacity resulting from an injury is total, Massachusetts workers’ compensation law provides that an injured employee will receive 60 percent of their average weekly wage before the injury, subject to the maximum weekly compensation rate. These benefits are available for a total of 156 weeks. While an incapacity is both permanent and total, an injured employee (following payment of total incapacity or partial incapacity benefits) will receive two-thirds of their average weekly wage before the injury, subject to minimum and maximum rates.

While an incapacity resulting from an injury is partial, an injured employee will receive 60 percent of the difference between their average weekly wage before the injury and the weekly wage that they are capable of earning after the injury, but not more than 75 percent of what they would receive if they were eligible for total incapacity benefits. (Also, an insurer may reduce these benefits to the amount at which the employee’s combined weekly earnings and benefits are equal to two times the average weekly wage in Massachusetts.) These benefits are generally limited to 260 weeks. They may be extended to 520 weeks when an employee has suffered a permanent loss of 75 percent or more of a certain bodily function or sense, developed a permanently life-threatening physical condition, or contracted a permanently disabling occupational disease of a physical nature and cause. Massachusetts also provides a statutory schedule for certain specific injuries.

Michigan

When an incapacity resulting from an injury is total, Michigan workers’ compensation law provides that an injured employee will receive 80 percent of their after-tax average weekly wage, up to a maximum weekly rate. Compensation is paid for the duration of the disability. A conclusive presumption of total and permanent disability will not extend beyond 800 weeks after the date of injury.

When an incapacity resulting from an injury is partial, an injured employee will receive 80 percent of the difference between their after-tax average weekly wage before the injury and their wage earning capacity after the injury, up to a maximum weekly rate. Compensation is paid for the duration of the disability. Michigan also provides a statutory schedule for disabilities involving the loss of various body parts.

Minnesota

For a temporary total disability, Minnesota workers’ compensation law provides that an injured employee will receive two-thirds of their weekly wage at the time of the injury, subject to a maximum and minimum. For a temporary partial disability, an injured employee will receive two-thirds of the difference between their weekly wage at the time of the injury and the wage that they are able to earn in their partially disabled condition, subject to the maximum rate for temporary total compensation.

A permanent partial disability must be rated as a percentage of the whole body. The percentage then must be multiplied by the corresponding amount in a statutory table. Permanent partial disability is not payable while temporary total compensation is being paid. For a permanent total disability, an injured employee will receive two-thirds of their daily wage at the time of the injury, subject to a maximum and minimum.

Mississippi

For a permanent total disability, Mississippi workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wages, subject to a maximum. These benefits will not exceed 450 weeks or an amount greater than 450 weeks multiplied by two-thirds of the average weekly wage for the state. For a temporary total disability, an injured employee will receive two-thirds of their average weekly wage during the continuance of the disability, subject to a maximum. The same 450-week limit applies.

Permanent partial disability benefits are paid after compensation for temporary total disability and are calculated according to a statutory schedule. In cases not involving a scheduled injury, compensation is two-thirds of the difference between the injured employee’s average weekly wages, subject to a maximum, and their wage-earning capacity thereafter, payable during the continuance of the partial disability. These payments are limited to 450 weeks. For a temporary partial disability, an injured employee will receive two-thirds of the difference between their average weekly wages before the injury and their wage-earning capacity after the injury, subject to a maximum. These benefits are payable during the continuance of the disability but must not exceed 450 weeks or an amount greater than 450 weeks multiplied by two-thirds of the average weekly wage for the state.

Missouri

For a temporary total disability, Missouri workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly earnings as of the date of the injury, up to 105 percent of the state average weekly wage. These benefits are limited to 400 weeks. For a temporary partial disability, an injured employee will receive two-thirds of the difference between their average earnings prior to the accident and the amount that the employee will be able to earn during the disability in the exercise of reasonable diligence. These benefits are limited to 100 weeks.

Missouri provides a statutory schedule for permanent partial disability benefits, which are paid in addition to compensation for a temporary total or temporary partial disability. Permanent injuries not on the schedule also may be compensated, but not for a period greater than 400 weeks. Permanent total disability benefits are paid during the continuance of the disability from the date of maximum medical improvement for the lifetime of the employee. An injured employee will receive two-thirds of their average weekly earnings as of the date of the injury, up to 105 percent of the state average weekly wage.

Montana

Montana workers’ compensation law provides that benefits for a temporary total disability are two-thirds of the wages received at the time of the injury, although these benefits may not exceed the state average weekly wage. These benefits must be paid for the duration of the disability. Benefits for a permanent total disability are two-thirds of the wages received at the time of the injury, although the benefits may not exceed the state’s average weekly wage. These benefits must be paid for the duration of the disability and are subject to cost of living adjustments.

If an injured worker has a permanent partial disability and is no longer entitled to temporary total or permanent total disability benefits, they are entitled to a permanent partial disability award if they have an actual wage loss as a result of the injury and have a permanent impairment rating. Montana provides a statutory formula for calculating these benefits. Meanwhile, an insurer’s liability for temporary partial disability is the difference between the injured worker’s average weekly wage received at the time of the injury, subject to a maximum of 40 hours per week, and the actual weekly wages earned during the period that the worker is temporarily partially disabled, not to exceed their temporary total disability benefit rate.

Nebraska

For a total disability, Nebraska workers’ compensation law provides that an injured employee will receive two-thirds of the wages received at the time of the injury, subject to a maximum and minimum. For a partial disability not involving a scheduled injury, an injured employee will receive two-thirds of the difference between the wages received at the time of the injury and the earning power of the employee thereafter, subject to a maximum. This compensation will not extend beyond 300 weeks.

Nebraska provides a statutory schedule for compensation based on certain permanent injuries, such as the loss or loss of use of various body parts. This compensation is paid in addition to the amount paid for a temporary disability, but the temporary disability compensation will cease once the extent of the permanent disability is ascertainable.

Nevada

In the case of a permanent total disability, Nevada workers’ compensation law provides that an injured employee is entitled to receive compensation per month of two-thirds of the average monthly wage. In the case of a temporary total disability, an injured employee is entitled to receive two-thirds of the average monthly wage for the period of temporary total disability. The period of temporary total disability ends when a physician or chiropractor determines that the employee is physically capable of any gainful employment for which they are suited, among other situations.

For a temporary partial disability, an injured employee is entitled to receive the difference between the wage earned after the injury and the compensation that they would be entitled to receive if temporarily totally disabled when the wage is less than the compensation. These benefits are limited to 24 months. For a permanent partial disability, no factors other than the degree of physical impairment of the whole person may be considered. Each 1 percent of impairment of the whole person must be compensated by a monthly payment of 0.6 percent of the claimant’s average monthly wage. Compensation continues on a monthly basis for five years or until the claimant turns 70, whichever is later.

New Hampshire

For a temporary total disability, New Hampshire workers’ compensation law provides that weekly compensation is the full amount of an injured employee’s average weekly wage if this is 30 percent or less of the state’s average weekly wage. Otherwise, weekly compensation is 60 percent of the employee’s average weekly wage or 30 percent of the state’s average weekly wage, whichever is greater. (Maximum limits apply in each case.) For a permanent total disability when the employee’s average weekly wage is 30 percent or less of the state’s average weekly wage, weekly compensation is the full amount of the employee’s weekly compensation rate, subject to a maximum. Otherwise, weekly compensation is 60 percent of the employee’s average weekly wage or 30 percent of the state’s average weekly wage, whichever is greater, subject to a maximum.

For a temporary partial disability, when the employee has not yet reached maximum medical improvement, an injured employee will receive a weekly compensation equal to 60 percent of the difference between the employee’s average weekly wage before the injury and the average weekly wage that they are able to earn thereafter, subject to a maximum. Payments will not continue for longer than 262 weeks. For a permanent partial disability, when the employee has reached maximum medical improvement but has an impairment, the employee will receive a weekly compensation equal to 60 percent of the difference between their average weekly wage before the injury and the average weekly wage that they are able to earn thereafter, subject to a maximum. Payments again are limited to 262 weeks. New Hampshire also provides a statutory schedule for permanent impairment awards based on bodily loss or losses.

New Jersey

For a temporary disability, New Jersey workers’ compensation law provides that an injured employee will receive 70 percent of their weekly wages received at the time of the injury, subject to a maximum and minimum. This compensation will not be paid beyond 400 weeks.

For a permanent total disability, an injured employee will receive 70 percent of the weekly wages received at the time of the injury, subject to the same maximum and minimum. This compensation is paid for 450 weeks, after which payments will cease unless the employee has submitted to rehabilitation and can show that it is impossible for them to obtain wages or earnings equal to those earned at the time of the accident. Further weekly payments then will be made in reduced amounts.

For a permanent partial disability, weekly compensation will be based on 70 percent of the weekly wages received at the time of the injury, subject to a maximum. A statutory schedule provides the method for calculating this compensation.

New Mexico

For a total disability, New Mexico workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wage, subject to a maximum and minimum. For a permanent total disability, the injured worker will receive benefits for the remainder of their life, but otherwise compensation benefits for any combination of disabilities are not payable for more than 700 weeks.

New Mexico provides a statutory schedule for permanent partial disabilities involving the loss or loss of use of certain body parts. For permanent partial disabilities not covered by the schedule, benefits are a percentage of the weekly benefit payable for total disability. When the worker’s percentage of disability is equal to or greater than 80 percent, the maximum period is 700 weeks. Otherwise, the maximum period is 500 weeks. For a temporary partial disability, benefits are two-thirds of the difference between the regular and reduced wage of the employee, up to the maximum compensation rate.

New York

For a permanent total disability, New York workers’ compensation law provides that an injured employee will receive two-thirds of the average weekly wages. Certain injuries are presumed to constitute permanent total disabilities. For a temporary total disability, an injured employee will receive two-thirds of the average weekly wages during the continuance of the disability.

New York provides a statutory schedule for calculating permanent partial disability payments. The wage component of this formula is two-thirds of the average weekly wages. In cases of permanent partial disability not covered by the schedule, compensation is two-thirds of the difference between the injured employee’s average weekly wages and their wage-earning capacity thereafter. For a temporary partial disability resulting in a decrease of earning capacity, an injured employee will receive two-thirds of the difference between their average weekly wages before the accident and their wage earning capacity after the accident.

North Carolina

When an employee qualifies for total disability benefits, North Carolina workers’ compensation law provides that the injured employee will receive a weekly compensation equal to two-thirds of their average weekly wages, subject to a maximum and minimum. Temporary total disability benefits are generally limited to 500 weeks from the date of first disability unless the employee proves that they are entitled to extended compensation. Permanent total disability benefits are available only if an employee suffers from one of certain specified physical or mental limitations. An employee who qualifies for permanent total disability benefits will receive compensation during their lifetime, unless the employer proves otherwise.

When an incapacity resulting from an injury is partial, an injured employee will receive a weekly compensation equal to two-thirds of the difference between their average weekly wages before the injury and the average weekly wages that they are able to earn thereafter, subject to a maximum. An employee will not receive more than 500 weeks of payments. North Carolina also provides a statutory schedule for benefits based on the loss or loss of use of certain body parts.

North Dakota

When an injury causes a temporary total or permanent total disability, North Dakota workers’ compensation law provides that an injured employee will receive a weekly benefit equal to two-thirds of the gross average weekly wage of the employee, subject to a minimum and maximum, during that disability.

When an injury causes a temporary partial disability, the disability benefit is two-thirds of the difference between the injured employee’s average weekly wage and the employee’s wage earning capacity after the injury in the same or another employment, subject to a maximum. Benefits generally will not extend beyond five years. North Dakota also provides for benefits based on a permanent impairment. These awards are determined by multiplying 35 percent of the average weekly wage in the state by a permanent impairment multiplier specified by statute. An injured employee is eligible for an evaluation of permanent impairment when all conditions caused by the compensable injury have reached maximum medical improvement.

Ohio

For a temporary disability, Ohio workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wage so long as the disability is total, subject to a maximum and minimum. However, for the first 12 weeks of total disability, the employee will receive 72 percent of their full weekly wage, subject to a maximum. After 200 weeks of temporary total disability benefits, an injured employee will be scheduled for an evaluation to determine whether the temporary disability has become permanent. For a permanent total disability, an injured employee will receive two-thirds of their average weekly wage, subject to a maximum and minimum, which will continue until their death.

If an employee suffers from a permanent impairment, a hearing officer will determine the percentage of the employee’s permanent disability. The employee will receive two-thirds of their average weekly wage, subject to a maximum, per week for the number of weeks that equals the percentage of 200 weeks that is proportionate to the percentage of their disability. Ohio also provides a statutory schedule for compensation based on the loss or loss of use of certain body parts.

If an employee suffers a wage loss as a result of returning to employment other than their former position due to an injury or occupational disease, they will receive two-thirds of the difference between their average weekly wage and their present earnings, up to the statewide average weekly wage. These payments are limited to 200 weeks.

Oklahoma

Temporary total disability benefits under Oklahoma workers’ compensation law are calculated as 70 percent of an injured employee’s average weekly wage, not exceeding the state average weekly wage, for 156 weeks. If an administrative law judge finds that more time is needed to reach maximum medical improvement, these benefits may continue for up to 52 additional weeks.

Temporary partial disability benefits are calculated as 70 percent of the difference between the injured employee’s average weekly wage before the injury and their weekly wage for performing alternative work after the injury, but only if their weekly wage for performing the alternative work is less than the temporary total disability rate. Actual earnings plus temporary partial disability benefits cannot exceed the temporary total disability rate. These benefits are available for up to 52 weeks.

In cases of permanent partial disability, compensation is 70 percent of the employee’s average weekly wage (up to $360 per week) for a term no longer than a total of 360 weeks for the body as a whole. Oklahoma also provides a statutory schedule for certain types of permanent partial disabilities. For a permanent total disability, compensation is 70 percent of the employee’s average weekly wages, but no more than the state average weekly wage, during the continuance of the disability until the employee reaches the age of maximum Social Security retirement benefits or for 15 years, whichever is longer.

Oregon

For a permanent total disability, Oregon workers’ compensation law provides that an injured employee will receive compensation benefits equal to two-thirds of their wages, subject to a maximum and minimum. When a total disability is temporary, an injured employee will receive two-thirds of their wages, subject to a maximum and minimum, during the period of the total disability.

When a disability is partial and temporary, the payment of temporary total disability benefits will cease, and the injured employee will receive the proportion of the payments provided for temporary total disability that the loss of wages bears to the wage used to calculate temporary total disability under that statute. For a permanent partial disability, an impairment award may be granted if the worker has been released to regular work or has returned to regular work. Impairment benefits are expressed as a percentage of the whole person and are determined by multiplying the impairment value times 100 times the average weekly wage as defined by statute. An award will be issued for impairment and work disability if the worker has not been released to regular work or has not returned to regular work. Work disability benefits are determined by multiplying the impairment value, as modified by various factors, times 150 times the worker’s weekly wage for the job at injury.

Pennsylvania

For a total disability, Pennsylvania workers’ compensation law provides that an injured employee will receive two-thirds of their wages, subject to a maximum. These benefits are payable for the duration of total disability. For a partial disability, except for certain situations discussed below, an injured employee will receive two-thirds of the difference between their wages at the time of the injury and the earning power of the employee thereafter, subject to a maximum. These benefits will not be paid for more than 500 weeks.

Pennsylvania also provides a statutory schedule for disabilities resulting from certain types of permanent injuries, such as the loss or loss of use of various body parts. These are often defined as two-thirds of wages for a specified number of weeks.

Rhode Island

While the incapacity for work resulting from an injury is total, Rhode Island workers’ compensation law provides that an injured employee will receive 62 percent of their average weekly base wages, earnings, or salary, as computed pursuant to statute and subject to a maximum. Certain injuries are presumed to result in a permanent total disability.

While the incapacity for work resulting from an injury is partial, an injured employee will receive 62 percent of the difference between their average weekly base wages, earnings, or salary before the injury, as computed pursuant to statute, and their weekly wages, earnings, salary, or earnings capacity afterward, but not more than the maximum weekly compensation rate for total incapacity. When an employee’s condition has reached maximum medical improvement, and the incapacity for work is partial, the injured employee will receive a weekly compensation equal to 70 percent of the weekly compensation rate described in the previous sentence. Rhode Island provides additional compensation for specific injuries, such as the loss or loss of use of various body parts.

South Carolina

When the incapacity resulting from an injury is total, South Carolina workers’ compensation law provides that an injured employee will receive two-thirds of the average weekly wages during the total disability, subject to a minimum and maximum. These benefits do not last for more than 500 weeks, except in certain cases involving employees who are totally and permanently disabled due to certain catastrophic injuries. These employees may receive benefits for life.

When the incapacity resulting from an injury is partial, an injured employee will receive a weekly compensation equal to two-thirds of the difference between their average weekly wages before the injury and the average weekly wages that they are able to earn thereafter, subject to a maximum. These benefits do not last for more than 340 weeks. South Carolina also provides a statutory schedule for compensation based on certain injuries involving the loss or loss of use of various body parts.

South Dakota

Unlike most states, South Dakota does not require employers to carry workers’ compensation insurance. However, an employer that does not carry insurance may be sued in a personal injury lawsuit by an injured employee.

For a temporary total disability, South Dakota workers’ compensation law provides that an injured employee will receive two-thirds of their earnings, subject to a maximum and minimum. For a permanent total disability, compensation will be paid at the same rate for life with annual increases based on the consumer price index.

When an employee has become partially incapacitated from pursuing their usual and customary line of employment, the employee will receive half of the difference between the average amount that they earned before the accident and the average amount that the employee is earning or is able to earn in a suitable employment or business after the accident, subject to a maximum. South Dakota also provides a statutory schedule of additional compensation for specific injuries, which generally involve the loss or loss of use of various body parts.

Tennessee

For a temporary total disability, Tennessee workers’ compensation law provides that an injured employee will receive two-thirds of the average weekly wages as defined by statute, subject to a maximum and minimum. When a fractional week of temporary total disability is involved, the compensation for each day is one-seventh of the amount due for a full week. For a temporary partial disability, an injured employee will receive two-thirds of the difference between their average weekly wage at the time of the injury and the wage that they are able to earn in their partially disabled condition. These benefits will not extend beyond 450 weeks.

For a permanent partial disability, when the injured employee reaches maximum medical improvement, they will receive two-thirds of their average weekly wages for the period of compensation. This is determined by multiplying the employee’s impairment rating by 450 weeks. For a permanent total disability, an injured employee will receive two-thirds of the wages received at the time of the injury, subject to a maximum and minimum. These benefits generally are paid until the employee is eligible by age for full benefits in the Old Age Insurance Benefit Program under the federal Social Security Act.

Texas

Unlike most states, Texas generally does not require private employers to carry workers’ compensation insurance. If an employer does not carry this coverage, an employee can sue them for an accident on the job as they would sue any other defendant in an ordinary personal injury case.

Benefits under Texas workers’ compensation laws are generally classified as temporary income, impairment income, supplemental income, and lifetime income benefits. An injured employee is entitled to temporary income benefits if the employee has not attained maximum medical improvement. These benefits continue until the employee reaches maximum medical improvement. Temporary income benefits are generally calculated as 70 percent of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s average weekly wage.

An employee with an impairment may be eligible for impairment income benefits after they reach maximum medical improvement. These benefits last until the expiration of a period computed at the rate of three weeks for each percentage point of impairment. Impairment income benefits are calculated as 70 percent of the employee’s average weekly wage.

An employee may be entitled to supplemental income benefits after the expiration of the impairment income benefit period if they have an impairment rating of 15 percent or more, have not returned to work or earn less than 80 percent of their average weekly wage, and meet certain other requirements. Supplemental income benefits are calculated as 80 percent of the amount computed by subtracting the weekly wage that the employee earned during a statutory reporting period from 80 percent of the employee’s average weekly wage as determined by statute.

Finally, lifetime income benefits are paid until the death of the employee for certain injuries provided by statute. Lifetime income benefits are calculated as 75 percent of the employee’s average weekly wage. Benefits being paid are increased at a rate of 3 percent per year.

Utah

For a temporary total disability, Utah workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wages at the time of the injury, subject to a maximum and minimum. These benefits must not exceed 312 weeks at the rate of 100 percent of the state average weekly wage at the time of the injury over a period of 12 years from the date of the injury. For a temporary partial disability, an injured employee will receive compensation equal to two-thirds of the difference between their average weekly wages before the accident and the weekly wages that they are able to earn after the accident, subject to a maximum.

For a permanent partial disability, an injured employee will receive benefits according to a statutory schedule. The wage component of the formula is two-thirds of the employee’s average weekly wages at the time of the injury, subject to a maximum and minimum. These benefits are paid in addition to temporary total and temporary partial disability benefits. For a permanent total disability, an injured employee will receive two-thirds of their average weekly wage at the time of the injury, subject to a maximum and minimum. These benefits last until the death of the employee, or until they are capable of returning to regular, steady work.

Vermont

For a temporary total disability, Vermont workers’ compensation law provides that an injured employee will receive a weekly compensation equal to two-thirds of their average weekly wages, subject to a maximum and minimum. For a temporary partial disability, an injured employee will receive a weekly compensation equal to two-thirds of the difference between their average weekly wage before the injury and the average weekly wage that they are able to earn thereafter.

For a permanent partial impairment, an injured employee will receive two-thirds of the average weekly wage, subject to a maximum and minimum, for a period determined by multiplying the employee’s percentage of impairment of the whole person by 330 weeks. For a permanent total disability, an injured employee will receive two-thirds of their average weekly wages, subject to a maximum and minimum, for the duration of the permanent total disability, but not for less than 330 weeks. Benefits will continue beyond 330 weeks if the injury results in the loss of actual earnings or earning capacity after the injured employee is as far restored as the permanent character of the injuries will permit and results in the employee having no reasonable prospect of finding regular employment.

Virginia

When an incapacity resulting from an injury is total, Virginia workers’ compensation law provides that an injured employee will receive a weekly compensation equal to two-thirds of their average weekly wages, subject to a minimum and maximum. When an incapacity resulting from an injury is partial, an injured employee will receive a weekly compensation equal to two-thirds of the difference between their average weekly wages before the injury and the average weekly wages that they are able to earn thereafter, subject to a maximum.

Virginia provides a statutory schedule for calculating compensation for permanent partial loss and disfigurement. The wage component of the formula is two-thirds of the average weekly wage. Compensation for permanent and total incapacity is awarded for certain catastrophic injuries defined by statute. This will continue for the lifetime of the injured employee.

Washington

For a permanent total disability, Washington workers’ compensation law provides that an injured employee will receive an amount between 60 and 75 percent of their wages, depending on their marital and family status and subject to a maximum and minimum. When a total disability is only temporary, the same schedule of payments applies as long as the total disability continues.

When the present earning power of an employee is only partially restored, an injured employee will receive 80 percent of the actual difference between their present wages and earning power at the time of injury, subject to a maximum and minimum. Washington also provides a statutory schedule for permanent partial disability benefits.

Washington, D.C.

For a permanent total disability, Washington, D.C. workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wages. For a temporary total disability, an injured employee will receive two-thirds of their average weekly wages while the disability lasts.

For a permanent partial disability, an injured employee will receive compensation as provided by a statutory schedule. The wage component of the formula is two-thirds of the employee’s average weekly wages. These benefits are awarded in addition to compensation for temporary total disability or temporary partial disability. For a temporary partial disability, an injured employee will receive two-thirds of their wage loss, which is the difference between their average weekly wage before the disability and their actual wages after the disability. These benefits will not be paid for more than five years.

West Virginia

For a temporary total disability, West Virginia workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly wage earnings at the date of injury, subject to a maximum and minimum. An aggregate award for a single injury will not extend beyond 104 weeks. For a permanent total disability, an injured employee will receive two-thirds of their average weekly wage earnings at the date of injury, subject to a maximum and minimum. These benefits are payable until the claimant reaches the age necessary to receive federal old age retirement benefits under the Social Security Act.

West Virginia provides a statutory schedule for permanent partial disability benefits. The award is computed on the basis of four weeks’ compensation for each percent of disability, with compensation defined as two-thirds of the average weekly wage earnings of the employee at the date of injury, subject to a maximum. Certain injured employees who continue to work at a lesser-paying job than what they previously held may be eligible to receive temporary partial rehabilitation benefits for four years. The benefits are paid at the level necessary to ensure the employee’s receipt of certain percentages of their average weekly wage earnings at the time of injury: 80 percent for the first year, 70 percent for the second year, 60 percent for the third year, and 50 percent for the fourth year.

Wisconsin

When an injury causes a total disability, Wisconsin workers’ compensation law provides that an injured employee will receive two-thirds of their average weekly earnings during the disability. When an injury causes a partial disability, an injured employee will receive the proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to their average weekly wage at the time of the injury. A temporary disability, during which compensation is payable for loss of earnings, includes the period during which an employee could return to a restricted type of work during the healing period.

Wisconsin also provides a statutory schedule for permanent partial disabilities. For cases included in the schedule, an indemnity is paid for the healing period and in addition for the period specified by statute for that injury, at the rate of two-thirds of the average weekly earnings of the employee.

Wyoming

For temporary total disability, Wyoming workers’ compensation law provides that an injured employee will receive 30 percent of the statewide average monthly wage or two-thirds of their actual monthly earnings at the time of injury, whichever is greater, subject to a maximum. For temporary light duty, an injured employee will receive 80 percent of the difference between their light duty wage and their actual monthly earnings at the time of injury. For permanent partial impairment, an award is calculated at the rate of two-thirds of the statewide average monthly wage for the 12-month period preceding the quarterly period in which the benefits are first paid.

For permanent partial and permanent total disability, the award is 92 percent of an injured employee’s actual monthly earnings when these are less than 73 percent of the statewide average monthly wage. The award is two-thirds of the statewide average monthly wage when the employee’s actual monthly earnings are at least 73 percent of the statewide average monthly wage, but less than the statewide average monthly wage. The award is two-thirds of the employee’s actual monthly earnings, capped at the statewide average monthly wage, when the employee’s actual monthly earnings are greater than or equal to the statewide average monthly wage.

 

https://www.justia.com/workers-compensation/workers-compensation-laws-50-state-survey/

 

Workers’ Compensation Coverage for Mental Claims: Is limiting Coverage worth the Cost?

By Kristen McRee, Esquire and J. Keith Roberts, Esquire*

 

The existence of mental illness as a condition can be traced back as far as written records.[1] Early on, it was thought that an individual who suffered from mental illness was either possessed by demons or had angered the gods.[2] For a brief moment in time, mental illness was treated as a psychological disease due to Hippocrates’ efforts.[3] However, the skepticism surrounding the condition returned after the cessation of the Black Plague and continued during the Renaissance period shifting the focus to witches as a proximate cause.[4] The perceived validity of the condition has waxed and waned throughout the years slowly gaining traction. In 1946 President Harry Truman signed the National Mental Health Act calling for additional research of “the mind, brain, and behavior.”[5] Soon thereafter, in 1949, the National Institute of Mental Health (NIMH) was formed.[6] “

In 1980, the American Psychiatric Association (APA) added PTSD [Post Traumatic Stress Disorder] to the third edition of the Diagnostic and Statistical Manual of Mental disorders (DSM-III).”[7] Inherent in legitimizing the condition by announcing its existence in writing, “was the stipulation that the etiological agent was outside the individual (i.e. a traumatic event) rather than an inherent individual weakness (i.e., at traumatic neurosis).”[8] This shifted the focus from a perceived internal inadequacy to an external hardship as the cause of the symptoms. It is this focus on an external hardship that fortifies the causal link between the mental injury and the workplace under many workers’ compensation laws.

Despite this shift, mental illnesses remain a stigmatized category of injuries under many state’s workers’ compensation laws. Concerns regarding coverage for purely mental injuries tend to focus on the difficulties of establishing a causal link between the injury and the employment and the costs associated with treatment.  In addressing these concerns, many states have limited the types and periods of benefits available or provided coverage under supplemental programs or alternate legal theories for claims involving solely mental injury sending potential Claimants on a witch-hunt for limited benefits. This could become a costly endeavor for carriers resulting in expensive tort lawsuits and decreases in productivity.

For example, South Carolina law provides a mechanism of recovery for work-related mental injuries.[9] In order to bring a successful claim for mental injury, a claimant must meet an elevated burden of proof to establish that the conditions causing the stress, mental injury, or mental illness “were extraordinary or unusual in comparison to the normal conditions of the particular employment” and provide medical evidence establishing the causal connection between the mental illness and the employment conditions.[10] The statute defines medical evidence as: expert opinion stated to a reasonable degree of medical certainty, documents, records, or other material offered by a licensed healthcare provider.[11] A claimant who has met the burden of proof, is awarded benefits under the State’s general disability statute as neither the scheduled injury statute nor applicable regulation includes the mind as a compensable body part.[12] These benefits are limited to a maximum of 500 weeks of compensation, which is further limited to a claimant’s average weekly wage for the 52 weeks preceding the accident, and reasonably necessary medical care tending to lessen the period of disability pursuant to a fee schedule.[13] Not only are the monetary damages limited, but the total number of mental-mental claims in 2021 ranged in the tenths of a percent statewide (0.3%).[14] Preliminary data suggests that indemnity payments approximated 0.4% of the total payments made by carriers that year and 0.3% of the total medical treatment costs.[15] Though this data excludes self-insured entities and potentially the first responders they insure, it is unclear whether and how much the costs would increase if the “unusual and extraordinary condition” requirement was removed.

Bodiford v. SC Dept. of Transportation[16] illustrates the point. On October 20th, 2015, South Carolina DOT worker Henry Norris was struck by a dump truck and killed on the job in Darlington County, South Carolina.[17] Mr. Norris’s supervisor, Calvin Bodiford, witnessed the accident.[18]  He filed a claim alleging a “mental-mental” injury and DOT admitted the claim and provided medical care including mental health treatment and medications.[19]  Mr. Bodiford’s physicians eventually placed him at maximum medical improvement and released him to return to work without restriction, with a 9% permanent impairment rating to the mind.[20] Despite his PTSD, he returned to work in another job, albeit one at a lower rate of pay that did not involve supervising employees.[21] In Mr. Bodiford’s case, he was awarded medical treatment in form of counseling and medications as prescribed by his authorized physicians, but no permanent disability compensation. His receipt of medical was limited to treatment tending to lessen the period of his disability pursuant to statute.

In other states that provide coverage for purely mental injuries, similar attempts have been made to address proximate cause but the types of benefits available remain limited.  The definition of “injury” in the Texas Workers’ Compensation Act, for example, includes only “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.”[22] “Physical structure of the body” has been interpreted broadly to include emotional distress, but only where the distress was caused by a particular event.[23] A Texas Claimant successful in proving a compensable mental injury may receive medical benefits and indemnity subject to limitations.[24]

Montana provides some coverage for mental injuries but only if the mental injury results from a compensable physical injury.[25] Ohio,[26] Georgia,[27] Kentucky, and Florida[28] all have similar statutes.[29] The exclusion of mental injuries from coverage under these workers’ compensation schemes opens the door to potentially expensive tort claims. Though the exclusion of these injuries from coverage may insulate workers compensation carriers from liability, it shifts the burden of coverage to other entities, such as an employee’s health insurance. Tort claims are not subject to the same limitations on damages as workers’ compensation claims and, therefore, financial responsibility for these increased costs shifts to an alternate carrier. For example, in Montana, if a claimant is unable to satisfy the statutory requirements for mental injuries, a recovery may still be permitted for mental-mental injuries as the workers’ compensation exclusive remedy provisions may not apply leaving an employer potentially liable in tort.[30]

In states that permit recovery for mental-mental claims, assuming a Claimant satisfies a heightened burden of proof, damages are statutorily limited to compensation and medical treatment. A Virginia Claimant must prove, in addition to the standard requirement that the psychological injury arise out of the employment, “that a triggering event or a sudden shock or fright causing the injury occurred in the course of employment.”[31] Thereafter, receipt of benefits is limited by statutory valuations for compensation rate during a defined period and fee schedule maximums set the limits for medical costs.[32]

California permits recovery for psychiatric injuries if: the disorder causes disability or the need for medical treatment, the disability is diagnosed using the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria, the employment event was the predominant cause of the psychiatric injury, and the employee was employed by the employer for at least 6 months.[33] The statute sets forth the specific legislative intent to establish a heightened burden of proof despite existing limitations on payments for medical treatment and compensation.[34] Oregon compensates mental injury claims but only “if the employment conditions producing the mental disorder are conditions other than [those] generally inherent in every working situation,” the diagnosis is recognized by the medical community, and “it is proven by clear and convincing evidence that the mental disorder arose out of and in the course of employment.”[35] Even if a claimant is able to clear these hurdles, recovery is limited to a statutory cap on weekly benefits and medical benefits are subject to a fee schedule.[36]  A claimant’s entitlement, and an employer’s liability, are further limited because general damages, such as pain and suffering available in a tort suit, are generally not part of the workers’ compensation benefit calculus.

The combination of a heightened burden of proof and limited statutory damages could operate as an inherent limitation on mental injury claim costs. Subjecting first responders to these evidentiary standards; however, may unduly restrict recovery for that high-risk class of claimants. “LEOs, EMT/paramedics, and FFs are exposed to death, serious injury, and violence at significantly higher rates than most civilian professionals.”[37] “Studies show that LEOs develop PTSD at rates ranging from [approximately] 6% to 32%, EMT/paramedics at rates ranging from [approximately] 9% to 22%, and FFs at rates ranging from [approximately] 17% to 32%.”[38]Another study by the National Council on Compensation Insurance (NCCI) suggests that approximately 14% of EMTs experience PTSD, 7.3% of FFs, and 4.7% of LEOs.[39] Overall, first responders experience PTSD at an average of 10%.[40] In comparison, between 6.1 – 12% of adults in the general public will develop PTSD.[41] As of 2021, the National Council on Compensation Insurance (NCCI) estimated that first responder risk-classes account for approximately 1.6% of privately insured costs.[42] Because it is generally stipulated that PTSD arises from an external trigger and first responders as a class are exposed to such external triggers at a significantly higher rate, causation becomes less of a concern though claim costs remain an issue.

During the 2023 legislative session, the South Carolina Senate considered two separate but similar bills removing the requirement that first responders involved in a significant traumatic event prove that their PTSD was caused by extraordinary and unusual working conditions.[43] The two proposed senate bills differ slightly in the language used and include different definitions of “first responder.”[44] However, both serve as a narrowly defined carve-out from South Carolina’s current statute in an attempt to target coverage for an increasingly at-risk population by recognizing the causal connection between the alleged injury and the inherent dangers of the employment. Both proposals retain the medical evidence requirement and a claimant would still be limited to the statutory benefits available. Legislation proposed during prior sessions further curtailed a first-responder’s recovery by requiring that medical benefits received pursuant to the South Carolina Law Enforcement Assistance Program (SCLEAP), South Carolina First Responders Assistance and Support Team (SC FAST), or successor program be exhausted before medical care is received under the state workers’ compensation law.[45] Further confounding the funding issues for these claims, is the fact that first responders in South Carolina may be covered by individual public self-insured workers’ compensation funds. Funding for either the self-insured fund or the SCLEAP program emanates from the same source: state government. It is a matter of financial semantics which specific government fund is utilized to pay claims. The cost remains. None of the proposed bills were enacted.

In contrast, some states have removed some of the compensability hurdles for first responders’ mental injury claims. In Florida, mental injuries are not compensable unless accompanied by a physical trauma.[46] However, a first responder may receive medical benefits for a qualifying mental-mental claim unless the claimant suffers from PTSD.[47] If a first responder is diagnosed with PTSD, it is compensable as an occupational disease and is not subject to certain statutory limitations. [48] Despite the inapplicability of these limitations, “NCCI estimate[d] the fiscal impact of the [legislation] on the state’s workers’ compensation system is around 0.2% or $7 million.”[49] Texas law also provides a carve-out for first responders suffering from work-related PTSD, but claimants must prove both that an event occurred in the course and scope of the employment and that the disorder was caused by the event.[50] A first responder in Connecticut who is diagnosed with PTSD caused by a qualifying event while in the line of duty could be covered under the state’s workers’ compensation laws.[51] Though this bill was ultimately enacted, financial concerns plagued legislative debates on the issue.[52] However, the proof of increased costs remains as elusive as the diagnosis itself.[53] Saying something doesn’t make it so.

Views have come a long way from blaming witches or individual weaknesses for psychological trauma.  The stigmatization around mental trauma is fading, and states are acknowledging such by passing laws allowing workers’ compensation benefits for mental-mental injuries.  Yet the stigma that expanding coverage for mental-mental injuries will result in runaway cost increases remains.  However, the belief that expanding coverage for mental-mental claims will dramatically increase costs is largely unsupported by the empirical evidence.  Florida expanded PTSD coverage for first responders and only saw a 0.2% increase in costs.[54]  Mental-mental claims represent a very small portion of the total claims filed.[55] The Bodiford case in South Carolina (above) demonstrates that there are significant limitations already in place to contain the costs.  He had to prove by medical evidence a causal relation between his condition and the accident he witnessed.  His recovery was limited to the general disability statute and medical treatment that would tend to less the period of disability only.

Mr. Bodiford also had to clear the hurdle that the event he witnessed was “unusual and extraordinary”.  For a construction supervisor, proving that witnessing another human being die because of a collision between a pedestrian and a motor vehicle was “unusual and extraordinary” was an easy hurdle to clear.  However, The Supreme Court of South Carolina has held that whether an event was “unusual or extraordinary” must be evaluated from the perspective of that particular job, not from the perspective of employment generally.[56]  Witnessing death from a motor vehicle accident is a far too common experience for many first responders.  Had Mr. Bodiford been a first responder, he would have had to further struggle to recover the already limited benefits he received by proving the incident witnessed was unusual and extraordinary.  For police officers working patrol, firefighters, EMTs, and other first responders that see motor vehicle accidents and their aftermath on a daily basis, the “unusual and extraordinary” requirement may be a hurdle too high to clear.  First responders are critical to society.  They deserve to be on equal footing with everyone else when it comes to recovering workers’ compensation benefits for mental trauma.

* Kristen McRee is the Director of Administration for the South Carolina Workers’ Compensation Commission and can be reached at kmcree@wcc.sc.gov.  J. Keith Roberts is General Counsel for the S.C. Workers’ Compensation Commission and can be reached at keroberts@wcc.sc.gov

 

[1] Natasha Tracy, The History of Mental Illness, HealthyPlace (October 23, 2019), available at https://www.healthyplace.com/other-info/mental-illness-overview/the-history-of-mental-illness.
[2] Id.
[3] Id.; Beatriz Quintanilla, MD, PhD, Witchcraft or Mental Illness?, Psychiatric Times (June 21, 2010), available at Witchcraft or Mental Illness? (psychiatrictimes.com).
[4] Quintanilla, supra.
[5] Tracy, supra note 1.
[6] Id.
[7] Matthew J. Friedman, MD, PhD, PTSD History and Overview, available at PTSD History and Overview – PTSD: National Center for PTSD (va.gov), last accessed on August 2, 2023.
[8] Id.
[9] S.C. Code Ann. § 42-1-160(B)(2007, as amended). It was not until 1996 that the South Carolina General Assembly passed an Act recognizing stress and mental injuries unaccompanied by a physical injury. 1996 SC Act No. 424, § 13. This statute was updated to its modern form in 2007. 2007 SC Act. No. 111, Pt. I, § 6.
[10] Id.
[11] S.C. Code Ann. § 42-1-160(G)(2007, as amended)
[12] See S.C. Code Ann.. § 42-9-30 (2007, as amended); S.C. Code Ann. Regs. 67-1101 (year).
[13] S.C. Code Ann. § 42-9-10 (2007, as amended); S.C. Code Ann. § 42-1-40 (1996, as amended); S.C. Code Ann. § 42-15-60 (A)(2007, as amended); S.C. Code Ann. § 42-15-90 (2012, as amended);  1976 S.C. Code Ann. Regs. 67-1302 (1997, as amended).
[14] Paul Hendrick, FCAS MAAA, Director and Actuary, Actuarial and Economic Services National Council on Compensation Insurance (NCCI), 2023.
[15] Id. Another study by the National Council on Compensation Insurance (NCCI) suggests that approximately 14% of EMTs experience PTSD, 7.3% of FFs, and 4.7% of LEOs.
[16] Bodiford v. SC Dep’t of Transp., No. 1520276, 2019 WL 12499733 (S.C. Work Comp. Comm., August 15, 2019).
[17] Kelly Matter, SCDOT Worker Struck and Killed by Dump Truck in Darlington Co., WBFM News, Oct. 20, 2015, https://www.wmbfnews.com/story/30307004/scdot-worker-struck-and-killed-by-dump-truck-in-darlington-co/.
[18]Bodiford 2019 WL 12499733 at 2.
[19] Id.
[20] Id.
[21] Id.
[22] Tex. Lab. Code Ann. § 401.011 (26)(2023).
[23] GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 610-611 (1999).
[24] Tex. Lab. Code Ann. § 408.021 (2023); Tex. Lab. Code Ann. § 408.081 (26)(2023); Tex. Lab. Code Ann. § 408.121 (2023); Tex. Lab. Code Ann. § 408.141 (2023); Tex. Lab. Code Ann. § 408.161 (2023); Tex. Lab. Code Ann. § 408.061 (2023); Tex. Lab. Code Ann. § 408.062 (2023).
[25] Mont. Code. Ann.  § 39-71-119(3)(a) (2021, as amended); Yarborough v. Montana Mun. Ins. Authority, 928 P.2d 679 (Mont. 1997)(Firefighter’s PTSD was held not compensable as it arose out of a mental injury secondary to witnessing the explosion and did not arise from the second degree burns he suffered physically which “healed quickly and without incident.”).
[26] Ohio Rev. Code Ann. § 4123.01 (2022, as amended).
[27] Ga. Code Ann. § 34-9-1 (4)(2015). “[I]n order for a psychological injury to be compensable, it must satisfy two conditions precedent: (1) it must arise out of an accident in which a compensable physical injury was sustained; and (2) while the physical injury need not be the precipitating cause of the psychological condition or problems, at a minimum the physical injury must contribute to the continuation of the psychological trauma.” Columbus Fire Department/Columbus Consol. Government v. Ledford, 523 S.E.2d 58 (Ga. Ct. App. 1999); see also Dekalb County of Bd. of Educ. v. Singleton, 668 S.E.2d 767 (Ga. Ct. App. 2008)(holding that Claimant’s anxiety and depression was compensable as the conditions arose out of physical injuries secondary to a compensable work-related asthma attack).
[28] Fla. Stat. Ann. § 440.093(1)-(2)(2023)(mental injuries sustained as a manifestation of a compensable physical injury are compensable if the mental injury is proven by clear and convincing medical evidence by a license psychiatrist and the physical injury was the major contributing cause of the mental condition).
[29] 2022 Ky. Rev. St. Ann. & R. Serv. 342.0011 (Banks- Baldwin); Kentucky State Police v. McCray, 415 S.W.3d 103 (Ky. Ct. App. 2013)(reversing the Board’s award of compensation to a police officer who alleged mental injuries from witnessing a shooting while in the line of duty where the officer sustained no physical injury as a result of the occurrence).
[30] See Stratemeyer v. Lincoln County (Stratemeyer II), 276 Mont. 67, 915 P.2d 175 (Mont. 1996).
[31] See Hess v. Virginia State Police, 806 S.E.2d 413 (Va. Ct. App. 2017) (“[T]o be compensable, a psychological injury as with a physical injury, must arise out of the employment while the triggering event of a sudden shock or fright causing the injury must occur in the course of employment.”).
[32] Va. Code Ann. § 65.2-101 (2019) (generally defines average weekly wage as an employees’ earnings for the 52 weeks immediately preceding the accident and setting the minimum and maximum wage); Va. Code Ann. § 65.2-518 (1997)(maximum period for indemnity payments is 500 weeks); Va. Code Ann. § 65-2-605(B)(2023) (costs of medical treatment limited by fee schedule).
[33] Cal. Lab. Code § 3208.3 (2019).
[34] Cal. Lab. Code § 4600 (2023) (requiring the employer to provide reasonably necessary medical care that is required to provide a cure or relief from the injury and requiring that the treatment be provided pursuant to a utilization schedule); Cal. Lab. Code § 4653 (1974)(setting the compensation rate at 2/3 of the claimant’s average weekly wage); Cal. Lab. Code § 4654 (1974)(setting the compensation rate for temporary partial disability as 2/3 of the weekly loss in wages reduced by any unemployment compensation or extended duration benefits received during the period of disability); Cal. Lab. Code § 4656 (2023) (Maximum aggregate disability payments and periods).
[35] Or. Rev. Stat.  § 656.802 (2023).
[36] Or. Rev. Stat.  § 656.210 (2023)(providing the calculation for temporary total disability benefits); Or. Rev. Stat.  § 656.214 (2008)(providing the calculation for temporary partial disability benefits); Or. Rev. Stat.  § 656.216 (1974)(providing the calculation for permanent partial disability); Or. Rev. Stat.  § 656.206 (2018)(setting no maximum for permanent total disability benefits, but permitting the insurer to reassess permanent and total disability claims every two years to determine whether a claimant has materially improved); Or. Rev. Stat.  § 656.245 (2023, as amended)(requiring insurers to provide medical services for compensable conditions); Or. Rev. Stat.  § 656.248 (2010)(authorizing the Director of the Department of Consumer and Business Services to promulgate rules for developing a medical fee schedule).
[37] Nina F. Lewis-Schroeder, PhD, Kathryn Kieran, NP, Eth L. Murphy Md, PhD, et al., Conceptualization, Assessment, and Treatment of Traumatic Stress in First Responders: A Review of Critical Issues, Harv Rev Psychiatry (2018) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6624844.
[38] Id. The results of these studies were derived from small scale samples and relied upon self-reporting.
[39] Bruce Spidell, Examining PTSD-What’s the Impact on Future Workers’ Compensation Costs, NCCI (June 17, 2021) available at Examining PTSD – What’s the Impact on Future Workers Compensation Costs (ncci.com).
[40] Spidell, supra.
[41] Lewis-Schroder, PhD, et. al., supra note 10.; Spidell, supra note 12. The statistics are not presented for confirmed statistical accuracy, but rather to provide an approximate benchmark for incidence rates.
[42] This statistic was extrapolated from jurisdiction in which NCCI provides ratemaking services.
[43] S. 251, 2023 Leg., 125th Sess. (SC 2023); S. 81, 2023 Leg. 125th Sess. (SC 2023).
[44] Id.
[45] H. 3939, 2021 Leg., 124th Sess. (SC 2021).
[46] See note 45, supra.
[47] Fla. Stat. Ann. § 112.1815(2)(a)(3)(2023).
[48] Fla. Stat. Ann. § 112.1815 (2023).
[49] Daylina Miller, Workers’ Comp to Cover PTSD for First Responders Starting Oct. 1, WUSF Public Media (September 17, 2018), available at https://wusfnews.wusf.usf.edu/health-news-florida/2018-09-17/workers-comp-to-cover-ptsd-for-first-responders-starting-oct-1 (last accessed September 14, 2023).
[50] Tex. Lab. Code Ann. § 504.19(b) (2023, as amended). The 2023 amendments expanded the definition of “first responder.”
[51] Conn. Gen. Stat. Ann. § 31-294k (West 2021) amended by 2023 Conn. Legis. Serv. 23-25 (West).
[52] Louise Esola, Who Pays to Heal Mental Injuries of First Responders?, Business Insurance (December 7, 2016) available at https://www.businessinsurance.com/article/00010101/NEWS08/912310811/Who-pays-to-heal-mental-injuries-of-first-responders? (last accessed September 14, 2023).
[53] Id. (quoting Josh Rhodes, Assistant General Counsel for the South Carolina Association of Counties: “Actuaries can’t tell us; there are too many unknowns. We have no idea about the extent of claims and the extent of awards because of all the unknowns.”).
[54]  Daylina Miller, Workers’ Comp to Cover PTSD for First Responders Starting Oct. 1, WUSF Public Media (September 17, 2018), available at https://wusfnews.wusf.usf.edu/health-news-florida/2018-09-17/workers-comp-to-cover-ptsd-for-first-responders-starting-oct-1 (last accessed September 14, 2023).
[55] “[I]ndemnity payments [for mental-mental claims] approximated 0.4% of the total payments made by carriers that year and 0.3% of the total medical treatment costs.”  Paul Hendrick, FCAS MAAA, Director and Actuary, Actuarial and Economic Services National Council on Compensation Insurance (NCCI), 2023.
[56] Bentley v. Spartanburg Co. 398 S.C. 418, 730 S.E.2d 296 (2012) (“Unusual or extraordinary conditions of employment resulting in a compensable mental injury refer to conditions of the particular job, not to the conditions of employment generally”).

Highlights from the 2023 NAWCJ Judiciary College

By Hon. Jennifer Hopens
Texas Department of Insurance, Division of Workers’ Compensation

and

Hon. Sharon Reeves

Georgia State Board of Workers’ Compensation
Chattanooga, TN

 

As in years past, the 2023 NAWCJ Judiciary College in Orlando did not disappoint. We enjoyed every presentation we attended, but, in the spirit of (judicial) economy, we will focus this paper on selected presentations over the course of the event. What follows is just a sample of the excellent programming and content you can expect from NAWCJ.

Michael Jones, “Courtroom Safety and Active Shooter Training”

Mr. Jones, president of Major Security Consulting & Design, has a long and distinguished background in law enforcement. He led a sobering and thought-provoking discussion about personal safety in light of the frightening phenomenon of active shooters. He stated that there have been over 2,000 incidents in the U.S. so far this year involving active shooters, and the shootings typically last from 5-8 minutes. The stark reality: a shooting can happen anywhere people gather, including the courtroom.

Mr. Jones discussed characteristics of active shooters, including those who hold longstanding grudges and are unable to connect with life, as well as triggering events for the active shooter, such as performance evaluations.

Among the tips shared by Mr. Jones for the audience: don’t ignore the signs, have an emergency plan, be familiar with your surroundings, and develop a survivor’s mindset.

While no one knows how they will react in the moment, Mr. Jones provided practical and useful tools and insight on this subject, which, unfortunately, has become an all-too common reality.

Hon. Ferrell Newman, “The Noble Quest: Writing the Workers’ Compensation Opinion from Draftsmanship to Craftsmanship”

Judge Newman, who serves as a commissioner of the Virginia Workers’ Compensation Commission, spoke on legal writing with frequent doses of self-deprecating humor thrown in for good measure (illustrating the notorious Dunning-Kruger Effect – “ignorance does not recognize itself” – by recounting an amusing personal anecdote about his underwhelmed reaction to seeing the Mona Lisa in person at the Louvre in Paris – don’t worry, he would come around and appreciate it later).

Moving on from art criticism, Judge Newman’s presentation delved into characteristics of good legal writing:

  • fairly informs (includes every fact and every law that’s critical to your decision and why you ruled against a particular party)
  • persuasively communicates
  • avoids unintended messages
  • identifies your audience (the “stranger to the case”)
  • embraces indecision (“when writing, don’t view through the lens of your judgment”)
  • identifies the issue

Judge Newman also laid out some fictions of legal writing for judges:

  • we write to avoid reversal (no, we write to explain)
  • we are the truth finders (it’s not our job!)
  • rectitude is persuasive

Judge Newman extolled the benefits of having your work reviewed by another set of eyes (“hug your proofreader!”), as well the benefits of walking as a way to bolster the creative process.

Want to improve your writing? Judge Newman suggested the following: read good writing; simplify; and recognize what you don’t know (the last being the opposite of the Dunning-Kruger Effect).

Judge Newman’s engaging and informative presentation will not soon be forgotten by the audience.

Dr. Joyce Lacy “silver bullet,” “The Science of Memory: Assessing Witness Credibility”

College attendees next received an eye-opening lesson in neuroscience from Dr. Lacy, who serves as a clinical associate professor at the University of Buffalo. She provided an overview of long-term memory, short-term memory, and sensory memory, along with a discussion of the process of encoding, storage, and retrieval of memories. Errors in memory, we learned, can happen at any time in the process.

As an exercise, Dr. Lacy posed 15 words – many health-related – for the audience to remember and write down later. A number of audience members remembered “doctor” being on the list, but it wasn’t (illustrating the phenomenon of “false memory” and how our minds often “fill in the blanks”).

Key takeaways for the audience: the relationship between confidence and accuracy is complicated, and memories (and levels of confidence) can change. As a practical matter, what does this mean to a judge in assessing the reliability of a witness’s memory of a particular event? Dr. Lacy acknowledged that there is no “silver bullet”, but a good practice is to have a “healthy” level of skepticism – our memories are fallible, but we shouldn’t regard all memories as inaccurate.

The pearl for adjudicators: while an inconsistency in a witness’s memory may call into question the credibility of their account, there may also be reasons for such an inconsistency. As with anything, judges should keep an open mind in evaluating the evidence before them, including witness testimony.

Angela White-Bazile, “Managing Stress in a High-Stress World”

Ms. White-Bazile, who serves as the executive director of the Louisiana Judges and Lawyers Assistance Program, highlighted the importance of self-care in managing the stressful demands of our personal and professional lives and avoiding burnout. As we know, judges are not immune to these pressures.

“Self-care,” she said, “is self-preservation.”

Ms. White-Bazile provided a non-exhaustive list of suggested strategies for alleviating stress, including

  • meditation
  • exercise
  • eating right
  • laugh
  • prioritize rest and getting at least 8 hours of sleep each night
  • make lists of things that make you happy
  • set boundaries with others
  • detach from phones
  • practice mindfulness and gratitude toward others
  • be around optimistic people
  • run away from negativity
  • embrace positivity

To combat burnout, she provided the following suggestions:

  • learn how to breathe
  • focus on authenticity rather than perfection
  • acknowledge that having a bad day is ok, and making mistakes is a part of life
  • don’t be afraid to ask for help

The list goes on! As we all know, there is no one-size-fits-all solution. You have to find a strategy that works best for you.

And, Ms. White-Bazile certainly gave us all plenty of food for thought on this very important subject.

Conclusion

Our hats off to Judge Shannon Bruno Bishop of Louisiana, the NAWCJ Conference Committee Chair, and Judge Timothy W. Conner of Tennessee, the NAWCJ Curriculum Committee Chair, and their committee members for all of their efforts in support of another successful College program.

A Look inside Give Kids the World Service Day, 2023 Interviews with the Volunteers that made it Possible

By Judge Suzette Carlisle Flowers,

Board Member NAWCJ,

Liaison to Spirit to Serve Committee

 

GKTW Service Day 2023 brought people together throughout the workers’ compensation industry with one goal – putting a smile on the faces of critically injured children and their families through adventures at GKTW Village. This year, 561 individuals and ninety-eight companies signed up to serve. What these volunteers accomplished in one morning would have taken the Village two months to achieve from other sources.  We look inside Service Day through the eyes of the volunteers who put smiles on the faces of children’s and their families.

VOLUNTEERS Assemble in the BIG ROOM Early in the Morning!

 

At 6:00 am on Saturday, August 19, 2023, hundreds of volunteers assembled at the Marriott and received their assignments. Between coffee and breakfast rolls, volunteers woke up, found their assignments, and went to work.  They speak to us about their experiences.


 

 

Volunteers for all locations gathered early in the morning, ready to serve.

 

THE MARRIOTT HOTEL VENUE

 

Approximately 100 volunteers served at the Marriott Hotel and colored invitations and cut out masks for future events at the Village. A group of Gallagher Bassett volunteers agreed to be interviewed as they happily colored invitations and cut out masks. Some members of the group were first timers, and others have served for a number of years. Today, we go inside the volunteer’s stories and share their amazing experiences about Service Day 2023 at the Marriott Hotel and GKTW Village on Saturday, August 19, 2023.

 

GALLAGHER BASSETT VOLUNTEERS

 

Mirlo Cruz
  1. What is the name and location of the company where you work: Gallagher Bassett – Miami, FL.
  1. What type of work to you do? Workers’ Comp Adjuster. 
  1. Is 2023 the first time you participated in Give Kids the World (GKTW) Service Day?  Yes, it was. 
  1. How did you hear about GKTW Service Day? I have been with Gallagher Bassett for 6 months. My manager told me that we have been part of this for 10 years now. That it was a cause that we truly enjoy participating. So, I decided to go since I have never done anything like this for any other company where I worked. 
  1. Why did you decide to participate? I think if we have the time to give back one way or another; we should. We get caught up with our work and lives and we forget that we can make a difference in someone’s life, even if it is for a bit. 
  1. What volunteer work did you perform? Marriot Corporate jobs. 
  1. Do you recommend other people volunteer? Yes, I already spoke to my friends about it. Even my husband told his friends. 
  1. Why do you believe it was important for you to volunteer your time and energy to this project? Because I had never been part of something so noble. 
  1. What did you like about Service Day? That you get to put your own touch in the cards we colored. We project our inner child on those cards. 
  1. Any suggestions on ways to improve the experience for volunteers and families served by the project? None, maybe next year when I do the village.

 

Gema Benavides

I am a claims technical assistant for Gallagher Bassett in Branch 141 in Miami-Fl. I answer the phone 7:30 am till 10 am and then I do many other different tasks for the office assisting the Resolution Managers.

2023 was my very lucky year of attending this great service day for the first time. Some of my coworkers have participated before. I always wanted to be part of this beautiful work. This year I volunteered with the manual work, coloring the invitations and cutting the mask for the kids. I do recommend other people participate, Oh Yes! Next year I will love to bring my 40-year-old daughter and grandkids because they love children, and they will enjoy doing this a lot.

It seems like just a little bit. But I do understand that each one of us are giving as much as possible to make this happen for the children.

I love this about Service Day. First of all, knowing that all of this work will be touching each one of these children. Also getting to know people within the industry also involved in this beautiful act of love.  My suggestion is, that you never stop! Keep us dreaming about the next year coming again, to be there and continue helping.

 

Lourdes T. Aguilar
  1. What is the name and location of the company where you work: Gallagher Bassett Services, 5201 Blue Lagoon Dr. Suite 160, Miami, FL 33126.
  1. What type of work to you do: Assistant Branch Manager.
  1. Is 2023 the first time you participated in Give Kids the World (GKTW) Service Day?  This was my second time, 8/19/2023, was the first time.
  1. How did you hear about GKTW Service Day? A formal invitation through my office.
  1. Why did you decide to participate? It is an amazing event that does so much to deliver Happiness to very sick children and I was honored to participate. 
  1. What volunteer work did you perform? I worked on invitations, masks and crowns for the Children. 
  1. Do you recommend other people volunteer? Yes absolutely. 
  1. Why do you believe it was important for you to volunteer your time and energy to this project? I am being part of something amazing for children who are very sick, I help my employer (the best) be present in something great that helps the community. 
  1. What did you like about Service Day? Being part of a high-energy group that participated in this program with enthusiasm and a lot of heart.
  1. Any suggestions on ways to improve the experience for volunteers and families served by the project? You are very organized, and I thank you for doing such an amazing job for such a good cause!

 

Vilma Palma-Blackmon
  1. What is the name and location of the company where you work: Gallagher Bassett Services, Chicago, IL.
  1. What type of work to you do? Senior Vice President, Claims Operation – I lead GB’s 13 WC Offices in the Southeast and provide oversight to +400 claims professionals. 
  1. Is 2023 the first time you participated in Give Kids the World (GKTW) Service Day?  No.
  1. How did you hear about GKTW Service Day? I’ve been attending the WCI Conference for 35 years now. I heard about the GKTW Conference from Jim McConnaughhay in 2013, when participants totaled was less than 50. He asked if GB would be willing to help and I was in a position to say yes, on behalf of the organization – GB has been a sponsor for 10 years now. 
  1. Why did you decide to participate? As soon as I learned heard about the organization, their mission and work.
  1. What volunteer work did you perform? Over the years, I’ve had the privilege of serving breakfast to the children and their family, driven the GKTW “train” that provides transportation for the children and their families from their Villas to different locations, i.e., pools, horseback experience, etc. on the 84-acre Village.
  1. Do you recommend other people volunteer? Absolutely – it’s a wonderful opportunity to give back.
  1. Why do you believe it was important for you to volunteer your time and energy to this project?  Absolutely, not only is it an opportunity to give back, but there are also so many stories of children having miraculous recoveries from very serious illnesses. If you take the time to ask people about GKTW, you’ll often hear, yes – my family, my friend, an acquaintance had a critically ill child, they visited GKTW and cherish their time there.
  1. What did you like about Service Day? The WCI Service Day allows you to connect with industry friends and acquaintances, for a common purpose and share those experiences. It’s rewarding to give back and it’s equally refreshing to connect with those you know and make new acquaintances.
  1. Any suggestions on ways to improve the experience for volunteers and families served by the project? The number of WCI GKTW Volunteers has grown from well under 50 to over 1000 at one point. Instead of having all of the volunteer work occur on one day, I would suggest WCI and GKTW partner to engage the WC community to have year-round events. During the WCI Conference, one of those events could be held and at the same time, have those interested in giving back year-long, sing up for specific months and tasks.

 

Naomi K. Amanzio
  1. What is the name and location of the company where you work: Gallagher Bassett Services.
  1. What type of work do you do: Claims Manager
  1. Is this the first time you participated in Give Kids the World (GKTW) Service Day? Yes.
  1. How did you hear about GKTW Service Day? Gallagher Bassett.
  1. Why did you decide to participate? 2023 is the 10-year anniversary of Service Day.
  1. What volunteer work did you perform? Coloring, cutting out invitations, and masks for the children.
  1. Do you recommend other people volunteer? Yes.
  1. Why do you believe it was important for you to volunteer your time and energy to this project? Absolutely.
  1. What did you like about Service Day? The comradery, and selflessness in giving my time, and energy to put a smile on the family and children’s faces who are staying at the villa.
  1. Any suggestions on ways to improve the experience for volunteers and families served by the project? Pick up group shirts the night before.

 

Roberto A. Camacho Martinez
  1. What is the name and location of the company where you work: Gallagher Bassett/Tampa.
  1. What type of work do you do: Claims adjuster.
  1. Is this the first time you participated in Give Kids the World (GKTW) Service Day? Yes, it was my first time.
  1. How did you hear about GKTW Service Day? I heard about it through my job.
  1. Why did you decide to participate? Well, I wanted to volunteer to give something back to those who are less fortunate in health and bring a smile to their faces.
  1. What volunteer work did you perform? I participated in the painting and cutting work in the hotel.  Since it was my first time, enrolled with my coworkers in this, not knowing that I could have gone to town and actually seen the children.
  1. Do you recommend other people volunteer? Yes, I do, it is a good way to give back and spend time doing a productive activity.
  1. Why do you believe it was important for you to volunteer your time and energy to this project? I was not going to be doing anything that weekend and I would rather volunteer and do something for others and help make a difference in someone else’s life.
  1. What did you like about Service Day? I enjoyed meeting other people and interacting with my coworkers.
  1. Any suggestions on ways to improve the experience for volunteers and families served by the project? No, I think that what GKTW is doing is excellent.

 

 

 

 

Patty Lamastus, a Service Day participant since the beginning, 2013.
Kwen Coffee, Owner

 

 

 

 

 

Everyone worked hard at all ages, making invitations and cutting out masks!

 

 

 

 

The Gallagher Bassett crew, with first timers.

 

 

 

 

 

Elise Boyles (R) and Kate Barron (L), our GKTW leaders!

 

Elise Boyles
  1. Please state your name: Elise Boyles
  1. What is the name and location of the company where you work: Give Kids The World Village – located in Kissimmee, FL.
  1. What type of work to you do: I am the Director of Development, leading our fundraising events for GKTW.
  1. Is 2023 the first time you participated in Give Kids the World (GKTW) Service Day? It is indeed but Give Kids The World has been the organizer of the Service Day for years!
  1. How did you hear about GKTW Service Day? WCI has been an incredible partner of GKTW for years, and we are honored to be the location and beneficiary of this wonderful day.

 

GIVE KIDS THE WORLD VILLAGE

Volunteers made their way to the Village and performed a number of tasks, including power washing fences, walkways, and driveways, serving breakfast to families, painting the outside wall, planting new plants, operating rides, and assisting with many other activities. Two volunteers at the Village share their stories below.

 

 Deidra Byrd, Attorney at Law, North Carolina

  1. What is the name and location of the company where you work: McAngus Goudelock & Courie, Greenville, South Carolina.
  1. What type of work to you do: Attorney with a practice focused on workers compensation insurance
  1. Is 2023 the first time you participated in Give Kids the World (GKTW) Service Day? Yes.
  1. How did you hear about GKTW Service Day? My firm participates in this project each year.
  1. Why did you decide to participate? I was asked to attend and ultimately agreed after I reviewed information about the organization and the service day.
  1. What volunteer work did you perform? I volunteered at the Castle of Miracles. We were able to meet with families coming to get an initial star placed in the castle and families who wanted to see their star on the wall. We also got to entertain families while they waited their turn to “experience the magic.”
  1. Do you recommend other people volunteer? ABSOLUTELY!
  1. Why do you believe it was important for you to volunteer your time and energy to this project? This service day project offered me the opportunity to ease the burden of families who have been dealing with some of life’s toughest moments. It meant a lot to me to see them smile, even for just a little while. Their courage and tenacity inspired me.
  1. What did you like about Service Day? I loved learning about GKTW and seeing so many wonderful people dedicating time to such a wonderful cause.
  1. Any suggestions on ways to improve the experience for volunteers and families served by the project? Everything was perfect! I cannot wait to volunteer next year!

 

Tod Stupski, Leon County School Board, Tallassee, Florida

This is not Tod’s first-year volunteering. He heard about the project by word of mouth.

He participates because it is a great way to start the conference. He has performed different activities. This year he washed the trams. He recommends the project to other people because once you learn of the history of how this started, how could you not participate? He believes the program is very well organized.

Volunteers at all locations are real heroes.  We hope to see you next year at Service Day!

 

WHAT IS NEXT?

 

On November 18, 2023, volunteers are gearing up for the 2023 Decorate-A Villa Day at GKTW Village. Supporting sponsors and volunteers are needed. For more information contact: donna.531@comcast.net or mcliver768@hotmail.com.

PAST PRESIDENTS OF NAWCJ SERIES – Part 2- Where are They Now?

By:  Hon. Suzette Carlisle, Ph.D.
Administrative Law Judge
Missouri Division of Workers’ Compensation

 

We continue our series on past presidents of the NAWCJ. This month we sit down with The Honorable Michael Alvey and Jennifer Hopens and find out how they spend their time since they left the presidency.

  1. Please state your full name and title. Michael W. Alvey, Chairman, Kentucky Workers’ Compensation Board.
  1. What bench do you serve on and what are your responsibilities? I serve as the Chairman of the Kentucky Workers’ Compensation Board, which is the first level of appeal of workers’ compensation decisions rendered by our administrative law judges.
  1. Please state a brief history of your career, i.e., positions and dates. I was engaged in the private practice of law from April 19, 1988, until January 4, 2010. My primary area of practice was workers’ compensation, primarily for the defense, but I handled some claims for injured workers if there was no conflict. I also defended federal black lung claims and dealt with some corporate and probate matters. On January 5, 2010, I began serving as Chairman of the Board, and I have held that job since.
  1. How did you become acquainted with NAWCJ? Dwight Lovan, our prior Commissioner, sent me and four of our ALJ’s to the Judicial College in August 2010. Commissioner Lovan had learned of the organization through one of his various national contacts.
  1. In addition to being a past president, what other leadership roles have you held in the organization, and when? I began serving on the NAWCJ Board of Directors in January 2011. I served as President-elect from January 2011 to January 2013. I served as President from January 2015 until August 2016. I continued to serve on the Board of Directors until May 2018 when I began serving as Treasurer.
  1. What is your current relationship with the organization? I serve as the Treasurer.
  1. List an achievement, event, or person you believe has made a significant contribution to the organization. There are many folks who are deserving of recognition. John Lazzara and David Langham had the foresight to organize and shepherd the NAWCJ. Kathy Shelton from RMI is the engineer who drives the train and ensures the viability and success of the program. I must acknowledge the support from WCI who has enabled us to provide excellent programming at little cost. I think we as an organization have done well in increasing our funding through good stewardship which began under Bob Cohen’s watchful eye. I also believe the organization has benefitted by providing continued excellent programming, and the development of other initiatives such as the new judges “boot camp”, the lunch and learn programs, and the initiation of the NAWCJ Hall of Fame.
  1. Do you believe the organization remains relevant today? Absolutely.
  1. If so, in what way? We are the only organization that provides programming specifically for workers’ compensation adjudicators. We have also created a national network of adjudicators that provides continued support for our members.
  1. How can members get more involved with the organization? By contacting any officer or NAWCJ board member. Then being prepared to roll up their sleeves and dig in.
  1. Can the Board do more to reach members and expand membership? If so, what do you suggest? We have done a pretty good job of maintaining contact with administrators nationwide through involvement of our member in programs such as SAWCA and the IAIABC. We need to continue to be involved with those programs and nurture our relationships.
  1. Is there anything you would like to add about the organization, yourself, etc.? I cannot say enough good things about the NAWCJ. Again, being involved enhances camaraderie and reinforcement for our chosen field.

The Honorable Michael W. Alvey, Chairman, Kentucky Workers’ Compensation Board

 

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  1. Please state your full name and title. Jennifer Hopens, Deputy Commissioner for the Appeals Panel, Texas Department of Insurance Division of Workers’ Compensation (DWC)
  2. What bench do you serve on and what are your responsibilities? I oversee the Appeals Panel program area for DWC in Austin. In that capacity, I supervise six appeals judges. We review appeals of decisions of administrative law judges (ALJs) assigned to the DWC Hearings program area. 
  1. Please state a brief history of your career, i.e., positions and dates.  From 2002 through 2007, I was a hearing officer for the Texas Workforce Commission, conducting hearings primarily in disputes over unemployment benefits. In 2007, I joined DWC as a hearing officer (now ALJ). In that position, I traveled around the state hearing workers’ compensation disputes, which was a wonderful and enriching experience. In 2016, I became a regional director for Hearings, and I supervised benefit review officers and hearing officers for the northern and western regions of the state. In 2017, I joined the Appeals Panel, where I remain today. 
  1. How did you become acquainted with NAWCJ? I attended the very first Judiciary College in 2009, and I’ve been hooked ever since! 
  1. In addition to being a past president, what other leadership roles have you held in the organization, and when?  I served on the NAWCJ Board of Directors starting in 2010. I eventually became an officer, serving two-year terms as Secretary and President-Elect. From 2016 to 2018, I was President of the organization, one of the greatest honors of my life. I have been on the Board of Directors since my term as Immediate Past-President of NAWCJ ended in 2019. 
  1. What is your current relationship with the organization?  I currently serve on the Board of Directors and different committees (e.g., conference and membership & recruitment). I’m always happy to help in any way I can! 
  1. List an achievement, event, or person you believe has made a significant contribution to the organization. There are really too many great people to name! If you put me on the spot in terms of a person who has done a lot for NAWCJ, I’ll be happy to sing the praises of John Lazzara, retired Florida judge and NAWCJ’s George Washington (our first president), who did so much in the early years to build the organization into a nationally recognized leader in judicial education (and he still helps us out!). The New Judges’ Boot Camp, which took place in 2018, 2021, and 2023, and the periodic virtual Lunch & Learn programs have also been great developments in the life of the organization and have allowed us to branch out and reach even more adjudicators in this unique and endlessly fascinating area of the law. 
  1. Do you believe the organization remains relevant today? If so, in what way?  Absolutely! NAWCJ’s mission is to provide opportunities for judicial education for members of the workers’ compensation judiciary at the trial or appellate level to enhance justice. I look forward to the Judiciary College every year, with its mix of compelling topics and presenters, along with exposure to different ideas and perspectives. No matter your experience level on the bench, there is always more to learn as a judge, whether it be ways to sharpen your writing and decision-making skills or learning strategies for managing stress. Education goes hand in hand with personal and professional growth and is critical to the continued vitality of the judiciary. Our laws may be substantively different in our various jurisdictions, but, at the end of the day, we are united in a firm and unwavering commitment to do the best job possible for the public we serve. 
  1. How can members get more involved with the organization?  Volunteering for committee service is a great way to begin your involvement with the organization. There are a number of them, including conference, curriculum, membership & recruitment, newsletter, and website. You can also submit an article for publication in the Lex & Verum, NAWCJ’s quarterly newsletter. Feel free to reach out to me or any other NAWCJ board members or officers for more information. 
  1. Can the Board do more to reach members and expand membership? If so, what do you suggest?  Yes. On that note, the aim of the relatively new NAWCJ membership & recruitment committee is continued outreach to jurisdictions around the country to grow our membership ranks and to encourage more widespread adjudicator participation and attendance at NAWCJ events. Under the leadership of our committee chair, Judge Sharon Reeves of Georgia, I am confident we will see excellent results as time goes by. 
  1. Is there anything you would like to add about the organization, yourself, etc.?  It’s hard for me to believe that it has been 14 years since I ventured to Orlando for my very first Judiciary College. I’m just so grateful for my time with NAWCJ and the many wonderful souls I’ve met and had the pleasure of working with over the years through the organization.  Our work is far from done. Onward and upward!

The Honorable Jennifer Hopens Commissioner for the Appeals Panel
Texas Department of Insurance Division of Workers’ Compensation

 

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NAWCJ Officers and Board members present at the 2023 Judicial College in Orlando, Florida immediately following the annual business meeting.

 

 

Front row, left to right – Judges Jennifer Hopens (Texas), Sharon Reeves (Georgia), Sheral Kellar (Louisiana), Pamela Johnson (Tennessee), Shannon Bruno Bishop (Louisiana), and Suzette Carlisle Flowers (Missouri).

Back row, left to right – Judges Wesley Marshall (Virginia), Michael Alvey (Kentucky), Steven Minicucci (Rhode Island), Kenneth Switzer (Tennessee), and Josh Baker (Tennessee)

 

AMA GUIDES – PUBLIC COMMENT PERIOD IS OCT. 2 – OCT. 27, 2023

Notice: Public Comment Period Opportunity #1 for AMA Guides 2024 Changes– Musculoskeletal Updates

A proposal to update the musculoskeletal system chapters (Upper Extremity, Lower Extremity, Spine) of the AMA Guides® is being considered by the AMA Guides Editorial Panel for adoption in 2024. This is the first of three comment periods where the public will have the opportunity to learn and opine about the anticipated changes.  The proposal will build upon the update to the sixth edition changes issued in 2023.

Interested parties and organizations who utilize the AMA Guides are invited to participate in the process to comment on the proposed changes to the medicine and impairment ratings. The AMA Guides Editorial Panel will consider all available information and comments prior to adopting these changes as part of AMA Guides Sixth 2024.

The public comment period is Oct 2. – Oct. 27, 2023. The deadline to request a copy of the proposal is Friday, October 20, 2023.  

For more information on how to participate and to begin the request process, please visit https://ama-guides.ama-assn.org/books/pages/public_comment   

We urge you and/or your organization to submit comments to inform the Editorial Panel’s decision making. Thank you and we look forward to your participation in this process.

Please share this notice with interested colleagues. 

The AMA Guides Editorial Panel is comprised of knowledgeable physicians, allied health professionals and regulatory and legal advisors to deliver timely enhancements to the AMA Guides reflecting current evidence-based medical practice. 

 

Contact: guidesproposals@z.ama-assn.org with any questions

OCTOBER 2023 MEMBER NEWS

  • TEXAS

    Hsin-Wei Luang has joined the Texas Department of Insurance, Division of Workers’ Compensation (DWC) as an administrative law judge (ALJ) in the DWC’s Austin Field Office. She graduated from the University of Illinois Urbana-Champaign with an aerospace engineering degree. She then went to St. Mary’s Law School, where she originally intended to work for the family business after graduation. Instead, she worked for a couple of law firms and then went in-house, working mostly on intellectual property, commercial contracts, and patent litigation and licensing matters. Most recently, she ran her own freelance writing business as well as her own small business advice website. That she is now an ALJ for DWC is proof that life indeed is full of unexpected twists and turns.