Virginia Adopts Uniform COVID Workplace Safety Rules

Virginia made history by becoming the first state to adopt coronavirus-related workplace safety mandates which establish requirements for employers to control, prevent, and mitigate the spread of the coronavirus (COVID-19).

In addition to mandating social distancing, the rules require all employers to:

  • Provide flexible sick-leave policies, telework and staggered shifts when feasible;
  • Provide both handwashing stations and hand sanitizer when feasible;
  • Assess risk levels of employers and suppliers before entry;
  • Notify the Virginia Department of Health of positive COVID-19 tests;
  • Notify VOSH of three or more positive COVID-19 tests within a two-week period;
  • Assess hazard levels of all job tasks;
  • Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
  • Prepare infectious disease preparedness and response plans within 60 days;
  • Post or present agency-prepared COVID-19 information to all employees; and
  • Maintain air handling systems in accordance with manufacturers’ instructions and the American National Standards Institute (ANSI) and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) standards.

Here is the link with the full text of the order:  https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf

Here is the link with all of the templates and forms to allow employers to comply with new regulations:  https://www.doli.virginia.gov/covid-19-outreach-education-and-training/

Maryland Department of Labor Releases Guidance on Employer Correspondence with Employees

The Maryland Department of Labor (hereinafter “MDOL”) recently released guidance regarding how employers should manage correspondence to an employee regarding the availability of unemployment compensation.

MDOL suggests that if an employer is sending a letter or email to an employee about the availability of unemployment compensation, the employer should first advise the employee that unemployment benefits are available to workers who are unemployed and meet the Maryland eligibility requirements. The employer should also explain the MDOL requirements to the employee, including any relevant COVID-19 updates. Additionally, the employer should provide the employee with the Maryland unemployment website and a list of possible documentation the employee will need to file an unemployment claim.

If the employer is sending a text message to an employee about the availability of unemployment compensation, MDOL suggests advising the employee that unemployment benefits are available to workers who are unemployed and provide the employee with the Maryland unemployment website.

To access the full MDOL guidance visit: https://www.dllr.state.md.us/forms/uiavailnotice.pdf

Maryland Workers’ Compensation Commission Responds to Coronavirus (COVID-19)

After closing its doors to in-person hearings on March 16, 2020, the Maryland Workers’ Compensation Commission has seen a backlog of cases.  On June 6, 2020, the Commission resumed in-person hearings while continuing to allow the option for virtual hearings, which began in May.  What can you expect from these hearings?

New Shared Requirements:

  • All exhibits must be electronically submitted three days prior to a hearing. Most Commissioners appear to have reviewed all exhibits before the proceedings, which may allow for a more streamlined hearing where the Commissioner likely has an idea of the basic facts of the dispute beforehand.
  • Claimant’s Counsel must also submit fee petitions electronically, which requires their client’s signatures before the hearing. We may see more delayed attorney’s fee awards as a result.
  • Impeachment evidence cannot be physically submitted but must be immediately available to all parties and may be formally submitted after the hearing.
  • Stipulations, settlements, withdrawn issues, or other preliminary matters can be emailed to the Commissioner’s assistant instead of taking up a hearing slot or requiring any physical attendance.

Virtual hearings:

  • These hearings are conducted through the Microsoft Teams software and require all parties have video, but those without audio capacity can call in using a telephone. Some Commissioners have set up the hearings so all parties may see everyone at the same time, while others have limited the screen so that all parties, other than the Commissioner, may see the Claimant only.
  • No one may force any claim into a virtual hearing as they require the consent of all parties to schedule.
  • There remain some questions as to how to use impeachment evidence with these hearings, which may make these virtual hearings less advisable for more complex claims.

In-person hearings are not yet back to business as usual: 

  • Each hearing is hand-set by the Commission to provide a time for each claim to proceed. You may not enter the hearing site until five to ten minutes before the scheduled time.
  • Each person is asked to fill out screening questionnaires, provide contact information for contact tracing, and have his/her temperature taken by contactless thermometer before entering the hearing room.
  • Each person must wear a mask and maintain social distancing of at least six feet. The hearing rooms have been spread apart to allow this distance, with the claimant sitting in a chair alone in the middle of the room.
  • Parties are encouraged to bring only those people absolutely necessary for a hearing to minimize the number of people in any room at one time.
  • After the hearing, all parties are required to immediately leave the premises. As a result, you will only see the people involved in the hearings immediately before and after your hearing, eliminating the ability to follow up on intractable cases in person.

Written by associate April Kerns.

 

Michael A. Washington v. Arena Football One and Travelers Indemnity Company: Attorney’s Fee Award

This matter was appealed to the Compensation Review Board on Reconsideration of an Award of Attorney’s Fee by Administrative Law Judge Donna J. Henderson.

The parties had attended an informal conference on permanent partial disability (PPD), and a recommendation on PPD was issued.  Claimant, Michael Washington, filed an Application for a Formal Hearing.  Employer, Arena Football One, then submitted a letter accepting the recommendation.

On March 5, 2020, after an evidentiary hearing was held, a Compensation Order was issued, awarding Claimant PPD benefits to his left leg as a result of a work injury sustained.  On April 2, 2020, Claimant filed a petition requesting an award of attorney’s fees against Employer in the amount of $3,480.95.  Employer filed an Opposition.  An ALJ subsequently awarded Claimant’s counsel attorney’s fees based upon the 4% difference between an earlier Recommendation issued and the Compensation Order.  On April 14, 2020, an Order on Reconsideration of Award of attorney fee was issued concluding that Employer had never been ordered to pay Claimant any percentage of permanent disability. Therefore, Employer could not be ordered to pay attorney’s fees.  Claimant appealed.

On appeal, Employer argued that it is not liable to pay Claimant an attorney’s fee of any amount, as it did not refuse to pay Claimant PPD benefits pursuant to the OWC recommendation.  Employer argued that Claimant filed an Application for Formal Hearing and that Employer later submitted a letter accepting the recommendation.  Therefore, it was Claimant who rejected the OWC recommendation.  Further, Employer argues that D.C. Code § 32-1530 (b) is specific in setting forth the requisite conditions for a claimant to recover attorney’s fees: the employer must refuse to pay compensation for a claimant to be awarded attorney’s fees and it denies such fees when the condition is not met.

Claimant argued that because Employer did not pay any PPD benefits despite the recommendation made by the Office of Workers’ Compensation (OWC), Employer de facto refused the recommendation offered by OWC.

The CRB affirmed the April 14, 2020 Order on Reconsideration of Award of Attorney Fee.  The CRB noted that in Providence Hosp. v. DOES, 855 A.2d 1108, 1111 (D.C. 2004), the District of Columbia Court of Appeals stated that “[t]he statute clearly did not apply because [the employer] never rejected the mayor’s recommendation” and thus, the claimant could not recover attorney’s fees.  Id. at 1113.  Further, the District of Columbia Court of Appeals concluded that the statute is specific in setting forth the requisite conditions for Claimant to recover attorney’s fees and leaves no discretion to the agency or court.  Here, neither party argues that Employer formally rejected the recommendation prior to Claimant’s rejection of the Memorandum of the Informal Conference.  Further, when Claimant filed an Application for a Formal Hearing, any subsequent acceptance or failure to reject by Employer is irrelevant. The April 14, 2020 Order on Reconsideration of Award of Attorney Fee was affirmed.

The practical effect of this decision is that there are no de facto rejections.  An employer must expressly reject the recommendation in order for  Claimant to be eligible for attorney’s fees.

Written by associate Marleigh Davis.

New Code Section Changes Employer Response Obligation under the VA Workers’ Comp Act

In its February 2020 session, Virginia’s General Assembly made a change to the Virginia Workers’ Compensation Act. The following briefly summarizes the new amendment:

Under the new section 65.2-601.2, the employer will be required to provide a statement of intent in response to an employee’s claim within 30 days. When a claim is filed, the Commission will now order the employer, within 30 days of such order, to advise the employee whether the employer intends to (i) accept the employee’s claim, (ii) deny the employee’s claim, or (iii) if the employer lacks sufficient information from the employee or a third party to be able to accept or deny the claim.

If the employer intends to deny the claim, the response shall provide reasons for the denial, and if the employer is unable to accept or deny because of lack of sufficient information, the employer must identify the information needed from the employee or a third party to enable it to make such a determination.

Failure to make a timely response could result in a penalty.

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FMC Investigation into Demurrage and Detention Charges

An increase in frequency of detention and demurrage charges assessed against port users across the country recently resulted in a Federal Maritime Commission (“FMC”) investigation into the detention and demurrage practices at U.S. ports.  The spike in detention and demurrage charges appears to be the result of factors outside of the control of port users, including increased port congestion and internal port inefficiencies. The increased congestion at ports has led to increased commercial driver turn times, decreased productivity and efficiency, an inability to retrieve an adequate number of containers, and has compounded the already pervasive issue of the commercial driver shortage for drayage motor carriers due to mounting driver frustration.

In September 2018, the FMC commissioner issued an interim report and Notice of Proposed Rule Making for “just and reasonable regulations and practices relating to or connected with receiving, handling, storing, and delivery of property.” The focus of the FMC investigation was to closely examine port practices that are leading to substantial detention and demurrage charges to port users and to provide solutions to move cargo more efficiently through the ports. The interim report revealed that there are differing, often conflicting, standards from port to port with respect to many demurrage and detention practices and recognized the need for uniform standards and transparency.

In December 2018, the FMC commissioner issued a final report on the investigation. The final report concluded that there was a need for greater transparency and consistency in notice, billing practices, dispute resolution and terminology in the ports’ detention and demurrage practices. The final report therefore recommended that the FMC create “Innovation Teams” to establish ways to standardize port practices. The FMC is in the process of reviewing the recommendations of the final report and will either accept or reject the recommendations.

While the standardization of demurrage and detention practices would be a step in the right direction, the underlying port inefficiencies must be addressed in order to combat the growing concerns in the intermodal industry.

For more information about this article, please contact Renee Bowen at 410.230.3943 or rbowen@fandpnet.com.

 

 

Changes at the Maryland Workers’ Compensation Commission

Commissioner Godwin Retires

Commissioner Lauren Godwin, who served in her position since 1996, has retired from the Maryland Workers’ Compensation Commission effective July 1, 2019.

Welcoming Commissioner Oh

Effective July 1, 2019, Governor Hogan appointed Ju (Lynn) Y. Oh as a commissioner for the Maryland Workers’ Compensation Commission.

Ms. Oh received her Juris Doctor from the University of Baltimore School of Law in 2004.

Following law school, Ms. Oh served as a Judicial Law Clerk to the Honorable Thomas F. Stansfield from 2005 to 2006.  She then joined the law office of Humphreys, McLaughlin & McAleer, LLC as an Associate in 2006.  Ms. Oh became a partner at that firm in 2012, where she represented employers and insurers leading up to her Commission appointment.

Workers’ Comp Team Spotlight – Natalie Johnson and Mark Wright

Natalie Johnson attended college at American University where she majored in International Studies in the honors division. She also minored in French Language & Literature and took several courses in Art History. She graduated in 2007.

Following her early career in the banking industry, Natalie pursued her interest in the legal field and began working as a paralegal for an insurance defense firm in Baltimore, Maryland. Her work consisted of both workers’ compensation and liability defense. She continued with this firm for two years before joining Franklin & Prokopik as a workers’ compensation paralegal.

While working at F&P as a paralegal, Natalie attended the University of Maryland School of Law.  During this time, she served as the Honor Board representative for the evening division of her law school and served as a research assistant for one of her professors, where she primarily focused on family law research.

After graduating from law school in August 2017, Natalie left F&P temporarily to complete a judicial clerkship with Family Magistrate Theresa A. Furnari in the Circuit Court for Baltimore City. She served as a law clerk for Magistrate Furnari from August 2017 through August 2018. She returned to F&P as an associate attorney in September of 2018.

Natalie’s practice is focused in the area of Maryland workers’ compensation defense. She is also a certified mediator and has a certification to serve as a Child In Need of Assistance (C.I.N.A.) attorney.

When Natalie is not working, she enjoys gardening, reading, and playing video games. She maintains a garden at home that has vegetables, herbs, and flowers. She also has several plants in her office that she cares for. When not pursuing her hobbies, Natalie loves spending time with her husband Ben, who is a Professor of Computer Science at UMBC, their two cats Tybalt and Jules, their dog Charlie, and their fresh-water fish.

Mark Wright is a paralegal at F&P, focusing in the area of Maryland workers’ compensation defense.  He began working for the firm in a support staff position in October of 2016.  While in this position he performed administrative duties, front desk work, mail room work, and stocking.  By January 2017, Mark was promoted to his current position.

Mark attended Stevenson University and majored in criminal justice with a minor in theatre. He graduated in 2016 with a bachelor’s degree. While in school, Mark was part of an improv group named “Hot Sauce Sandwich” from 2015 through 2016.

After graduating, Mark secured a temporary position with the Maryland Volunteer Lawyers Service. While working for this organization, he performed record-keeping duties, client management, and gathered contact information for various contributors and sponsors to provide regular updates to interested parties.

Mark likes the investigative aspect of his work and enjoys identifying inconsistencies in claimants’ statements. He also enjoys assisting the attorneys in formulating defense plans for each case.

Mark enjoys watching movies, reading books and comic books, and attending plays and improv shows. He is also taking classes to learn Spanish.

 

F&P on the Road

Distracted Driving and Nuclear Verdicts

The trucking industry has experienced an increase in nuclear jury verdicts since January 2017.  In fact, in the last year, we have seen the two largest jury verdicts ever awarded in the trucking industry.  Large awards are typically attributable to a jury’s desire to send a message or punish carriers and drivers for specific acts.  In other words, in trials that result in massive civil judgments, awards for punitive damages, if sought, far exceed awards for compensatory damages.  As it turns out, the reason for this trend may be rather simple; with an increase in commercial vehicle accidents involving a distracted driving component, the transportation industry has seen an increase in nuclear verdicts.

There are three classifications of distracted driving: visual, physical, and cognitive.  Visual distractions include mobile devices and texting, GPS devices or maps, and even scenic and external distractions.  Mobile devices and texting are also types of physical distractions, based on the requirement that drivers must take their hands off of the wheel to operate them.  Other physical distractions include smoking and reaching for something in a vehicle.  Conversely, cognitive distractions take driver’s minds away from the road.  Loud music, conversation, and stress or fatigue are examples of cognitive distractions.  Driving under the influence of alcohol or drugs combines all three classifications of distracted driving.

In April 2018, a Valparaiso, Indiana jury awarded a motorist $16.5 million for injuries sustained when a tractor-trailer rear-ended a passenger vehicle while it was stopped at a red light in the case of Binkowski v. Grand Island Express. At trial, the defense conceded the truck’s operator was solely responsible for the accident.  In fact, it was determined that the truck driver was text messaging on his cellular phone, which, the driver testified, took his eyes and attention off the road.  Despite testimony from the plaintiff’s employer that the plaintiff’s job performance, which included the operation of a forklift, had not been impacted by the accident, the jury jumped at the opportunity to punish the trucking company.  Whether the trucking company failed to institute preventative policies or adequately train its drivers, its perceived recklessness and inattention struck a chord with the jury – actual, compensable injuries notwithstanding.  Of the ultimate award in this case, $7 million was awarded in punitive damages.

In July 2018, a jury in Upshur County, Texas awarded $101 million to a man who was injured in a rear-end accident by a distracted driver operating a tractor-trailer.  In Patterson v. FTSI, LLC. et al., the plaintiff sustained only soft-tissue injuries and eventually had back surgery, but the ultimate award was not based on the severity of the plaintiff’s injuries.  Rather, $75 million of the verdict was in punitive damages.  Over the course of the trial, it was discovered that the tractor-trailer driver was under the influence of marijuana and methamphetamine at the time of the accident.  Though the operator’s actions themselves were reprehensible, the jury took exception to the actions, or inaction, of the operator’s employer, also a defendant in the case and a large hydraulic provider in the fracking industry.  The operator’s employer was found to have fabricated the driver’s former drug test results and credited him for training he never completed.  The employer had internal policies which, if enforced, would have removed the truck’s operator from the road prior to the accident.  It seems this one procedural miscue drove the jury’s deliberation, but the underlying cause of the accident was distracted driving.

In November 2018, a second jury in Upshur County, Texas awarded $260 million to the family of a deceased motorist who was killed after colliding with the side of a tractor-trailer that was blocking all four lanes of a highway in the case of McPherson v. Jefferson Trucking.  Much like the two cases addressed above, there were aggravating factors that contributed to the jury’s award.  The tractor-trailer driver had been operating his vehicle for approximately 17 hours at the time of the accident, which violated the hours of service regulations.  Therefore, fatigue was a likely factor in the accident.  In addition, the decedent’s family was successful in showing that the driver had a history of reckless driving, likely leading to an increase in the award.

Nuclear verdicts are trending up.  As noted, there seems to be a common thread between them.  That is, there exists some act leading to distracted driving, whether visual, physical, or cognitive, and an element of preventability and accountability on behalf of the carriers and trucking companies.  There is no dispute that distracted driving significantly increases the likelihood of catastrophic accidents. The recent nuclear verdicts in cases involving commercial vehicle accidents with a distracted driving component, make clear that juries will hold not just the driver accountable, but the motor carrier accountable as well for the safety of the public on the roadways.

For more information about this article, please contact Patrick Toohey at 410.230.1085 or ptoohey@fandpnet.com.