Workers’ Compensation Regulators Weigh In On COVID-19
At the 2020 SAWCA 72nd Annual Convention, regulatory leadership from several states discussed the challenges and regulatory issues presented by COVID-19.
Mississippi Senior Administrative Law Judge Deneise Lott served as moderator, allowing each regulator to provide updates on the impact to their state.
As of the end June, Florida had 5,693 COVID-19 claims filed and 2,617 have been denied. They ramped up their data collection by developing an internal team to determine if claims are COVID-19 related, costs and frequency, and other elements to evaluate economic impact, including market constriction and how many workers’ compensation exemptions were being issued. They published this data as a resource and continue to add to it with information on premium and open/closed claims. Data on frequency and cost have not been surprising, however lost-time claims have been shorter than expected. This may point to the state of the economy.
Mississippi has a smaller population than neighboring states. In COVID-19 cases per 100,000, they rank in the 19-21 range among the states, with approximately 42,000 cases. A large population of tourism traffic does travel through the state, so that might contribute to their numbers. As of last week, only 274 first reports of injury have been filed. Of those, only five have been controverted and two are on a judge’s docket. In June, Mississippi passed a torte immunity bill to protect businesses from COVID-19 liability claims, unless gross negligence on behalf of the business can be proven.
Colorado has a population of approximately 6 million. They have received about 40,000 COVID-19 cases and 1,700 recorded deaths. Infection rates peaked in late April post relaxation of stay-at-home orders. Those will likely be reinstated in some way, which will have a direct effect on payroll, exposures and other elements of workers’ compensation. They have received over 1,923 workers’ comp claims related to COVID-19 so far, and over 600 of them have been admitted for benefits. There are over 1,200 denied claims, which is a high rate of denial for workers’ comp in general. Eleven were fatal claims – only one of which was admitted for benefits. Colorado does not have presumptions. It went to court, but was not passed due to overreach on the part of those pushing for the presumption coverage. This included an extremely broad “essential worker” definition, raising the level to rebut to “clear and convincing evidence” as opposed to preponderance of evidence, the potential of a $6 million fiscal impact on the state as a self-insured employer, and no defined end date on the potential benefits.
Statewide COVID-19 numbers have been increasing in recent weeks. The state reports 143,123 COVID-19 cases total and 3,173 deaths. They administered over 1.1 million tests and about 10.3% have come back positive. For workers’ compensation, they have 1,827 first reports of injury filed and 56% of those have been accepted as compensable after a causation investigation. This is all on a voluntary basis. The state has not been called upon to adjudicate on a COVID-19 claim yet. In June, Georgia passed a tort immunity bill for businesses, which states that no business, entity or individual will be liable for damages in any action involving a COVID-19 claim unless the claimant proves that their actions showed gross negligence, willfulness, misconduct or reckless intention of harm. This was designed to provide an incentive for businesses to reopen without fear of being sued. It excludes anything that already existed in workers’ compensation law and the definition of compensability.
Texas is experiencing an uptick, but cases have been declining this week. They are unsure if this pattern will maintain. For claims, they have a smaller number filed than last year at the time and are currently half of what they were in April. It is much too early to tell what that data tells them. Texas has issued a mandatory data call for insurers. The first data set is due to the division on August 15, which must include dates of injury (Dec-June), COVID-19 exposures and injuries reported as well as payments made on those claims. This will provide extremely helpful claims and benefits data. In the system now, they have received less than a handful of claims related to COVID-19.
Currently, 47% of COVID-19 claims that have been reported are from healthcare facilities. Governmental services, including law enforcement, account for approximately 22% of COVID-19 claims. Meat packing and processing plants account for about 14% of the claims. Retail accounts for 6% of claims and education/restaurants/delivery only make up 4%. That leaves around 7% of general claims. As of today, they had 587 claims filed, with a population of almost 2 million. The state has about 22,500 positive cases reported to date.
With a population of approximately 4.6 million, Louisiana began with extremely large numbers due to Mardi Gras gatherings. The state has 94,000 reported cases of COVID-19, with 1.1 million tests performed. There were 3,500 deaths to date. They have received 883 first reports of injury for COVID-19 cases. These are coming primarily from the healthcare industry, law enforcement and elementary/secondary schools – the latter of which surprised the state. In the last two weeks, they have seen an uptick of cases, which they suspect is a result of recently relaxed restrictions. Louisiana passed a tort immunity bill, which states that civil damages will not result from an actual alleged exposure to COVID-19, unless it is shown to result from gross negligence, willful misconduct or intentional criminal misconduct. There was a bill proposed to provide a COVID-19 presumption for healthcare workers, but because the legislature had an abbreviated session before the shutdown, that bill failed because it did not make it to the Labor Committee.
Virginia has about 5,000 filings of COVID-19 related claims. A decision has been made in only about 100 of those, and employers denied about two-thirds of them. They do not have firm data on occupations, but they anticipate plenty of healthcare claims. They are also aware that their poultry processing plants have been hit hard. They have done a good job at flattening the curve and have only seen a recent small uptick. They are concerned about visitors from neighboring states spreading the virus into Virginia, so they anticipate that their numbers will rise.
To date, the state reports close to 2,700 COVID-19 claims. They differ from many of the other states. For instance, of their 2,700 claims, approximately 2,100 have been accepted. About 1,500 of those where allowed and closed and about 600 of them are still open. In addition, if nothing is covered by the employer, the state will allow a claim and will pay wage loss benefits for the period of quarantine, even if there is ultimately a negative test. They have only rejected 75 claims to date. 73% of claims have been from the healthcare industry, but the state is getting pressured to add more industries to what they refer to as an “assumption” as opposed to a “presumption.” There is a list of three criteria to determine them: 1) Was there an increased risk or likelihood to contract the virus because of the job? 2) If not for the job, would the person have been exposed to the virus or contracted the disease? 3) Can the worker identify a specific source or event while performing their job to identify the exposure? They have determined that healthcare workers and first responders meet those criteria. They have not yet seen legislative interest to pursue this broadly for all essential workers.
As a state of about 6 million, South Carolina is one of the hotbeds of infection in the country. They have conducted about 600,000 tests, yielding around 71,000 cases. In the last couple of weeks, the percent positive has been hovering at 20%. They have a task force and legislation is being discussed that breaks employees into three categories: 1) First Responders – law enforcement, firefighters, EMTs, State and National Guard, 2) Essential Employees and 3) Non-Essential Employees. Those are defined based on the Governor’s orders. First Responders have a conclusive presumption. Essential Employees have a rebuttable presumption. Non-Essential Employees fall under the occupational disease statute, with no presumption. The state had 436 claims filed under COVID-19 codes, with 180 of those already closed. The remaining are still pending and none have been litigated with court in recess.
Maryland has only received around 500 cases where COVID-19 has been cited. They are one of the few states where the injured worker files the claim themselves versus a first report of injury. Maryland has presumptions, but not due to the virus. Their current law addresses needs related to compensability, however, the question that remains to be seen is what injury comes as a result of the virus. This could take years to determine.
Tennessee has only conducted minor conversations in the legislature related to COVID-19 presumptions that did not go anywhere due to recess, but the conversation may resurge. They are learning towards taking up telehealth, but not passing any laws related to presumptions.
Out of 46,000 cases, Wisconsin has received approximately 740 claims. Of those, around 65% have been paid by insurers, with two waiting for hearing. The state very briefly had a presumption for first responders. The legislature passed a series of COVID-19 laws, but they were tied to the stay-at-home order that ended in May.
There is currently no presumption for essential workers, with some chatter in the legislature, which has little traction. They have a parallel system to workers’ compensation for fire fighters and law enforcement, which pays 100% of pay and medical. There was a presumption signed for that program. They majority of their claims are coming from this group.
Kentucky has received 2,800 first reports with COVID-19 codes. The vast majority of which included potential exposure, not positive tests. To date, they only have four workers’ compensation claims filed. The state does have a presumption that was issued by executive order. It provides that, if an employee is removed from work by a physician due to occupational exposure due to COVID-19, they are entitled to disability benefits from the date of removal. There are several categories of employees under this presumption, including healthcare workers, first responders, correction officers, grocery store workers and eight other categories of employees. This was very broad, so they issued a statement of guidance to try to keep the figures down, which has helped. It states that the benefit has to apply to temporary total disability (TTD), it is not retroactive, and benefits paid are subject to offset any other TTD benefits (like unemployment or FMLA Families First Coronvirus Response Act).