Workers’ Compensation Things That Make Bob Go Hmmm

At the 72nd SAWCA Annual Convention, Bob Wilson, President and CEO of WorkersCompensation.com, gathered a panel of regulatory, industry and legal experts to discuss the latest workers’ compensation issues. Not surprisingly, all of the topics making the panel go hmmm this year relate to the novel coronavirus and its impact on the industry.

The panel included:

• Abbie Hudgens, Administrator of Tennessee’s Bureau of Workers’ Compensation
• Karl Aumann, Chairman of Maryland Workers’ Compensation Commission
• Greg Gilbert, Chief Reimbursement and Government Relationship Officer for Concentra
• Wade McGuffy, Founding Partner of Goodman McGuffey
• Kevin Tribout, Executive Director of Government Affairs at Optum WC

What is the biggest surprise for you that came out of COVID-19?

Wilson: I am stunned at how smoothly working remotely has gone and how productive employees have been in doing so. There are significant savings involved for employers to go virtual, and since it has gone so smoothly, that might be something to consider for the future.

Hudgens: Administratively, workers’ compensation did not miss a beat. Court hearings and mediations went forward. We were almost able to do everything virtually.

Gilbert: As healthcare providers, how crazy this was in the beginning. We were receiving rapidly-changing, and often conflicting, guidance, which was stressful for our providers and clinicians. We were also surprised at the lack of PPE and what lengths we had to go through to get it.

Aumann: Everyone really pulled together, putting aside differences, and figured out how we were going to do this. I was very proud of the workers’ compensation community.

McGuffy: From a legal standpoint, how long this has gone on and its impact on the court systems. The courts are not impaneling juries. Only this week, Georgia is beginning to have virtual hearings, but Florida has been doing that this entire time. Each state has done it differently and has seen different results.

Tribout: The need for injured workers to get care does not stop, and I was impressed at how quickly the industry adjusted to get their folks working from home and still providing the same level of service and care.

As a regulator, what lessons have we learned and what will you do differently next time?

Aumann: We are learning every day. New things are constantly coming up, so you have to be flexible. We had a 10,000 case backlog in May and the video hearings were not making a dent, so we followed all the guidelines and conducted appointed in-person hearings for a month. We have now been able to reduce that backlog by almost 50%.

Hudgens: We do need to think about our continuity plans in a different way. We needed to improve our bandwidth, so we are working on getting better technological assets. Also, we have learned to have backups for people in case they do get sick, so we have developed new policies that will keep business moving. We are fundamentally changing the way we do business.

In healthcare, what lessons have we learned and what will you do differently next time?

Tribout: Flexibility is key. We cannot be stuck in existing practices. We have to be able to adjust quickly to provide care seamlessly. Also, we cannot forget the past just because we have COVID-19. Past problems, like opioid addiction, have not disappeared and we still have to address them.

Gilbert: We have to be nimble in many ways – with staffing, treating COVID patients and also treating injured workers. We learned quickly that we need to stockpile PPE. We are also starting to determine how to handle things now that employers are starting to bring their employees back to work and how that can be done safety.

Technology is great, but there are some security concerns. How do we address them?

Aumann: It is a new challenge because people were unfamiliar with the technological options. Our state department prohibited the use of Zoom because of security concerns, but we adapted to Microsoft Teams all parties involved loved it. That made the adjustment easy.
Gilbert: We are transmitting injured worker information, so we already had very secure system. One thing that has changed is that we have blocked at-home printing ability, so we do not have personal health information (PHI) sitting around home offices. Otherwise, phone calls are fine and the telemedicine systems are very secure.

Tribout: When you have employees working from home, their internet set up does not have the same level of security. Businesses have to make sure that all employees connect via VPN so that the data is protected.

Due to COVID-19, we are seeing many changes to rebuttable presumptions. Is this the beginning of a potentially new benefit category in workers’ compensation?

McGuffy: None of the four states my organization works in have ever considered a communicable disease to be an occupational disease. It is very hard to prove. Cases with healthcare employees are a little easier to prove, but it is very difficult in other occupations. If this changes, I think it could cause financial damage to carriers and companies that self-insure because it was not originally built into our workers’ compensation system.

Hudgens: In my state, Tennessee, there is no presumption. In my opinion, if your workers’ compensation system is working as it should be, you do not need a presumption, because the system will identify if you have obtained that disease in the course and scope of your employment. If we start making every public health issue compensable under workers’ compensation, we are doing something to the basic fabric of our system that it was never intended to do. If we go down this path, there will probably be negative consequences.

Aumann: You have to acknowledge the fact that there is a huge political component to all presumptions. Presumptions are motivated by addressing the needs of a particular political constituency. Legally, in workers’ compensation, we should be able to address each situation on its merits, but in reality, there are political considerations that sometimes come into play.

Wilson: As a society, we seem to be looking for other people to pay for things and workers’ compensation is probably a particular target on the COVID-19 front.

We are seeing a lot of workplace violence when employees try to enforce mask rules. Should this be a larger concern for our industry?

Hudgens: This should be a growth period for the security guard industry. They should be posted at entrances and responsible for enforcement. As for legal hearings, we tell the individual they have a right not to wear a mask, but we will postpone the hearing. It will not take place until it is safe to do so. People are frustrated and tensions are high. We have to teach our employees how to deflect the anger and deescalate the situation.

McGuffy: An employee assault would be covered in most states because, if it is a condition of employment, that connects it to the work.

What is the industry going to look like moving forward?

Tribout: Telemedicine is here to stay. That may impact the elimination for large call centers and, because physicians can treat in a virtual environment, it might provide more personal care. However, eliminating the face-to-face communication might impede some treatments, like assessing pain.

Hudgens: It has been difficult during COVID-19 to identify misclassified employees because we cannot physically go to worksites. For that matter, any situation that requires travel to a worksite is going to be difficult.

McGuffy: From the legal side, the day of in-person mediations may have passed. We will likely see changes in corporate travel guidelines and insurance companies may prohibit their attorneys from traveling.