Watch These 4 Workers’ Compensation Litigation Trends in 2022: Risk and Insurance


From COVID-19 compensation disputes to marijuana reimbursement, here are four litigation trends that are shaping workers’ compensation.

Whether it’s the question of whether COVID-19 is reimbursable or the evolution of medical marijuana compensation, the year has been a busy one for workers’ compensation decisions, at both state and federal level.

Courts continue to make decisions on other more common issues, for example when workers’ compensation is also an exclusive remedy.

Last month, the National Compensation Insurance Council (NCCI) released its November 2021 trial update, highlighting a number of key decisions and litigation trends affecting the industry. Here are four of the main trends in the report.

1) Cases related to COVID-19

The NCCI report highlighted four cases where either COVID-19 compensation or workers’ compensation as an exclusive remedy is being tested in court.

In the first case, See’s Candies, Inc. et al. vs. Los Angeles County Superior Court, the California Second District Court of Appeal will decide whether the workers ‘exclusive remedy would prevent legal action by a See’s Candies employee who alleges candy makers’ failure to implement sufficient safety protocols. ’caused her to contract the virus, resulting in the eventual death of her husband from COVID-19.

A similar ruling was issued in August in the case Ingino-Cacchioli v. Infinity Consulting Soils. In that case, the Delaware Superior Court ruled that a surviving spouse of an employee who contracted COVID-19 while working must file a workers’ compensation claim before bringing a tort action against the employer.

The court has postponed the decision on this case until the state Workers’ Compensation Board determines whether the employee contracted COVID-19 at work.

The other two cases highlighted by the NCCI examine whether COVID-19 is compensable or not.

In West vs. Nichols Center, The Mississippi Workers ‘Compensation Commission determined that a nursing home could deny workers’ benefits to a nurse who claimed to have contracted the virus at work.

The committee noted that the nurse had not presented any medical records or other evidence that her positive diagnosis of COVID-19 was the result of workplace exposure.

Talavera vs. Bob’s Super Saver, Inc. examines a more difficult problem. In this case, an injured worker sued workers for damages after contracting the virus during a physiotherapy appointment for a previous injury.

The Kansas Workers’ Compensation Appeal Board ruled that in this case, the treatments were compensable because the exposure during the PT was analogous to a new injury resulting from medical malpractice, which would be covered.

2) Exclusive remedies

The NCCI noted that employers “remain interested in cases involving challenges to constitutionality and the scope of the exclusive remedy”.

As such, the organization included five recent cases that tested the scope of the provision in its roundup. The cases they highlighted occurred in Pennsylvania, South Carolina, Virginia, Wisconsin and Idaho.

The Pennsylvania, South Carolina and Idaho cases revealed that the exclusive remedy provision did not apply to different employers, but for different reasons.

In the Pennsylvania case, the state Superior Court ruled in favor of the employee in Franczyk v. Home Depot, Inc. In that case, an employee filed a negligence lawsuit against her employer after being bitten by a dog brought into the store by a customer.

The court ruled that Home Depot was responsible because the employee’s supervisors did not prevent the customer from bringing the dog into the store and they did not obtain contact information that would allow the injured worker to seek redress.

Additionally, The Home Depot is not protected by the exclusive remedy provision of the state’s workers’ compensation law, as it was responsible for the employee’s inability to contact the offender.

The South Carolina and Idaho cases concerned the eligibility of contract workers for workers’ compensation benefits.

In South Carolina, the state Supreme Court ruled that the exclusive worker remedy did not grant a manufacturer immunity from wrongful death lawsuit after a contracted maintenance worker died while that he was making repairs.

The court concluded that in this case the manufacturer was not the worker’s statutory employer and, therefore, was not protected by the provision.

In Idaho Kelly c. TRC Manufacturing, LLC the state Supreme Court clarified that companies using a third-party delivery driver are not statutory employers and therefore are not entitled to worker benefits.

The move came after a delivery driver was injured while delivering goods from a manufacturer. The driver sued TRC Fabrication, the company that had purchased the goods. The company, in turn, argued that it could not be sued in tort court because of the workers’ exclusive remedy.

Courts in Virginia and Wisconsin have ruled that the exclusive remedy provisions protect employers from further lawsuits.

3) Is marijuana refundable? The courts will decide

As states continue to legalize medical and recreational marijuana, courts often decide whether or not legalization amounts to a reimbursement under workers’ compensation. Payers are often reluctant to cover drugs in workers’ compensation because drugs remain illegal at the federal level.

In Arkansas, Minnesota and Florida, several courts have ruled that workers’ compensation insurers are not required to reimburse an injured worker for medical marijuana, although the drug is legal in those states for medical purposes. Courts of other states, like New Jersey, found that the drugs are compensable, yet.

Beyond whether the drug is refundable, the courts are looking at other employment-related marijuana issues.

In Palmiter v. Commonwealth Health Systems, Inc., for example, the Pennsylvania Superior Court ruled that the state’s Medical Marijuana Act protects an employee’s rights to sue their employer after being fired for using cannabis to treat chronic pain, migraines, and pain. tired.

4) State v Federal Court on reimbursement for air ambulances

A federal court can overturn a decision by the Texas Supreme Court regarding whether air ambulance bills should be paid in full by workers’ insurers.

In the past, air ambulance companies have argued that insurance companies have to pay their billed fees because the ADA takes precedence over state worker pricing guidelines.

In 2020, the state’s supreme court won a victory for workers’ compensation payers when they ruled that the ADA does not prejudge state laws in Texas Mutual Insurance Co. v PHI Air Medical, LLC.

A 2021 Federal Court of Appeal ruling for the Fifth Circuit ruling in Air Evac Ems, Inc. v. Sullivan found that the ADA takes precedence over the price regulation of the Texas Workers Compensation Act. The court argued that while the state can regulate the prices insurers must pay to medical service providers, it cannot regulate the price or service of an air carrier when their restrictions conflict with provisions. of the ADA. &

Courtney DuChene is Associate Editor at Risk & Insurance. She can be reached at [email protected]

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