Workers’ Compensation News and Views | CHARFOOS REITER HÉBERT, PC

May

Michigan Executive Order 2020-128: Clarifying Workers’ Disability Compensation Eligibility for Workplace Exposure to COVID-19

On June 18, 2020, Governor Gretchen Whitmer issued Executive Order 2020-128, which sought to clarify her previous statements and directives regarding workers’ disability compensation eligibility in the State of Michigan for employees who have been confirmed as positive for the novel coronavirus (COVID-19). This Executive Order officially replaced the Emergency Rules for “first response” employees, which the Department of Labor & Economic Opportunity previously filed with the Secretary of State on March 30, 2020. With Executive Order 2020-128, Governor Whitmer has clarified and expanded the traditionally understood definition of a “first response employee” during the COVID-19 era. Under the new Order, the term “first response employee” has been replaced by “COVID-19 response employee.” A “COVID-19 response employee” is now defined as “an employee whose job responsibilities require them to have regular or prolonged contact with COVID-19 in the course of their employment.” For the purposes of Executive Order 2020-128, the following individuals are presumed to be “COVID-19 response employees”: • Any person who is required to report to work in one or more of the following workplaces: an “ambulance operation,” a “county medical care facility,” an “emergency response service,” a “home for the aged,” a “hospice,” a “hospital,” a “nursing home,” or a “home health agency,” as those terms are defined in the Public Health Code, MCL 333.1001 et seq.; • A person working as a physician, physician assistant, licensed practical nurse, registered professional nurse, medical first responder, nurse, emergency medical technician, paramedic, or respiratory therapist who is required to provide in-person medical care to patients; • A law enforcement officer or motor carrier officer, to the extent that the officer is required to report to work and interact with the general public; • A firefighter or other member of an emergency rescue team; • A volunteer civil defense worker or on-call member of a life support agency, to the extent that the individual is required to report to work; and • Any state or local government employee who is required to work within the secured perimeter of a penal institution, including but not limited to correctional facilities, jails and detention centers. For the purposes of determining workers’ disability compensation eligibility, any “COVID-19 response employee” who has been confirmed as COVID-19 positive on or after March 18, 2020, either by physician or by test, shall be presumed to have suffered a compensable, work-related “personal injury,” as that term is defined in Section 401(2)(b) of the Workers’ Disability Compensation Act, MCL 418.401(2)(b). This presumption of compensability remains subject to rebuttal by specific facts to the contrary. The provisions of Executive Order 2020-128 will remain in effect until the termination of any currently or subsequently declared states of emergency and/or disaster which may arise out of the COVID-19 pandemic.

May

Update for Michigan Employers/Workers’ Compensation Carriers in re: Claimant Job Searches and Independent Medical Examinations in the COVID-19 Era By: Brian Richards Esq.

On June 12, 2020, the Michigan Workers’ Disability Compensation Agency updated its previous guidance for employers and insurance carriers regarding claimant job searches under MCL 418.301 and 401 during the COVID-19 pandemic. The WDCA had previously issued guidance to employers/carriers via a memorandum dated March 24, 2020, which urged a temporary waiver of the usual statutory requirement for a clamant to show that he/she has engaged in a “good faith” job search in order to qualify for workers’ compensation wage loss benefits. The WDCA’s updated memorandum of June 12, 2020, notes that many of Governor Whitmer’s Executive Orders in relation to COVID-19 have since been modified and loosened to allow for Michigan residents to resume various nonessential types of employment. However, despite this loosening of some employment restrictions, the WDCA notes that Governor Whitmer has maintained her previous Order indicating, “Any work that is capable of being performed remotely must be performed remotely.” Additionally, the WDCA has cautioned employers that, even if an injured/disabled worker is offered a return to work for the same employer at lighter or accommodated duties, or if that injured/disabled worker finds suitable work at a different employer, any employment circumstance must comply with all currently applicable Executive Orders regarding employee safety in order to satisfy the requirement that a job is considered “reasonable” employment under MCL 418.301(11) and MCL 418.401(9). The WDCA has also updated its guidance to employers/carriers regarding independent medical examinations under MCL 418.385. Pursuant to the previous memorandum of March 24, 2020, the WDCA urged employers/carriers to postpone all independent medical examinations while Governor Whitmer’s “Stay Home, Stay Safe” Order remained in effect. Likewise, the WDCA previously cautioned that employers/carriers may be liable for penalties if any adverse action was taken against a claimant for failing to attend an independent medical examination during the Statewide COVID-19 shutdown. The WDCA’s updated memorandum of June 12, 2020, notes that employers/carriers may now begin to schedule claimants for independent medical examinations, following Governor Whitmer’s recission of the “Stay Home, Stay Safe” Order. However, similar to the point raised above regarding the “reasonableness” of a job offer, an employer’s/carrier’s request for an independent medical examination should only be made if the examination facility is in full compliance with all currently applicable Executive Orders for businesses, including health care facilities, to operate with utmost safety precautions in place. Further, the WDCA has cautioned employers/carriers that an injured worker’s refusal to participate in a medical examination at a facility that is not in compliance with all applicable Executive Orders should not have any adverse impact upon a claimant’s eligibility for workers’ compensation benefits. Thus, considering the WDCA’s updated guidance regarding claimant job searches and independent medical examinations during the COVID-19 pandemic, Michigan employers should remain conservative in their approach to disputing/terminating workers’ compensation benefits for the foreseeable future. Brian M. Richards, Esq.  Email: Brian.Richards@crh-law.com

May

COVID-19 Update

April 4, 2020 - The ongoing COVID-19 pandemic has led to significant uncertainty among employers, employees, insurance carriers, and third-party administrators as to the effect that COVID-19 is having – and will continue to have – upon the workers' compensation system in the State of Michigan. While we recognize that the COVID-19 crisis remains a fluid and ever-changing situation, the attorneys at Charfoos Reiter Hébert, P.C. have prepared a comprehensive and informative update which we believe addresses the most currently pressing issues for employers/carriers and provides our recommendations for the continued administration and defense of Michigan workers' compensation claims. On March 16, 2020, the Michigan Workers' Disability Compensation Agency formally suspended all in-person hearings for the next five weeks, or until April 20, 2020. It is our understanding that the current restrictions as to in-person hearings may be subject to additional extension, pending further assessment by the Workers' Disability Compensation Agency as to the ongoing public health emergency. In the meantime, however, the Board of Magistrates has issued a blanket adjournment for all hearings that were previously scheduled during this period of closure and distributed new dates for each Magistrate's docket. We will advise clients of the rescheduled hearing dates accordingly. During the period while in-person hearings remain suspended, the Board of Magistrates is still conducting Redemption Hearings and Facilitation Hearings via telephone. We encourage our clients to continue extending settlement authority on cases that are ripe for Redemption, as plaintiffs and their attorneys may be more amenable to resolving claims via lump sum agreements during these trying and uncertain economic times. On March 18, 2020, Michigan Governor Gretchen Whitmer enacted Emergency Administrative Rules for the Workers' Disability Compensation Agency relative to all "first response employees," as the Workers’ Disability Compensation Agency has deemed those individuals to be the most susceptible to COVID-19 exposure within the course and scope of their employment. These Emergency Rules were subsequently amended on March 30, 2020. The Emergency Rules currently define a "first response employee" quite broadly, including almost every health care provider working in a health care organization/agency/facility, as well as any person working as a paid or on-call police officer, fire fighter, EMT, volunteer or civil defense worker, as well as state correctional and local corrections officers. Under the Emergency Rules promulgated on March 18, 2020, a "first response employee" is automatically presumed to have suffered a compensable Personal Injury arising out of and in the course of their employment if that employee meets ONE of the following criteria: • The employee is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure; • The employee receives a COVID-19 diagnosis from a physician; • The employee receives a presumptive positive COVID-19 test; OR • The employee receives a laboratory confirmed COVID-19 diagnosis. The Emergency Rules, at that time, did not differentiate between occupational and non-occupational COVID-19 exposure. Thus, all "first response employees" who met one of the above criteria would have been able to successfully establish a compensable work-related Personal Injury arising out of and in the course of their employment, regardless of any epidemiological source information which may suggest a non-occupational exposure. The March 30, 2020 amendment to this Emergency Rules, however, changed the causation analysis to one more akin to a rebuttable presumption analysis. Although compensability is still presumed for “first response employees,” the employer/carrier is able to rebut this presumption with proof that leads a “denial based on specific facts demonstrating that the first response employee was not exposed to COVID-19 at work.” On March 24, 2020, Governor Whitmer enacted Executive Order No. 2020-21, which required all Michigan residents to remain at home or at their place of residence through April 13, 2020. The Governor's "Stay Home, Stay Safe" Order specifically excluded any individuals whose work has been deemed necessary to sustain/protect life or to conduct minimum business operations. However, all other residents have been prohibited from engaging in employment activities outside of the home while the Order remains in effect. Although the "Stay Home, Stay Safe" Order does allow a Michigan resident to leave his/her home for regularly scheduled medical appointments, we believe that it would be reasonable for a workers' compensation claimant to cancel/postpone/reschedule a pending medical appointment, given the current quarantine situation and the social distancing guidelines/recommendations from the Centers for Disease Control. We do not recommend utilizing this situation as a basis to dispute ongoing medical or wage loss benefits. We would also suggest the postponement and rescheduling of any currently pending independent medical evaluations. Many of our clients have inquired regarding the question of wage loss benefits for claimants who were previously being accommodated in a favored work position with light duty restrictions and are now unable to work due to COVID-19 closures. Pursuant to Section 301(9)(e) of the Michigan Workers' Disability Compensation Act, if an individual has been employed in a favored capacity for fewer than 100 weeks and loses his/her job through no fault of his/her own, that individual is entitled to a resumption of workers' compensation benefits based upon the wages established at the time of the alleged work injury. Thus, we recommend that employers/carriers resume payment of wage loss compensation during any period when the employer is unable to accommodate light duty restrictions as a result of issues related to COVID-19. Michigan employers should prepare for an influx of workers' compensation claims related to the COVID-19 pandemic. The attorneys at Charfoos Reiter Hébert, P.C. remain available at any time to consult regarding any questions or concerns that employers or carriers may have as to this rapidly evolving situation.

May

By James J. Ranta - Is a worksite sexual harassment claim compensable?

Under current Michigan law, this is an interesting question without a clear-cut answer at the present time. Ultimately, I think that sexual harassment claims could potentially fall under the Workers’ Compensation Act, though there are lots of caveats. We have case law precedent in Michigan regarding physical assaults that are non-sexual in nature, where the holding has been that if the assault is connected to the employment in some manner, the victim could recover workers’ compensation benefits, but if the assault is “motivated by personal reasons” (Devault v GMC, 149 Mich App 765, 386 NW2d 671 (1986)), it would not be considered to be a workers’ compensation claim due to the fact that the activity would not be considered to “arise out of employment,” as required by the Michigan Workers’ Disability Compensation Act. I suspect that the facts would vary on a case-by-case basis to determine whether the requirement of “arising out of employment” is met, but that sexual assault/harassment cases would be analyzed the same way. The harassment would also have to cause disability to the general labor market, since Michigan is a wage-loss state, in order to be fully compensable – in other words, the individual would have to be restricted from working in ALL labor settings and not just with restrictions to avoid a certain boss or co-workers who fostered and/or caused the harassment. There could also be a potential issue with the exclusive remedy provision of the Act – if it’s not a workers’ compensation case, obviously the employer is opened up to general tort liability – previous cases involving allegations of false imprisonment and intentional infliction of emotional distress have proceeded in civil courts outside of the WC system on the basis that there are (were – cases were from 1971 and 1984) no remedies for those specific claims under the WDCA. In the latter case, Schutt v Lado, 138 Mich App 433, 360 NW2d 214 (1984), there were other alleged torts of assault and battery dismissed from the civil suit on the basis that those aspects of the claim WERE covered by WC. So, it looks like it could go either way based on the specific facts of a specific case according to those holdings as well. Stay tuned!

Michigan Workers Compensation News & Views

Michigan Executive Order 2020-128: Clarifying Workers’ Disability Compensation Eligibility for Workplace Exposure to COVID-19

Update for Michigan Employers/Workers’ Compensation Carriers in re: Claimant Job Searches and Independent Medical Examinations in the COVID-19 Era By: Brian Richards Esq.

COVID-19 Update

By James J. Ranta - Is a worksite sexual harassment claim compensable?