Court Case Update Retrospective: 2018-2021

Insights

Legal

By NCCI Insights March 07, 2022

In 2018, NCCI's Legal Division began providing reports on workers compensation (WC)-related cases that could impact and shape the future of the industry. To date, we have reported on nearly 200 cases and decisions addressing important topics such as exclusive remedy, marijuana, air ambulance reimbursement, challenges to the use of third-party guides, and most recently, COVID-19. This Court Case Update Retrospective: 2018–2021 provides a breakdown of the WC-related topics that courts have addressed in those nearly 200 cases, and an overview of the cases reported on in 2021.

For more information on the cases monitored by NCCI’s Legal Division, visit previous Court Case Update editions, featured in the Legal section of Workers Compensation Insights on ncci.com.

COVID-19 Cases

In 2020, NCCI began providing its stakeholders with an overview of COVID-19-related cases with potential implications for WC insurance. Many of these cases have dealt with determinations of whether contraction of COVID-19 is work-related and therefore compensable, or the application of exclusive remedy where employees contract COVID-19 and sue their employers in tort.

To date, we have reported on 22 COVID-19-related cases in 11 states, including CA, DE, FL, IA, IL, KS, MS, NY, OH, PA, and TX.

In 2021, NCCI reported on the following COVID-19-related cases:

California—See's Candies, Inc. et al. v. Superior Court of Los Angeles County (California Second District Court of Appeal)
California—Kuciemba v. Victory Woodworks (Federal District Court for the Southern District of California)
Delaware—Ingino-Cacchioli v. Infinity Consulting Sols. (Superior Court of Delaware)
Kansas—Talavera v. Bob’s Super Saver, Inc. (Kansas Workers Compensation Appeals Board)
Mississippi—West v. The Nichols Center (Mississippi Workers’ Compensation Commission)
New York—NYS Department of Corrections (New York Workers’ Compensation Board)

Exclusive Remedy

Challenges to the constitutionality and scope of exclusive remedy—providing employer immunity from injured employee tort suits—has been a hot topic among WC stakeholders and in the courts for several years. Courts have addressed issues such as the constitutionality of exclusive remedy protections, the applicability of exclusive remedy to foreign employees, minors, general contractors, and the scope of exclusive remedy exceptions, among others.

To date, NCCI has reported on 27 exclusive remedy cases, decided by courts across 18 states, including: AR, CA, CO, FL, ID, IL, KY, LA, MN, MO, MT, NV, OK, PA, SC, TX, VA, and WI.

In 2021, NCCI reported on the following exclusive remedy-related cases:

Colorado—Ryser v. Shelter Mutual Insurance Co. (The Colorado Supreme Court)
Idaho—Kelly v. TRC Fabrication, LLC (Supreme Court of Idaho)
Missouri—State ex rel. Beutler, Inc. v. Midkiff (Supreme Court of Missouri)
Pennsylvania—Franczyk v. The Home Depot, Inc. (Superior Court of Pennsylvania)
South Carolina—Keene v. CNA Holdings, LLC (Supreme Court of South Carolina)
Virginia—Lopez v. Intercept Youth Services, Inc. (Supreme Court of Virginia)
Wisconsin—Graef v. Continental Indemnity Co. (Supreme Court of Wisconsin)

Challenges to Third-Party Guides (AMA/ODG)

Since the Pennsylvania Supreme Court’s 2017 decision striking the statutory use of the “most recent edition” of the American Medical Association (AMA) Guides in Protz v. Workers Compensation Appeals Board, legal challenges to the AMA Guides and other third-party guides used to aid in the administration of the WC system have continued to garner stakeholder interest.

To date, NCCI has reported on 11 cases addressing challenges to third-party guides in states such as CO, KS, MT, OK, PA, TX, and UT.

Last year, NCCI reported on the following cases addressing third-party guides:

Colorado—Fisher v. ICAO (Court of Appeals of Colorado)
Kansas—Johnson v. US Food Service (Supreme Court of Kansas)
Kansas—Morris v. Schilling Construction Co. (Court of Appeals of Kansas)
Montana—Hensley v. Montana State Fund (Supreme Court of Montana)
US Department of Labor’s Benefits Review Board—Pierce v. Electric Boat Corp.

Marijuana Developments

Marijuana legalization has been a hot topic for some time, as courts have been actively reviewing marijuana-related issues in WC and the workplace. Issues reviewed by the courts have covered a wide range of topics including reimbursement for marijuana as a WC treatment, statutory presumptions, questions of compensability related to injuries caused by intoxication, drug testing requirements for state-authorized medical marijuana users, and employment-related decisions involving authorized medical marijuana users.

Since 2018, NCCI has reported on 29 marijuana-related cases, with varying outcomes across 16 states: AR, AZ, CT, DE, FL, ME, MA, MI, MN, MT, NH, NJ, NY, OK, PA, and VT.

2021 cases on marijuana in WC:

Arkansas—Jones v. Amercable Corp. (Arkansas Workers’ Compensation Commission)
Florida—Jones v. Grace Health Center (Florida First District Court of Appeal)
Minnesota—Musta v. Mendota Heights Dental Center and Bierbach v. Digger’s Polaris (Minnesota Supreme Court
New Hampshire—Appeal of Andrew Panaggio (New Hampshire Supreme Court)
New Jersey—Hager v. M&K Construction (Supreme Court of New Jersey)
New York—Matter of Quigley v. Village of E. Aurora (New York Supreme Court Appellate Division)
Pennsylvania—Bunty v. Demuth Steel Products, Inc. (Workers’ Compensation Appeals Board)
Pennsylvania—Palmiter v. Commonwealth Health Systems, Inc. (Superior Court of Pennsylvania)

Air Ambulance Reimbursement

Courts have been reviewing cases addressing whether state WC laws limiting air ambulance billing rates are preempted by the federal Airline Deregulation Act of 1978 (ADA).

Since 2018, NCCI has reported on 8 air ambulance cases decided by federal and state courts in 6 states, including CO, FL, KS, TN, TX, and WV.

2021 air ambulance cases:

Federal—Air Evac EMS, Inc. v. Sullivan (Federal Court of Appeals for the Fifth Circuit)
Florida—Air Methods Corp. v. Altmaier (Federal District Court for the Northern District of Florida)
Kansas—Eaglemed, LLC v. Travelers Insurance (Supreme Court of Kansas)
Texas—Texas Mutual Insurance Co. v. PHI Air Medical, LLC (Texas Supreme Court)

Attorney Fees

Courts have reviewed questions related to attorney fees in WC cases. Some of these cases have raised constitutional challenges to WC statutes that govern the payment of attorney fees in WC.

Since 2018, NCCI has reported on 13 attorney fees cases that have been decided by courts in 9 states, including AL, AK, AR, FL, MD, NE, PA, UT, and WV.

In 2021, NCCI reported on the following attorney fees case:

Lorino v. Workers’ Compensation Appeals Board (Supreme Court of Pennsylvania)

Additional State and Federal Developments

State and federal courts continue to consider cases that test the constitutionality of or raise issues that could impact the WC system.

For nearly 4 years, NCCI has reported on 97 cases from a wide variety of states where courts have considered issues surrounding compensability, impacts on benefits, and other topics such as subrogation, independent contractors, or traveling employees.

Here is an overview of state and federal cases reported in 2021:

Federal Case

Presumption of Compensability for Federal Contractor Illnesses, United States of America v. State of Washington (United States Supreme Court)

State Cases (by geographic zone)
Northeast

Maine—Compensation for Injury Manifesting Outside the Workplace, Thomas v. United Ambulance Service (Workers’ Compensation Board, Appellate Division)
Maryland—Statutory Offset of Benefits, Spevak v. Montgomery County (Court of Special Appeals of Maryland)
New Hampshire—Compensability of Death by Suicide, Appeal of Pelmac Industries, Inc. (New Hampshire Supreme Court)
New York—Forfeiture of WC Benefits, Kornreich v. Elmont Glass Co. (New York Appellate Division, Third Department)
Pennsylvania—Injuries Suffered by Traveling Employees, Peters v. WCAB (Supreme Court of Pennsylvania)
Pennsylvania—Suspension of Benefits During Incarceration, Sadler v. WCAB (Supreme Court of Pennsylvania)

Southeast

Arkansas—Statute of Limitations for Benefits, Wynne v. Liberty Trailer (Arkansas Court of Appeals)
Arkansas—Employer’s Requirement to Prove Bona Fide Job Offer, Calhoun v. Area Agency on Aging of Southeast Arkansas (Supreme Court of Arkansas)
Florida—Time for Filing a Notice of Claim for Post-Traumatic Stress Disorder (PTSD), Palm Beach County Fire Rescue v. Wilkes (Florida First District Court of Appeal)
Kentucky—Constitutional Challenge to WC Statute, Dowell v. Matthews Contracting (Kentucky Supreme Court)
Kentucky—Deadline to Submit Medical Bills, Wonderfoil v. Russell (Kentucky Supreme Court)
Kentucky—Interest Rate on Income Benefits, Martin v. Warrior Coal LLC (Kentucky Supreme Court)
Louisiana—Duty of Good Faith and Fair Dealing in WC, Cox, Cox, Filo, Camel & Wilson, LLC v. Louisiana Workers Compensation Corp. (Louisiana Supreme Court)
Louisiana—PPD for Noise Induced Hearing Loss, Hartman v. St. Bernard Parish Fire Dept. (Supreme Court of Louisiana)
Mississippi—Bad Faith Lawsuit, Thornhill v. Walker-Hill Environmental (Mississippi Court of Appeals)

Midwest

Kansas—Constitutional Challenge to Death Benefits Cap, Neal v. Max Papay, LLC (Court of Appeals of Kansas)
Kansas—Prevailing Factor Test and Secondary Injury Rule, Perez v. National Beef Packing Co. (Court of Appeals of Kansas)
Kansas—Calculation of Subrogation Lien, Hawkins v. Southwest Kansas Co-Op Service (Supreme Court of Kansas)
Missouri—Permanent Total Disability (PTD) Benefits From the Second Injury Fund, Treasurer of the State of Missouri v. Parker (Supreme Court of Missouri)
North Dakota—Compensation for Injuries Due to Heart Injury or Disease, State by and through Workforce Safety and Insurance v. Felan (Supreme Court of North Dakota)
South Dakota—Authority to Adjudicate Claims for Extraterritorial Injuries, Anderson v. Tri State Construction, LLC (Supreme Court of South Dakota)

West

Arizona—Workers Compensation for Mental Injuries, France v. The Industrial Commission of Arizona (Supreme Court of Arizona)
Colorado—Caps on Benefits After Apportionment, Browne v. Industrial Claim Appeals Office (Colorado Court of Appeals, Division I)
Colorado—WC Subrogation, Delta Airlines, Inc. v. Scholle (Supreme Court of Colorado)
Idaho—Statute of Limitation for Claims Against the Industrial Special Indemnity Fund, Stanley v. State of Idaho Industrial Special Indemnity Fund (Supreme Court of Idaho)
Montana—Constitutionality of WC Subrogation Statute, Hogan v. Federated Mutual Insurance Co. (Montana Worker’s Compensation Court)
Oregon—Requirements for Existence and Denial of Combined Conditions, Matter of Sexton (Oregon Court of Appeals)

This article is provided solely as a reference tool to be used for informational purposes only. The information in this article shall not be construed or interpreted as providing legal or any other advice. Use of this article for any purpose other than as set forth herein is strictly prohibited.

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