Tripping Over Your Dog!
ReEmployAbility’s ReAudio Podcast host Todd Loomis meets with Ya’Sheaka Williams, workers’ compensation attorney and good friend of ReAudio, to discuss what’s new in workers’ compensation from a legal standpoint. Ya’Sheaka Williams is a board-certified lawyer in Florida and in workers’ compensation. As a partner of Eraclides Gelman, Ya’Sheaka manages the Tampa office and has nearly 15 years of experience in the field. Ya’Sheaka has become a valuable resource to the ReAudio Podcast audience with her intense focus on the injured worker in her practice. In ReAudio Podcast episode 31, “Tripping On Your Dog!” Todd and Ya’Sheaka discuss the importance of maintaining a humanizing mindset within the industry, leveraging Ya’Sheaka’s great legal perspective for both the employer and the injured worker.
Listen to the entire podcast here!
Effects of the COVID-19 Virus on Worker’s Compensation
The new year brought questions and concerns for the industry, as the effects of the COVID-19 virus have proven unpredictable; staying up to date with what is new under the workers’ compensation umbrella is essential. Ya’Sheaka was asked, “What are most important legal issues facing workers’ compensation as we move into the new year?”
She responded, “Right now, with workers’ comp, I’m still seeing COVID cases and the issue of the arising out of. In workers’ compensation, the accident has to arise out of and during the course and scope of your employment. The arising out of really became a bigger issue in the last couple of years. This was an injured worker who suffered, who worked from home, who had an accident when she tripped over her dog while getting coffee on a break.
Now, if that had happened in the office, then her tripping over something in the office would’ve made her claim compensable. She tripped at home on her dog, and that dog was not related at all to her employment. Her having the dog, or tripping over the dog, was not connected at all to the employment. What we’re finding now is that I’m seeing more and more cases where employee carriers are raising that defense that you may have been at work, but if you can’t connect the cause of your accident to your employment, we’re going to deny your claim. I think we’re going to see a lot more of those types of denials coming up.”
Changes in Worker’s Compensation
Why might that be more of an issue now than a year ago, or why is it important to look out for situations like the one described as the year develops? Ya’Sheaka can attest that “we’ve seen more cases where that defense has been raised, and it’s been raised successfully. When you see a defense that’s been raised successfully… You have a case. It goes to the First DCA. The First DCA makes a ruling, and then it gives us some guidance as to how we practice, how our defenses work, and what types of evidence we need. When you see lower court decisions applying that first DCA case, that’s only a few years old, that’s telling you, ‘Okay. We feel comfortable based on this decision and the facts that we have, that we are going to continue to deny cases using the same defense,’ and they’re successful in those denials.”
If that is the case based on Ya’Sheaka’s statement, it is easy to infer that employers and carriers may take a more stringent look at those work accidents when there’s cause for speculation. Without having a concrete reason for how and why an accident may have occurred, the injured employee would still have to prove a connection between the accident and the employment. Even though this case was made before the COVID-19 pandemic, it can still be applied post-COVID because many employers now allow employees a more flexible remote-work option or hybrid-type working environments. As remote work accidents occur more frequently, employers must adjust and revise specific procedures regarding their workers’ compensation policies.
Preventative Measures in Worker’s Compensation Claims
Podcast Host, Todd Loomis, then asked: “Is there anything that you can see an employer should be aware of to try to prevent this type of thing from happening down the road?” Ya’Sheaka provided her suggestions to employers with remote or hybrid employees by stating, “I would say if you are allowing your employee to work from home, you should have some really well thought out rules as to workspace, pets, household chores. They would need those types of parameters to ensure, as best you can, that the workspace is isolated simply for work and that they’re not working in their kitchen. In some instances, that’s your situation because you don’t have an office. You don’t have an extra bedroom that you can turn into an office; you’re working from home, and you’re making the best of it based on what you have. That really is some people’s reality.
What can you say to that if the employer is not allowing you to come back to work? They’re keeping you at home. You have no choice, so you must, I think, be clear about work supplies and what type of chair is being used. What type of desk are you using, and whether it is ergonomic? All those things kind of play into potential injuries that may arise that you don’t think of at work because your workspace, typically at the office, is ergonomic. You have a good chair, and if you don’t, you can request another chair. You can request a standing desk or have your screen elevated. There are things that you do naturally at work that you really would not be able to do at home.” The inability of an employer to control an employee’s work environment at home creates gray areas, opening the door for employee injuries while working.
How COVID-19 Effects Worker’s Compensation Claims
COVID-19 cases have not gone away even three years since the start of the pandemic, and it remains a significant topic among ReEmployAbility team members, their clients (employers and adjusters), and our nonprofit partners. So, what is to come in the “COVID world”? Ya’Sheaka claims, “I still foresee people being exposed to COVID. You have some employers who have a vaccine mandate and some employers who do not. With or without a vaccine mandate, some people are still being exposed. And some people are still sick. The question still is, where were you exposed to COVID… Did it happen at work, or did it happen at home? Or when you were at church or when you were at Publix? Or when you went to the restaurant?” That is a great point when considering how that may affect your ability to work.
Fortunately, the workers’ compensation industry’s exposure standard is very high. It requires that the person has to prove that they were exposed to a substance, whether it was at work, how much substance they were exposed to, and that the amount of exposure would result in the injury that person sustained.
With many parameters to consider, it proposes, “How do you know you were exposed at work and whether that exposure caused your illness?” It would be unlikely for someone to determine the place and time of their COVID-19 exposure unless that person was, or is, in the constant company of someone in the medical field who has great experience handling and testing COVID-19 symptoms.
What if an Employee Contracts COVID-19 at Work?
With several of Ya’Sheaka’s clients within the medical care industry, she claimed to have not experienced increased claims relating directly to COVID-19. Employers within those fields are under the presumption that with employees who work closely with COVID-19 patients, there is a higher rate than they would have contracted the virus from their place of employment and would not fall under her jurisdiction of claims. She has attested that her involvement in a case related to COVID-19 would be necessary “where someone has contracted COVID, and there’s been a denial of the compensability because there’s no proof, or there’s no indication, of where this person contracted the disease.” Every state has its legislation regarding workers’ compensation policies and COVID-19-related incidents. Ya’Sheaka’s perspective on worker’s compensation policies and procedures is founded on her practice in Florida.
“Are there other states that you’re aware of where people in that state should probably look for more information because that proof of burden isn’t quite where it is in Florida?”
Ya’Sheaka describes California as a low-burden state and continues by stating “that most people who are claiming exposure at work, their cases are being found to be compensable. If you’re in California, I would say Texas, those two states, and I would probably say even Georgia, you want to look at how those specific states are handling it. For instance, in Florida, we have a presumption that the governor entered right when COVID first hit. That presumption is for your first responders and your medical professionals. Some other states may have done that, as well, so I would start there with any presumptions that have been granted or provided by the governors in those states. Then kind of work your way down into your exposure standards.” As things are beginning to open around the country, many people wonder if they should still adhere to CDC guidelines for safety in and outside the workplace. If you have any questions or concerns relating to COVID-19 exposure, we recommend contacting your Human Resources Director or your employment law attorney.
Handling Potential Vaccination Reactions
When a person or an employer wants to learn more about the impact of requiring the vaccine for their employees, we recommend that they refer to their respective state’s case law that clarifies the risks and procedures to follow if a person has a medical reaction to their vaccination.
The employer may then be responsible for their employees’ reaction to the vaccination. If so, it would be a compensable condition. Certain people have recorded varying degrees of post-vaccination reactions. In this case, Ya’Sheaka suggests to “maybe consider if the person’s getting vaccinated, that you give them the day after off, paid. That way, they’re able to rest and recuperate at home.” If someone claims they have been exposed to the virus in the office, she suggests they follow the CDC guidelines. By following the guidelines as required, you can genuinely ensure that you and your employees are protected and encourage the protection of others.
Click here to learn more about Ya’Sheaka Williams!