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Watch for These 4 Workers’ Comp Litigation Trends in 2022

From COVID-19 compensability disputes to whether marijuana is reimbursable, here are four litigation trends shaping workers’ comp. From whether COVID-19 is reimbursable to developments in medical marijuana’s compensability, it has been a busy year for workers’ comp decisions at both the state and federal level.

Courts are continuing to make decisions on other, more common matters, such as when workers’ comp is an exclusive remedy as well.

Last month, the National Council on Compensation Insurance (NCCI) released its November 2021 Court Case update , highlighting a number of key decisions and litigation trends affecting the industry. Here are four of the top trends from the report. 1) COVID-19 Related Cases

NCCI’s report spotlighted four cases where either the compensability of COVID-19 or workers’ comp as an exclusive remedy is being tested in the courts.

In the first case, See’s Candies, Inc. et al. v. Superior Court of Los Angeles County , California’s Second Appellate District court will decide whether the workers’ comp exclusive remedy would prevent a lawsuit from a See’s Candies employee who alleges that the candy makers’ failure to implement sufficient safety protocols caused her to contract the virus, leading to her husband’s eventual death from COVID-19 .

A similar decision was reached this August in the case Ingino-Cacchioli v. Infinity Consulting Sols . In this case, the Superior Court of Delaware ruled that a surviving spouse of an employee who contracted COVID-19 while at work needs to file a workers’ comp claim before filing a tort suit against the employer.

The court has put off reaching a decision on this case until the state’s ​​Industrial Accident Board determines whether the employee contracted COVID-19 at work.

The other two cases NCCI highlighted consider whether or not COVID-19 is compensable.

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

The commission noted that the nurse failed to present medical records or other evidence that her positive COVID-19 diagnosis was the result of an exposure in the workplace.

Talavera v. Bob’s Super Saver, Inc. examines a knottier issue. In this case, an injured worker sued for workers’ comp benefits, after contracting the virus during a physical therapy appointment for a previous injury.

The Kansas Workers Compensation Appeals Board ruled that in this case treatments were compensable as the exposure during PT was analogous to a new injury resulting from medical malpractice, which would be covered. 2) Exclusive Remedy Cases

NCCI noted that employers “remain interested in cases addressing challenges to the constitutionality and scope of 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 cases in Pennsylvania, South Carolina and Idaho found that the exclusive remedy provision did not apply to various employers, but for differing reasons.In Pennsylvania’s case, the state Superior Court handed down a decision favoring the employee […]

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