Originally published on PC360 | May 7, 2020
Since starting the Out Front Ideas COVID-19 Briefing Webinar Series just a couple of weeks ago, we have been receiving questions regarding COVID-19 and how it is changing the landscape of workers’ compensation. With daily changes in regulations occurring across the country, we wanted to answer the most pertinent questions affecting how we handle claims moving forward.
Three industry experts — Max Koonce, chief claims officer, Sedgwick; Nina McIlree, vice president medical management, Zurich North America; and Thomas Robinson, co-author, “Larson’s Workers’ Compensation Law” — joined us for our special edition Out Front Ideas COVID-19 Briefing Webinar Series to answer audience questions regarding the impact of COVID-19 on workers’ compensation. What does the term presumption refer to in workers’ compensation law?
Presumptions are mechanisms in workers’ compensation law used to switch the burden of proof in claims. Instead of the injured worker needing to prove the injury occurred in the course and scope of their employment, these presumptions state that the illness or injury is presumed to have occurred while on the job. Some presumption laws were already in place, but mainly applied to firefighters and first responders that filed claims related to heart and lung diseases, and sometimes cancer where exposure could have occurred on the job. In the instance of COVID-19, presumptions are changing on a state-by-state basis. Several states, through either legislation or executive orders, have enacted presumptions relating to COVID-19 occurring in first responders and health care workers. Illinois has embraced a presumption that covers all essential business employees who could be at risk of exposure, and other states are looking at similar legislation.
How do these presumptions define health care workers?
A big problem with these presumptions orders is that they are often vague. Some define health care workers as those on the frontlines treating infected patients. While other orders simply refer to “health care workers” and could apply to a wide variety of people employed in the health care system who may have no exposures to patients. Unfortunately, this lack of definition in new statutes is confusing. Are presumptions rebuttable? Is it difficult for an employer to prove that an employee contracted COVID-19 somewhere other than the workplace?
While not impossible, it will be challenging, especially since the goal of presumption laws is to shift the burden of proof to the employer. However, if a fact finder can prove that exposure to the virus came from someone else (e.g., someone was showing symptoms in their household), the employer may be able to file a rebuttal.
How does the industry handle new COVID-19 claims?
At the foundation of workers’ compensation, we determine each claim based on the merit of each case. That said, are legislative changes in presumptions necessary for cases like health care employees that have faced exposure to multiple patients with the virus? Health care workers are typically at higher risk anyway, so we already see a higher frequency of claims from their industry.
The current crisis also changes the investigative process for claims examiners. Their process has become much more detailed for COVID-19 claims, including contact tracing and testing to prove positives. In all presumptions, there is more entitlement for specific groups of employees, which creates inequity in claims, when other employees may be just at as much at risk.
Are the testing and quarantining periods covered within a workers’ compensation claim?
This coverage varies by jurisdiction, but some have required this to be covered under workers’ compensation. Some jurisdictions require the testing and quarantine to be covered under workers’ compensation, even if the employee ultimately is shown not to have COVID-19.
What industries are filing COVID-19 claims?
Health care represents the highest percentage of claims, including food service within the health care industry. Public entities are also seeing a large number of claims due to first responders. Combined, these industries cover about 65-70% of COVID-19 claims. The rest of the claims are coming from essential industries, like grocery stores, where employees cannot practice shelter in place or social distancing. There were also a few early exposure claims from the transportation industry, like airlines, but with travel regulations in place, those have now almost entirely dropped off.
What is an employer’s liability claim?
When workers’ compensation was initially crafted, employees gave up their right to civil litigation for workplace injuries in exchange for guaranteed no-fault benefits. Under this agreement, workers’ compensation is the “exclusive remedy” for employees who suffer a workplace injury. Employer’s liability is the potential exception to this exclusive remedy. Under very narrow circumstances, certain states allow an injured employee to pursue civil litigation, alleging that the actions of the employer created a situation where the injury was “substantially certain” to occur. In regards to COVID-19, there has been some litigation filed alleging the employer did not provide proper protective equipment and knew employees risked exposure.
If we release an injured worker for modified work, but work isn’t available because of current conditions, do examiners continue temporary transitional work (TTE)?
Since every state has its own workers’ compensation laws, the answer varies. Some states will insist that benefits be continued for a light-duty release even when an employer has no control over whether their business is currently operating due to current regulations. With a full-duty release, when many businesses are closed currently, the employee would collect unemployment in lieu of workers’ compensation benefits. Continuation of health care benefits for injured employees is the most crucial consideration currently, so we can encourage a return to work when businesses do reopen.
Is workers’ compensation litigation continuing given the current crisis?
State agencies are currently trying to manage litigation in a few different ways. Some states are utilizing virtual or telephonic processes to work through settlement hearings. Others are using an alternative notarization process, where you can see all members signing necessary documents. The remaining states are using limited staff to process documents needed for litigation to work through the process. There are state agency matrixes designed to inform clients and examiners what methods they are using and whether they are currently operating or not. There is a prioritization of resolutions currently since the public is facing so many uncertainties in their daily lives.
When does an employer need to report a claim involving COVID-19 to their carrier or claims administrator?
The best practice is always to report it as you would with any other work-related illness. If an employee says they have been exposed to the virus on the job and wants to file a claim, file it. Consider the future of not filing a COVID-19 claim. For example, does it leave you responsible if you did not take the necessary steps to file a claim, and OSHA gets involved, or an employee decides to file a suit? What if they can prove they made a clear statement about being exposed to the virus while on the job?
To listen to the full Out Front Ideas with Kimberly and Mark webinar on this topic, click here.