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Workers' Compensation: Part 2

Thank you for joining me for my second installment discussing workers’ compensation issues and COVID?19.  Since my last blog during the first week of May, there have been some changes in the lay of the land – yet much of the attention has been diverted from the legal implications of how to handle actual suits being filed and how to handle reopening your business. Therefore, it would seem that reopening is primarily what we will consider; and although claims will eventually arise, they have been fairly quiet over the last month when compared with businesses scrambling to figure out how to reopen as safely as possible.

As our team has previously mentioned, the COVID-19 resource section of our firm’s website is extremely valuable for linking to information that will empower you as well as simply inform you – including links to the “guidelines” for the Center for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”).  We must remember these are not “black letter law” holdings but merely strong suggestions as to how to handle the reopening of your business and the triage of employees and customers if COVID-19 becomes an issue already in your workplace. The “guidelines” from OSHA and CDC are currently the most comprehensive information base from which to launch your re-entry into the business world.

As of May 5, 2020, the number of positive coronavirus cases was 173,257; and the number of patient deaths was 62,806 which exceeds deaths during the entire 2018-2019 flu season. The CDC’s estimated number of deaths during the last 10 years is a low of 12,000 during the 2011-2012 flu season to high of 56,000 during the 2012-2013 season. The good news is the numbers seem to be slowly dropping every two weeks. With an estimated 2,701 deaths attributed to the coronavirus on May 6, there were only 478 deaths by June 1, 2020.  If we look at the graph specifically related to morbidity, it appears as a chain of mountains with the tallest peak on May 6 and the lowest valley beginning March 5 with zero and the end being June 1 with 478.

This week we have convened a special panel to discuss workers’ compensation issues and COVID-19. We are going to get a “view from the bench” by spending some time with the Honorable Tara Inhofe, who has been an Administrative Law Judge with the Oklahoma Workers’ Compensation Commission since 2014. Prior to this, she was in private practice and has handled by claimants and respondents work since 1991.  Additionally, we have a long-time adversary of mine, Esther Sanders, Esq. We have locked horns on several occasions regarding various issues related to workers’ compensation in the former Court of Existing Claims and the new Workers’ Compensation Commission created in 2014.  We anticipate some guidance from Judge Inhofe as to how the Commission in Oklahoma as well as other courts will likely handle COVID-19 issues, and Attorney Sanders will provide us with a claimant’s perspective which will likely be enlightening.

At this time, the two claims filed in the Oklahoma Workers’ Compensation Commission are the only ones currently filed here. No moves have been made from either side, and each attorney stares at the other over the gulf of uncertainty. There are other states where “claims” have been filed, but it is unclear whether they are “litigated” claims or are considered “med only” claims. In theory, a coronavirus infection is just like any other occupational injury or illness. If it results from your work, you are entitled to payment for your medical bills and time missed at work beyond three days. Claims could range from something as mild as a missed-time claim for a mandatory quarantine period following an exposure all the way up to a death claim for a worker who died from work-contracted coronavirus.

Because workers’ compensation for coronavirus is such a new area, it is still uncertain how all of this will work in practice. In Colorado, for instance, Pinnacol Assurance, the state’s largest workers’ comp insurer, said last week that it has received about 1,000 coronavirus-related claims. But it said the majority of those — 60% — were filed out of an abundance of caution and were dismissed after it was later determined that the worker did not contract COVID-19. Of the claims received by the state, 60% have been denied by employers — meaning workers will have to continue fighting for benefits through the workers’ comp litigation process. About 27% have been “admitted” by employers, meaning they will pay out benefits. The remainder are still being processed and investigated.

Of the roughly 400 claims remaining, Pinnacol said it has agreed to pay out on most of them, with the average claim running around $13,000. Early in the pandemic, Pinnacol agreed to cover any COVID-19 testing costs and two weeks’ worth of wage replacement for sick or quarantined first responders or healthcare workers. Many of Pinnacol’s claims so far have come from those two sectors. Like my previous blog entry, the more “accepted” claims are those which are less difficult to prove.  Healthcare workers and first responders are more likely to be successful in tracking down the vector of their illnesses compared with other workers.

This is not too different than the way many Oklahoma employers’ insurance carriers have been handling the COVID situation. Some of the interviewees with whom I spoke recently have determined that one effective means to handle claims is to simply admit them and move toward treatment. This has been a recurring theme for COVID claims in multiple states. There appears to be more of a “let’s cover it until we don’t have to do so” process. This would likely be based upon testing to be completed, etc. In fact, many claims are and will be averted by proper administration of testing procedures. A claim that resulted in testing which was determined to be the common flu would be unlikely to result in a workers’ compensation claim filing thus averting substantial litigation costs. However, once admitted, it is possible to try to “un-ring” the bell; but that is not a situation I would suggest a carrier or employer place itself in.

PRESUMPTIONS STILL BEING DISCUSSED-STILL DEPENDS ON INDIVIDUAL STATES

Regarding the states and the possibility of passing a “presumption of work-related condition,” carriers will react. In fact, some carriers have projected a 27% increase in workers’ comp insurance premiums for employers if the presumption applies to the state’s full list of essential workers. If the presumption applies only to first responders and frontline healthcare workers, my source said premiums would triple for those industries. As of April 2020, twenty-one states have passed presumption laws mainly for first responders and healthcare workers. Some states had “executive” orders issued listing the types of companies whose employees could file for workers’ compensation benefits.

In terms of “recording” claims of illnesses as far as OSHA is concerned, the latest OSHA guidelines exempt “recordable” claims of the flu and common cold. However, the agency has said that COVID-19 qualifies as recordable in cases where a worker is infected as a result of performing work-related duties. It is subject to the same rules and failure-to-record fines as other workplace injuries and illnesses. The initial determination of whether an infection is work-related is the employer’s responsibility.

As of April 10, 2020, only employers in the healthcare industry, emergency response organizations and correctional institutions were required to record COVID-19 cases. Other employers will be expected to implement good hygiene practices and record COVID-19 cases only if there is objective evidence that such cases may be work related and the evidence was reasonably available to the employer. Employers should refamiliarize themselves with OSHA’s recordkeeping and reporting requirements.

Thank you for your continued support, and I will follow up as the situation develops.

James Daniel

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