7-1-2020; Black Lives Matter and "Floyd's Law" from Gene Keefe; Bradley Smith, J.D. on LGBTQ Rights and What It Means to Your Company and more

Synopsis: Black Lives Matter

Editor’s comment: I/We at KCB&A understand and agree with this concept. We join with lots of others across our country and the world to fight systemic racism. I want to confirm for my readers racism can’t be ignored but it isn’t a science and is one of the dopiest and most pointless things the human race has ever engaged in. I recoil to be asked my “race” in applications and anywhere. I assure all of you the goofy term “Caucasian” has nothing to do with the even goofier term “white.” If you want that analysis, send a reply.

One thought I have I call “Floyd’s Law.” I feel Federal, State and local governments should

• Note Police officers almost always work in groups;

• The groups should all be responsible and responsive if one of their group initiates and/or uses deadly force at any time;

• Federal, State and local governments should enact a rule/law that a police officer cannot be indifferent to the inappropriate use of deadly force in their presence—they have to take steps to warn other reporting officers and block them to the best of their ability from the inappropriate use of deadly force or face termination and prosecution themselves.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Title VII’s Plain Meaning of “Sex” Encompasses Sexual Orientation and Transgender Discrimination. Time to revisit those handbooks in some States! Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Bostock v. Clay County, Georgia, the U.S. Supreme Court (SCOTUS), issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on employees’ sexual orientation or gender identity. SCOTUS considered “whether an employer can fire someone simply for being homosexual or transgender” without violating federal law. And its determination was memorable. Writing for the majority, Justice Gorsuch found that this type of discrimination violates Title VII. He was joined in his majority decision by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Justices Alito, Thomas, and Kavanaugh all dissented. The central dispute between the justices was whether textualism was applied in the reasoning or some form of “judge supplementation” of a statute.

Nonetheless, despite the argument between the justices, Bostock resolved the recent split among the federal appellate courts as to whether Title VII’s prohibition against “sex” discrimination encompasses sexual orientation or gender identity. This split in the federal appeals courts can be traced back to the Seventh Circuit opinion in the decision Hively v. Ivy Tech Community College of Ind.

Hively was a recent decision. And it was a doozy. Not in the ultimate holding, but the reasoning appeared all over the place and not well grounded in the legal assessment that should have been applied. Instead, the justices in that case appeared to more blatantly apply “judge supplemented” legislation. In fact, Justice Posner went so far to ask that everyone call it out for what it really is: judicial interpretive updating. Ultimately, the court—with arguably different reasoning than Bostock—determined that discrimination based on sexual orientation is discrimination based on sex under Title VII.

Differing slightly in the reasoning, the Bostock court looked at the language at the time Title VII was enacted in 1964. In doing so, the court recognized that Congress may not have anticipated that the Supreme Court might one day interpret the law to prohibit discrimination because an employee is gay or transgender. The majority opinion determined that the drafters’ intentions are no substitute for the plain language of the statute. Accordingly, the majority determined that there is “no contest” that Title VII’s prohibition against discrimination based on sex encompasses sexual orientation and gender identity.

And it determined this by applying the plain language applicable to the meaning of “sex.” In other words, SCOTUS set out to determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). But the court did not stop at defining “sex” in 1964. It opted to look at the statute’s language of “because of” and applied the standard of but-for causation. In other words, so long as the plaintiff’s sex was one but-for cause of the employment decision, that is enough to trigger a violation of the law.

The court explained that an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. And SCOTUS had examples. Those examples consisted of the following: consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.

Turning to the issue of your employment policies

Many employers rightfully already have policies and practices in place that are inclusive of lesbian, gay, bisexual, and queer (LGBTQ) workers, and now is a great time to review those policies and programs in light of SCOTUS’s ruling.

Currently, many states and local municipalities have laws in place to protect the LGBTQ community in the workplace. Those existing state and local laws that explicitly protect applicants and employees from discrimination based on sexual orientation and gender identity will remain in place. SCOTUS’s decision now protects LGBTQ workers nationwide.

Expanding your policy to include protections for sexual orientation and gender identity is the right thing to do. It will also provide evidence that your company intends to comply with Title VII’s protection of “sex” in its totality.

Employers should also undertake comprehensive reviews of their job application, hiring practices, and ongoing work processes. They should also conduct supervisor training on this protected class to assure that their managers, supervisors, and employees understand the change in the national laws. Employers should be sure to have clear anti-harassment and anti-discrimination standards for the LGBTQ worker, so as to protect the workers and themselves from missteps.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding employment discrimination claims and any other general liability defense questions at bsmith@keefe-law.com.

Synopsis: Indiana Worker’s Compensation/GL News: TTD and PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calculations for Extremities Are Being Changed.

This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Every year about this time, the new Indiana statutes go into effect on July 1. Also as usual, many WC changes to the statutes were proposed during the Legislature Session, but few actually made it into law. Here is a summary of a few important changes you should know about.

First, although it was proposed and expected, the TTD minimum/maximum rates and PPI rates did not change.  Please keep using the same rates that you have used for injuries that occur after 7/1/2016.

Second, the IWCB’s mileage reimbursement rates slightly increased from .38/mile to .39/mile for travel outside the county of employment on or after March 1, 2020. This change is not statutory, but was enacted by the State of Indiana Department of Administration that must be followed by the IWCB per I.C. 22-3-3-4.

Third, there were some statutory changes to the PPI statute (I.C. 22-3-3-10) for vision claims. Subsection (i)(12) was deleted and a new one was substituted: “Visual impairments shall be based on the Functional Vision Score (FVS), assessing the visual acuity and visual field to evaluate any reduction in ability to perform vision-related Activities of Daily Living (ADL). Unless such loss is otherwise specified in subsection (i)(5), visual impairments shall be paid as a whole person rating.”

Finally, although the PPI rates were not changed, the IWCB has instituted Guidelines that will affect PPI calculations for upper and lower extremities from now on.  You may have had 1043s recently rejected even though your PPI calculations were based on the same PPI chart we’ve used for decades. If you’d like a copy of these new guidelines, or an updated rate chart, let me know. In summary, a wrist injury will be considered an impairment of the upper extremity, but if use of the hand is also affected, there should be a hand rating as well, and these will be combined. Also, if there are impairments to various parts of a limb, such as an elbow and wrist, the Board will approve payment for the combined rating to the upper extremity.

Also, upper and lower extremity impairments will no longer be separated into above or below the joint except in the case of amputations, per IC 22-3-3-10 (i)(1), (9) and (10). Upper extremity ratings for those joints should be based on 50 degrees, not 40; lower extremity ratings for foot, ankle (and knees) will be based on 45 degrees instead of 35 degrees. These PPI changes are advisory, for general guidance, and not enacted by a new 2020 statute, but these changes are being implement and enforced by the IWCB in approvals and calculations now.

Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

You can also link to the Apple Podcast here: Brad's Everything Legal Podcast.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

6-16-2020; Infectious Incident Investigation into Covid-19 Claims and more

Synopsis: WC/OD Coverage Considerations and Compensability for Covid-19 Claims. Learn what “I.I.I.” or “Infectious Incident Investigation” Means.

Editor’s comment: As I have advised my readers, consider anyone investigating the “incident” leading to determination of when/if someone got Covid-19 at work to be just that—an incident you have a duty to fully investigate. You need to make it clear to your workers they need to fully cooperate as lives are clearly at stake. The focus isn’t on a WC-only claim—you are investigating a possible occupational disease that is primarily contracted from contact/germs from other humans. See my article below for investigation tools/questions to best investigate and track Covid-19 exposures.

In general, an illness that arises from Covid-19 will need to meet both to be compensable and result in WC/OD benefit eligibility:

1. Illness/exposure must arise out of and occur in the scope of employ.

2. Illness must arise out of or be caused by conditions particular to the work and not an ordinary disease of life to which the general public is exposed.

In the case of Covid-19, it is critical to understand the job an employee was performing if/when exposed.

Legal, claims and insurance experts are aware of the recent activity in many states involving executive orders and legislative activity. For example, healthcare professionals, first responders (EMT), hospital workers, and lab technicians often have a lower threshold for connecting the cause/source to the course and scope of their work.

OSHA is now mandating you investigate and report positive diagnoses for Covid-19. If you have concerns about how to handle an OSHA issue, reach out to KCB&A’s top OSHA attorney, Brad Smith at bsmith@keefe-law.com for great advice.

WC/OD Claim Reporting and Management

In accordance with state WC/OD requirements, employees or managers who think they or their colleagues could have a COVID-19 work-related claim that meets the threshold for compensability, as outlined above, should seek prompt reporting and investigate it immediately. Convey this urgency to report and investigate to your entire workforce as often as possible. This will allow your workers compensation/occdisease legal/claims and risk experts to work with you and your employee to determine if benefits are appropriately due.

As the infection continues to spread across the U.S., establishing place of work as the sole source of exposure, rather than exposure by the general public, will become increasingly challenging. Each claim will be considered as unique with individual merits.

When you investigate a suspected Covid-19 related WC incident, please:

• Mention Covid-19 in the incident description to allow legal, claims and risk managers to recognize the need to mobilize.

• Determine if the worker had contact with a person known to be infected with or treated for Covid-19. This is called “contact-tracing.”

• If so, include when and where that contact occurred.

• As part of the infectious incident investigation confirm when symptoms of Covid-19 began, and if the diagnosis was confirmed.

• Inquire to confirm whether the worker, or any member of their immediate family or household, recently travelled to any high-risk areas.

• Determine if immediate family members are currently showing similar symptoms.

• Ask what other employees the worker may have had close contact with recently.

• Share any information related to perceived higher risk of exposure for this specific employee and the nature of that exposure (e.g., healthcare worker or first responder).

Operational response plan for employers

The best way to contain potential exposures to Covid-19 during this period is to focus on employee well-being and safety. You should also review your group health plan for potential coverage for preventative care.

Does workers compensation/occdisease coverage typically cover employees traveling abroad?

IL WC/OD and many state acts extend WC/OD coverage for foreign travel. Consider virtual travel until the pandemic ends.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Infectious Incident Investigation into Covid-19 WC/OD Claims.

Editor’s comment: Our clients and my readers have been asking for guidance on investigating potential COVID-19 claims. Please remember when you are looking into Covid-19 potential claims, you aren’t typically investigating an “accident.” This is a disease investigation.

Health Privacy Laws in a Work-Related Infectious Incident Investigation

Please note having the worker sign a HIPAA-compliant release form will protect you. Ask them to do so and save it to their medical file—don’t put it in their personnel file. Don’t put any of the investigation into their personnel file. If you need a HIPAA-complaint release, send a reply and I will forward it immediately. If the worker refuses to sign, you can still move forward and ask everything I outline below. If you aren’t sure how HIPAA works in this milieu, send a reply.

My advice to everyone is get the word “accident” out of your lexicon—“incident” works better. “Infectious Incident Investigation” works even better!!

If you have and will investigate WC/OD claims for the Covid-19 disease, here is Gene Keefe’s infectious incident investigation protocol

QUESTIONS FOR WORKERS IN AN INFECTIOUS INCIDENT INVESTIGATION.

1.     What is your job title?

2.     What are your job duties? 

3.     What are the specific job duties that you claim led to the infectious incident exposure?

1. Get specifics and find out how often the job duties outlined might put your employee in connection with the virus.

2. Consider second level investigation when you have that information.

4.     When did this alleged infectious exposure take place?

5.     How many times where you exposed?

6.     How long were you exposed each time?

7.     If the exposure is claimed related to interaction with a person at work – who do you allege had the diagnosis of Covid-19 disease and what work-related connection do you have to that person?

8.     How often did you come into contact with this person. 

9.     When and where do you come into contact?

10. What was the nature of your contacts with this person?

11. What exactly were you doing when you allege you were exposed to this virus from that other worker or workers?

12. Do you know anyone outside of work who has been sick with any medical condition(s) recently?  

13. If so what is you connection and exposure to them?

14.Do you know anyone who has been positively diagnosed with Covid-19 disease?  

15. If so who and what if your connection to that person?

16. Have you traveled outside of the United States for any reason in the last month?  If so where were you?

17. Do you know anyone who has traveled outside the United States in the last month?

18. If so who and what is your connection to that person?

19. Do you have another job? If so, explain.

20. Do you have any hobbies or social activities that might expose you to Covid-19 disease?

A.    IF EMPLOYEE IS ALLEGING EXPOSURE ONLY

All the above questions above, and

• Describe all of your work locations for our company for the past 30 days.

• Were you properly using any employer-provide PPE or personal protective equipment?

• Have you been tested for Covid-19 disease?

• What were the results?

• If you haven’t been tested, do you plan to be tested for Covid-19 disease?

• If so, when and where?

• Has anyone you know outside of work tested positive for COVID-19?

• If so, when and where?

• Are you being treated for Covid-19?

• Have you taken any medication related to this alleged exposure?

• Has anyone else at your work site(s) told you they were exposed?

• Has anyone at your work site(s) told you they were positive for Covid-19?

B.    IF ALLEGING POTENTIAL ILLNESS/INFECTION

These additional questions apply to a claimant who is alleging exposure and illness, but has not received a formal diagnosis (positive COVID-19 test).

All of the above questions, and all questions regarding alleged exposure and

• Do you have a fever?

• Have you had a fever? If so, when?

• Describe your current and continuing symptoms.

• When was the onset of your current symptoms?

• Do you have any other unrelated medical conditions?

• Are you on any medications?

C.    IF ALLEGING CURRENT COVID-19 ILLNESS

These questions apply where the claimant has a positive COVID-19 test result. Ask all the questions above and

• Where was your positive diagnosis made?

• By whom?

• What treatment was provided at the time of diagnosis?

• What guidance did the testing provider give?

• When (time and date) was your diagnosis made?

• How long did you have symptom onset before testing and diagnosis?

• When was the last day you worked prior to your positive test?

• Have you been ordered to self-quarantine by any health or civil authority?

• How long have you been in isolation? 

• Who do you live with; inquire about family members affected.

QUESTIONS FOR SUPERVISORS

Here are questions for risk/claims managers when asking supervisors and onsite managers

A.    “SUSPECTED BUT UNCONFIRMED” STATUS

This inquiry includes employees who self-report they have symptoms, employees who self-report they came in contact with someone with presumptive positive case of COVID-19. 

• Did you send employees home from work who were showing symptoms? If yes, explain.

• Did you send employees home from work who self-reported contact with presumptively positive person?

• Did you observe and record employees with symptoms?

• Did you take employee’s temperatures?

• What precautions did you take for those collecting temperatures from employees, applicants, or customers?

• Was Personal Protection Equipment (“PPE”) distributed to employees? If so, what PPE was made available?

• Were any employees traveling into an known-affected area? Any employee traveling to and from a non-restricted area? If so, where?

• Were any employees traveling from a Covid-affected area?

• Were any employees traveling through any of the 13 airports where DHS has established enhanced screening procedures in the last 90 days? What was the result of their medical interview (if known).

• Has a remote work policy been implemented? If so, when?

• Did you send home all employee who worked closely with the presumptively positive individual?

• How many employees did you send home? 

• Did you remain in contact with employees sent home to determine if they developed symptoms?

• How long did employees remain in self-isolation?

B.    CONFIRMED POSITIVE / EMPLOYEE TESTED POSITIVE

These questions are for employers with confirmed (“tested”) positive claimants.

• Did employees test positive?

• What was your protocol for positive employees?

• Did you remain in contact with infected employees to determines status?

• Was any report made to CDC, OSH, State OSH, State DOL, or local health authorities?

• Did you send home all employee who worked closely with the positive individual?

• How many employees did you send home?

• Did you remain in contact with employees sent home to determine if they developed symptoms?

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Indiana Worker’s Compensation/GL News: TTD and PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calculations for Extremities Are Being Changed.

This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Every year about this time, the new Indiana statutes go into effect on July 1. Also as usual, many WC changes to the statutes were proposed during the Legislature Session, but few actually made it into law. Here is a summary of a few important changes you should know about.

First, although it was proposed and expected, the TTD minimum/maximum rates and PPI rates did not change.  Please keep using the same rates that you have used for injuries that occur after 7/1/2016.

Second, the IWCB’s mileage reimbursement rates slightly increased from .38/mile to .39/mile for travel outside the county of employment on or after March 1, 2020. This change is not statutory, but was enacted by the State of Indiana Department of Administration that must be followed by the IWCB per I.C. 22-3-3-4.

Third, there were some statutory changes to the PPI statute (I.C. 22-3-3-10) for vision claims. Subsection (i)(12) was deleted and a new one was substituted: “Visual impairments shall be based on the Functional Vision Score (FVS), assessing the visual acuity and visual field to evaluate any reduction in ability to perform vision-related Activities of Daily Living (ADL). Unless such loss is otherwise specified in subsection (i)(5), visual impairments shall be paid as a whole person rating.”

Finally, although the PPI rates were not changed, the IWCB has instituted Guidelines that will affect PPI calculations for upper and lower extremities from now on.  You may have had 1043s recently rejected even though your PPI calculations were based on the same PPI chart we’ve used for decades. If you’d like a copy of these new guidelines, or an updated rate chart, let me know. In summary, a wrist injury will be considered an impairment of the upper extremity, but if use of the hand is also affected, there should be a hand rating as well, and these will be combined. Also, if there are impairments to various parts of a limb, such as an elbow and wrist, the Board will approve payment for the combined rating to the upper extremity.

Also, upper and lower extremity impairments will no longer be separated into above or below the joint except in the case of amputations, per IC 22-3-3-10 (i)(1), (9) and (10). Upper extremity ratings for those joints should be based on 50 degrees, not 40; lower extremity ratings for foot, ankle (and knees) will be based on 45 degrees instead of 35 degrees. These PPI changes are advisory, for general guidance, and not enacted by a new 2020 statute, but these changes are being implement and enforced by the IWCB in approvals and calculations now.

Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

You can also link to the Apple Podcast here: Brad's Everything Legal Podcast.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

6-9-2020; OSHA Rules and Dealing With New Covid-19 Claim with Illinois Guidance; Indiana WC/GL News: TTD/PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calc and more

Synopsis: OSHA Enforcement Guidance for Federal Inspections/Record-keeping of COVID-19 Cases Compared to IL Legislation Just Signed by IL Governor Pritzker.

Editor’s comment: Please note Illinois reported 867 new Covid 19 cases yesterday. We hit the peak with around four times that number some time back and Covid-19 may be disappearing soon—please keep distancing and masking. For riskies (or risk managers), this may be gone or minimal in your workplace in about a month.

Our top clients and readers are asking what do we do in response to Governor Pritzker’s signature on the Covid-19 Bill that makes WC/OD coverage somehow “presumptive” for some IL employees. Please note OSHA is federal and applies to all 50 states and DC. Illinois law is nutty, the outcomes hard to predict and covers one state. If/when the virus peters out, we may be able to go back to our lives without further ado, until the next virus trundles in. If you want my thoughts on Governor Pritzker’s new law, stay calm and follow the federal rules from OSHA.

Enforcement Guidance

Federal OSHA has faced recent lawsuits from national labor orgs relating its regulatory response to the Covid-19 pandemic, including its decision not to issue new regulations to address this pandemic. On May 19, 2020, OSHA issued what riskies call an “ERP” or  new enforcement guidance (Updated Interim Enforcement Response Plan for Coronavirus Disease 2019, May 19, 2020) acknowledging many non-critical businesses have begun to reopen in areas of lower community spread, and then numerous other businesses will be reopening soon. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available for OSHA workers. According to OSHA, it will “continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.” In the areas of lower risk, OSHA will return to doing more onsite inspections, which have largely been limited to fatality inspections during the pandemic.

This is “Incident Only” Until You Learn Different

A great risk manager asked if we/she has to accept any claim of Covid-19 at work. In my view, handle all reported issues as “incident only” until you receive a reason or evidence from the worker or someone else indicating the condition is due to contact tracing at your workplace.

Please do not deny randomly—the entire nation and civilized world is ready to blame employers for randomly denying Covid-19 claims. If you have a strong basis to deny, then deny. If you don’t and the employee needs your help, help!!!

Hospitals/Clinics Watch Out For OSHA’s New Focus

According to the guidance, OSHA will continue to prioritize COVID-19 cases. The federal agency acknowledged it will continue to target healthcare employers, who have not been a primary target of OSHA enforcement. During an inspection, the ERP instructs compliance officers to examine whether employees “who are expected to perform very high and high risk exposure tasks are using respirators (i.e., N95 or better).” The ERP states in bold text “appropriate respiratory protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19.” Area Directors will continue to evaluate potential on-site inspections for COVID risks to OSHA personnel and will not send compliance officers where they perceive a hazard.

For employers with onsite clinics—note the federal rules and follow!!

Enforcement against employers will be largely through the OSHA “General Duty” clause. The ERP provides a sample citation (Attachment 4), again focused on healthcare employment and precautions during the treatment of COVID-19 patients.

Attached to the Updated Interim Enforcement Response Plan are specific enforcement procedures (Attachment 1); a sample employer letter for COVID-19 activities (Attachment 2); a sample hazard alert letter (Attachment 3); and additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).

OSHA Federal Record-keeping Guidance

OSHA is revising its previous enforcement policy for recording cases of coronavirus (Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019, May 19, 2020). Under OSHA’s recordkeeping requirements, coronavirus is a potentially recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

• Is confirmed as a coronavirus illness;

• Is work-related as defined by 29 CFR 1904.5; and

• Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

Work related cases that result in an employee fatality or must be reported to OSHA by phone or online. Because of the difficulty in determining whether this widespread virus was actually contracted at the worksite, OSHA has stated it will focus on an employers' reasonable, good faith efforts in making work-related determinations.

Gene Keefe (me) wants all employers to understand if you fight a Covid-19 claim without a basis to do so, understand the media will attack and attack some more.

Have a good faith basis if you want to fight during this pandemic.

In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, OSHA Compliance Officers will consider the following:

·                     The reasonableness of the employer's (or your) investigation into work-relatedness.

·                     Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area.

·                     It is sufficient for you, when you learn of an employee's COVID-19 illness,

·                     (1) to ask the employee how they believe they contracted the COVID-19 illness;

·                     (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and

·                     (3) review the employee's work environment for potential SARS-CoV-2 exposure.

·                     The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

Accordingly, OSHA continues to recognize the difficulty in determining work-relatedness for an exposure and then illness that exists in the community and may be contracted from numerous sources and will assess employers’ reasonable efforts in making work-related determinations. In making the work-relatedness determination, employers have to consider the effect of numerous safety and health procedures the employer has implemented to control and minimize the risk of current and future infections within your workplace.

Your program should be following the guidance of the CDC and OSHA regarding COVID-19. These precautions, when considered individually and collectively, effectively reduce and control the possible risk the COVID-19 virus will be present and/or transmitted to another worker in the workplace. For example, by ensuring your employees are staying home and not at work when they have symptoms that might be COVID-19 you would be eliminating the possibility a worker who is symptomatic with COVID-19 is at work. Further, by following key safety precautions, such as social distancing and wearing masks and face coverings, you are eliminating or significantly reducing the chance a worker will be in “close contact” with someone who may have COVID-19. 

If you make a reasonable and good faith inquiry but cannot determine whether it is more likely than not exposure in the workplace caused a worker to contract COVID-19, OSHA says you do not need to record the case or to report a hospitalization or fatality. There is community transmission of the disease, so if you are taking the CDC-recommended precautions, there are very few situations where an inquiry will reveal an employee definitely got the case at work and there is no alternative explanation that is equally or more plausible.

Your individual work-relatedness reasonable inquiry for each COVID-19 case can be short and focused on whether your employee had close contact with other individuals at work (15 minutes or more of contact, within six feet, without face masks or barriers). Cases are not OSHA-recordable without close contact at work with a known or suspected COVID-19 case. Such contact is necessary but insufficient, because the probability of transmission is low and there is normally an alternative explanation of community transmission.

Happy to help with any incident or claim—send a reply or contact JCampbell@keefe-law.com or SBiery@keefe-law.com or me.

Synopsis: Indiana Worker’s Compensation/GL News: TTD and PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calculations for Extremities Are Being Changed.

This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Every year about this time, the new Indiana statutes go into effect on July 1. Also as usual, many WC changes to the statutes were proposed during the Legislature Session, but few actually made it into law. Here is a summary of a few important changes you should know about.

First, although it was proposed and expected, the TTD minimum/maximum rates and PPI rates did not change.  Please keep using the same rates that you have used for injuries that occur after 7/1/2016.

Second, the IWCB’s mileage reimbursement rates slightly increased from .38/mile to .39/mile for travel outside the county of employment on or after March 1, 2020. This change is not statutory, but was enacted by the State of Indiana Department of Administration that must be followed by the IWCB per I.C. 22-3-3-4.

Third, there were some statutory changes to the PPI statute (I.C. 22-3-3-10) for vision claims. Subsection (i)(12) was deleted and a new one was substituted: “Visual impairments shall be based on the Functional Vision Score (FVS), assessing the visual acuity and visual field to evaluate any reduction in ability to perform vision-related Activities of Daily Living (ADL). Unless such loss is otherwise specified in subsection (i)(5), visual impairments shall be paid as a whole person rating.”

Finally, although the PPI rates were not changed, the IWCB has instituted Guidelines that will affect PPI calculations for upper and lower extremities from now on.  You may have had 1043s recently rejected even though your PPI calculations were based on the same PPI chart we’ve used for decades. If you’d like a copy of these new guidelines, or an updated rate chart, let me know. In summary, a wrist injury will be considered an impairment of the upper extremity, but if use of the hand is also affected, there should be a hand rating as well, and these will be combined. Also, if there are impairments to various parts of a limb, such as an elbow and wrist, the Board will approve payment for the combined rating to the upper extremity.

Also, upper and lower extremity impairments will no longer be separated into above or below the joint except in the case of amputations, per IC 22-3-3-10 (i)(1), (9) and (10). Upper extremity ratings for those joints should be based on 50 degrees, not 40; lower extremity ratings for foot, ankle (and knees) will be based on 45 degrees instead of 35 degrees. These PPI changes are advisory, for general guidance, and not enacted by a new 2020 statute, but these changes are being implement and enforced by the IWCB in approvals and calculations now.

Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

You can also link to the Apple Podcast here: Brad's Everything Legal Podcast.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com