H&L Quarterly – April 2020

01 Apr H&L Quarterly – April 2020

What’s Open?

In order to answer some common questions about what businesses can stay open during the current quarantine, the State of Michigan has created a web page to help everyone understand what employers and industries are considered critical, and will thus be allowed to continue operating. With regard to legal proceedings, trial courts in the state of Michigan have been permitted to perform only “essential functions”. While this is a somewhat vague term, an executive order from Governor Whitmer has allowed administrative courts in Michigan, including the Workers Compensation agencies, to engage in telephonic or remote hearings. Currently, we believe that Workers Compensation magistrates are willing to conduct such telephonic hearings if a case is being settled, or if absolutely necessary, if trial proceedings need to occur.

As it relates to more common place interactions, Workers Compensation magistrates Chris Slater, Lisa Woons, Robert Timmons, and David DeGraw have agreed to engage in hearings to update the court and the parties on other cases that are not imminently being settled or tried, but by appointment only. Additionally, the Michigan Court of Appeals and the Michigan Supreme Court have both taken action to ensure that parties involved in litigation will not face any filing deadlines during this coronavirus shutdown. On March 26, 2020, an order from the Michigan Supreme Court indicated that all filing deadlines for these two courts would be suspended indefinitely, essentially putting all proceedings in those courts on hold until further notice. By way of contrast, the Workers Compensation system has not suspended its filing deadlines, so any time-sensitive actions or activities need to be accomplished as normal.

The list of critical business can be found at: https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98737—,00.html.

The Michigan Supreme Court order suspending filing deadlines can be found at: https://files.constantcontact.com/1975dc25701/c57e1bc7-7040-4dc4-896f-ac546de39545.pdf

Governor Whitmer’s order allowing remote administrative hearings can be found here: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523024–,00.html

Submitted by Jonathan Rea

 Workers’ Comp Rolls On
In late February, the Michigan Court of Appeals (COA) not only got involved in a Workers Compensation case, but made a ruling that will have important precedential value. In a soon-to-be-published decision in Smith v. Chrysler Grp., the COA held that the Michigan Compensation Appellate Commission (MCAC) erred by denying plaintiff-employee workers’ compensation benefits. Plaintiff sought benefits for injuries he sustained in a car accident that occurred while he was traveling from his home to one of defendant’s plants to conduct an audit. Defendant argued plaintiff was merely injured while traveling to work, which is not compensable under the Workers Disability Compensation Act. At trial, the magistrate found that plaintiff’s injuries arose out of and in the course of his employment with defendant. The MCAC reversed, “finding that plaintiff did not establish three of the four exceptions identified in” the case of Stark v. L.E. Myers Co., 58 Mich. App. 439 (1975).

As in the past, the MCAC believed that the Stark case was the controlling, precedential case law it needed to follow. However, the COA agreed with plaintiff, and stated that, in their opinion, “developed caselaw now recognizes six exceptions, as set forth in Bowman… “, which is a completely separate decision from Stark. Therefore, the COA’s decision was an endorsement that the framework provided in Bowman v. R.L. Coolsaet Constr. Co., 275 Mich. App. 188 (2007) was in fact the case law precedent that needed to be followed when deciding cases based on the issue of injuries occurring on the way to, or coming home from, work. The COA next examined the six exceptions found in Bowman and held that two of the exceptions were directly applicable to plaintiff, specifically that he was injured while on a special mission for defendant and defendant paid for his travel mileage when he travelled to perform his work. Based on the satisfaction of these two exceptions, the COA held that a sufficient nexus existed ‘”between the employment and the injury such that the injury was a circumstance of the employment’ rather than a mere commute to work.” Most importantly, the COA indicated that of the six factors found in Bowman, any single one can be sufficient on its own to create a nexus between a plaintiff’s employment and the alleged injury.

Submitted by Jonathan Rea

LEO Reaches Out
Michigan’s Department of Labor & Economic Opportunity (LEO) has been very effective in providing information to its constituents regarding the rapidly changing circumstances surrounding employment issues, as well as what rights employers and employees have at this time. While all of this information is important, there are some especially notable things to remember regarding unemployment assistance and the termination of employees:

Unemployment
A recent order from Governor Whitmer has significantly expanded the entitlement to unemployment benefits to include sick workers (who are quarantined or immunocompromised and who do not have access to paid family and medical leave), workers caring for loved ones (such as those who have an unanticipated family care responsibility, including childcare responsibilities due to school closures, or those who are forced to care for loved ones), and first responders (who work in the public health community and become ill or are quarantined due to exposure to COVID-19). Additionally, the governor’s order also extends to unemployment benefits from a total of 20 weeks to a total of 26 weeks, extends the eligibility application period from 14 days to 28 days, and suspended the requirement that applicants register in person and look for work.   

As always, those unemployment benefits can be coordinated with any weekly worker’s compensation benefit paid.  The Federal government is also granting an extension as it relates to the payment of unemployment.  In the past, the Michigan Compensation Appellate Commission held employers could coordinate those payments as well. We are of the opinion any current amount paid by the Federal unemployment extension to employees can be coordinated.  

Terminating Workers
LEO issued guidance specifically indicating that “Due to the uncertainty regarding potential congressional action on how furloughed workers will be able to access federal resources, employers are strongly urged to place employees on temporary leave as opposed to termination.” In order to assist with the practical concerns regarding this guidance, LEO recommended that employers specify the employee is on temporary/indefinite leave with return to work expected that is within 120 days, that employers do not create a contractual obligation to bring the employee back to work, that employers  provide the employee with a formal Unemployment Compensation Notice, and that employers ensure employees are provided information on how to obtain unemployment insurance benefits.  

Below is a reproduction of a press release from LEO that was sent out on March 23, 2020:

For Workers  Fling for Unemployment Benefits Eligible employees are strongly encouraged to apply for unemployment benefits online at Michigan.gov/UIA or by calling 866-500-0017. A factsheet on how to apply for benefits can also be found online. Governor Whitmer’s Executive Order 2020-10 expands unemployment benefits to: Sick Workers: Workers who are sick, quarantined, or immunocompromised and who do not have access to paid family and medical leave or are laid off. Workers Caring for Loved Ones: Workers who have an unanticipated family care responsibility, including those who have childcare responsibilities due to school closures, or those who are forced to care for loved ones who become ill and who do not have access to paid family and medical leave or are laid offFirst responders: Individuals working in the public health community who become ill or are quarantined due to exposure to COVID-19 and who do not have access to paid family and medical leave or are laid off.The governor’s order also extends access to benefits for unemployed workers:Increased Weeks: Benefits will be increased from 20 to 26 weeks. Longer Application Time: The application eligibility period will be increased from 14 to 28 days. Fewer Requirements: The in-person registration and work search requirements will be suspended.  Visit the Unemployment Insurance Agency website for:  Unemployment Resources for Employees Employee Frequently Asked Questions Self-Employed Workers The State is also seeking solutions for self-employed workers and independent contractors who traditionally do not have access to unemployment insurance. The governor has requested that President Trump issue a Major Disaster Declaration so that Individual Assistance and Disaster Unemployment Assistance through FEMA may be made available to additional Michiganders affected by the COVID-19 pandemic.

Employers Work Share Employers are encouraged to implement the State’s Work Share program that permits employers who may be facing maintain business operations during declines in regular activity instead of laying off workers. The program allows employers to keep their employees working with reduced hours, while employees collect partial unemployment benefits to make up a portion of the lost wages. More information about Work Share is available online at www.michigan.gov/WorkShare. Visit the Unemployment Insurance Agency website for:  Unemployment Resources for Employers Employer Frequently Asked Questions Unpaid Leave vs. Termination Due to the uncertainty regarding potential congressional action regarding whether furloughed workers will be able to access federal resources, employers are urged to place employees on temporary leave as opposed to termination. View the State’s guidance for employers contemplating potential layoffs. Capital Resources for Employers Business Call Centers The MEDC’s call center stands ready to support businesses with questions about assistance available to small business through existing state programs by calling 888.522.0103. The Michigan Small Business Development Center can also provide resources at https://sbdcmichigan.org/small-business-covid19/.    Small Business Association Loans The U.S. Small Business Administration (SBA) approved the governor’s request for a statewide Economic Injury Disaster Loan (EIDL) declaration, opening the opportunity to small businesses to access low-interest loans from the SBA.       Michigan small businesses, small agricultural cooperatives, and nonprofits that have suffered substantial economic losses as a result of the COVID-19 outbreak can now apply for low-interest loans as part of $1 billion in funding. The application for disaster loan assistance is available at: disasterloan.sba.gov/ela/. Michigan Small Business Relief Program The Michigan Strategic Fund approved the Michigan Small Business Relief Program which authorizes the MEDC provide up to $20 million in support for small businesses. The funding is divided between $10 million in small business grants and $10 million in small business loans to support businesses facing drastic reductions in cash flow and the continued support of their workforce. The $10 million in grant funding will be provided to local or nonprofit economic development organizations throughout the state to provide grants up to $10,000 each to support certain small businesses that have realized a significant financial hardship as a result of the COVID-19 virus. For more information visit, michiganbusiness.org/covid19 Tax Assistance for Small Businesses The Michigan Treasury Department is providing small businesses that have experienced disrupted operations due to the COVID-19 additional time to make their sales, use and withholding tax monthly payment. Small businesses scheduled to make these payments on March 20 can postpone filing and payment requirements until April 20. Penalties and interest penalties will be waived for 30 days. Learn more about penalties and interest online or by calling the Treasury Business Tax Call Center at 517-636-6925. Updates Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.   The above resources and more can be found on the Michigan Coronavirus website, under Employer and Employee resources.

The online webpage including this announcement can be found at: https://content.govdelivery.com/accounts/MILEO/bulletins/283ba0e

Submitted by Jonathan Rea and Michael Smith

Further Unemployment Expansion
Shortly after the Michigan Department of Labor and Economic Opportunity issued the above information, they further expanded the eligibility of different types of workers to receive unemployment benefits. Governor Whitmer’s most recent order on the issue indicated:

Governor Whitmer today has announced new programs for workers affected by COVID-19. The governor, under the federal CARES Act, signed an agreement between Michigan and the U.S. Dept. of Labor to implement Pandemic Unemployment Assistance and Compensation programs that grant benefits to workers who do not already qualify for state unemployment benefits. Workers include self-employed, 1099-independent contractors, gig, and low-wage workers who can no longer work because of the pandemic. The agreement also increases weekly benefits for all unemployed workers by $600 a week and extends benefit payments from 26 to 39 weeks. If someone has already applied for unemployment benefits, you DO NOT need to reapply at this time.

 The online webpage including this announcement can be found at:https://content.govdelivery.com/accounts/MILEO/bulletins/283ba0e

Submitted by Jonathan Rea

New Emergency Rules Regarding First Responders
On March 30, 2020, Governor Whitmer and the Worker’s Disability Compensation Agency issued new Emergency Rules in response to the Covid-19 pandemic.  These new rules went into effect on March 30, 2020 and remain in effect for 6 months.  These new Emergency Rules supersede the prior rules filed on March 18, 2020.  The New Emergency Rules read as follows:

Rule 1. Injuries to first response employees.
Unless proven otherwise, a first response employee suffers a personal injury that arises out of and in the course of employment if the first response employee is diagnosed with CO VID-19, whether by a physician or as a result of a test. Denial of a claim by a first response employee diagnosed with COVID-19 violates the worker’s disability compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941, and is subject to the penalties provided by section 631 of the worker’s disability compensation act of 1969, 1969 PA 317, MCL 418.631, unless the denial is based on specific facts demonstrating that the first response employee was not exposed to COVID-19 at work.

Rule 2. Definition.
(1) As used in these rules, “first response employee” means any of the following:
(a) A person working in ambulance operations and advanced mobile emergency care services, county medical care facilities, emergency services, emergency medical services, homes for the aged, hospices, hospitals, or nursing homes.
(b) A person working in a home health agency or visiting nurse association.
(c) Any person working as a physician, physician assistant, nurse, emergency medical technician, paramedic, or respiratory therapist.
(d) Any police officers, fire fighters, emergency medical technicians, on-call members of a fire department, volunteer civil defense workers, on-call members of a life support agency, or members of an emergency rescue team, as those terms are used in the worker’s disability compensation act of 1969, I 969 PA 317, MCL 418. I 01 to 418.94 l.
(e) A member of the state police or an officer of the motor carrier enforcement division of the department of the state police.
(f) A state correctional officer or local corrections officer.

Rule 3. Application of other rules.
These emergency rules supersede the entirety of the emergency rules filed March 18, 2020.
 
As to Rule 1 the first change was the elimination of the “quarantine at the direction of the employer due to confirmed or suspected Covid 19 exposure” language.  Now a first response employee is considered to have a compensable personal injury if they are diagnosed with Covid 19 by a doctor or through the results of a test.

Rule 1 now contains the penalty language for denial of a claim where as before such language was set forth in Rule 2.  The new Emergency Rules still provides for penalties under Section 631 of the Worker’s Compensation Disability Act if there is a denial of a claim by a first response employee.  However,  if the denial is based on a showing of specific facts that the first response employee was not exposed to Covid 19 at work, no penalty should be applied.  Given this is a fact specific defense, it will have to be examined on a case by case basis.

As to Rule 2, the new Emergency Rules define with more specificity who is to be considered a first response employee.  The rule has also added state and local correction officers to the list.
The new Emergency Rules can be found at: https://www.michigan.gov/documents/lara/Workers_Disability_Compensation_Agency_COVID-19_First_Responder_ER_684245_7.pdf

Submitted by Michael Smith

Medical Care in the Midst of Coronavirus
Early yesterday, March 31, the director of the Michigan Workers’ Compensation Agency, Jack Nolish, issued a message about how carriers should be handling certain situations involving medical care needed by workers’ compensation plaintiffs. Below is the text of director Nolish’s message:

The coronavirus pandemic demands that health care providers and payers reconsider how care is delivered to reduce the risk of further spreading infection. It is vitally important for injured workers in Michigan to be able to receive health care services without visiting their provider in person. The urgent need to contain the spread of this new virus means we must act quickly to increase the availability and use of telemedicine services.

• The Workers’ Disability Compensation Agency (the Agency) expects carriers to provide increased access to health care services through telemedicine delivery platforms and to encourage patients to use telemedicine delivery options to limit the amount of in-person health care services they seek.
• Carriers are encouraged to work with providers to consider all options to provide an injured worker with appropriate and reasonable care, including telerehab options.
• When appropriate, the carrier is encouraged to modify its payment and coverage policies regarding telemedicine furnished by physical, occupational, and speech therapists in accord with their professional scope of practice, to ensure that patients continue to have access to the rehabilitative care they need amid the COVID-19 pandemic.

• If a carrier and provider determine telerehab is in the best interest of the injured worker, the Agency encourages reimbursement rates for telerehab services that mirror payment rates for an equivalent service provided in person or that providers and carriers quickly agree on reasonable reimbursement rates.
• The Agency notes that while the Health Care Services Rules prescribe a 3% late fee if a carrier does not reimburse the provider within 30 days of receipt of a properly submitted bill, it is advised that this penalty be waived during government imposed COVID-19 restrictions.

Since the restrictions on individual activity specified in Governor Whitmer’s executive order (EO 2020-20) may impact on an injured worker’s ability to attend scheduled medical appointments, including physical therapy or psychological services, during the effective period of the orders, and any future extensions, related additional orders or expansion:

• failure to attend such appointments should not adversely impact the injured workers entitlement to benefits.
• Simply stated, a claim should not be disputed for non-compliance with medical treatment.
• Other options to secure the appropriate level of reasonable treatment should be explored, including telemedicine.

On March 24, 2020, Agency Director Nolish sent a memo highlighting several points in Governor Whitmer’s Executive Orders, including the directive that Demands or threats made to injured workers relative to attending evaluations or conducting job searches may be considered a violation of the Executive Orders. The Agency’s position is that this also encompasses medical and psychological services as outlined above.

You can access a copy of the current health care services rules by clicking the following link: https://www.michigan.gov/documents/wca/HCS_Rules_643327_7.pdf

The rules provide billing and reimbursement directives for certain telemedicine procedure codes, including office visits, hospital visits, and psychotherapy visits with no restrictions on the originating site, which can be a private home:

• R418.10901 (4) A health care professional billing for telemedicine services shall only utilize procedure codes listed in Appendix P of the CPT codebook, as adopted by reference in R 418.10107, to describe services provided, excluding CPT codes 99241-99245 and 99251-99255. The provider shall append modifier -95 to the procedure code to indicate synchronous telemedicine services rendered via a real-time interactive audio and video telecommunications system with place of service code -02. All other applicable modifiers shall be appended in addition to modifier -95.

R418.101004 (14) When modifier -95 is used with a procedure code listed in Appendix P of the CPT codebook, as adopted by reference in R 418.10107, excluding CPT codes 99241-99245 and 99251-99255, the telemedicine services shall be reimbursed according to all of the following: (a) The carrier shall reimburse the procedure code at the non-facility maximum allowable payment, or the billed charge, whichever is less. (b) Supplies and costs for the telemedicine data collection, storage, or transmission shall not be unbundled and reimbursed separately. (c) Originating site facility fees shall not be separately reimbursed.