A recent headline in the Wall Street Journal proclaimed, “COVID-19 Workers’ Claims Face a High Bar.” Acknowledging that there is no comprehensive data on COVID-19 claims, the author, utilizing some anecdotal stories along with some scattered data, implies that legitimate claims are being denied. COVID-19 may be a novel virus, but state workers’ compensation systems have decades of experience with contagions in the workplace. By their nature, infectious disease claims are complicated. It is not unusual for insurance carriers to deny a claim pending the determination of the factual circumstances that gave rise to the claim.
In New York, as anticipated, the Workers’ Compensation Board (WCB) has readily accepted COVID-19 claims from health care workers. A recent decision by the WCB provided guidance for other types of employers. The Board reversed the establishment of a COVID-19 claim, but then directed further development of the record. The decision provided a road map for claimants:
“…the claimant may show that an accident occurred in the course of employment by demonstrating prevalence. Prevalence is evidence of significantly elevated hazards of environmental exposure that are endemic to or in a workplace which demonstrates that the level of exposure is extraordinary. A claimant may demonstrate prevalence through evidence of the nature and extent of work activities, which must include significant contact with the public and/or co-workers in an area where COVID-19 is prevalent. Public-facing workers and workers in a highly prevalent COVID-19 environment are the workers who can show that the exposure was at such a level of elevated risk as to constitute an extraordinary event. Moreover, it is not necessary that the medical opinion of causally related COVID-19 be 100% certain …. Rather, it is sufficient for the claimant to provide testimony regarding the work environment along with a medical opinion that indicates that because COVID-19 is prevalent in the community and in the workplace, it is reasonably probable that it is causally related….”
A carrier does have the opportunity to present contrary evidence in opposition to the claim.
To date, we have not seen a large number of COVID-19 related claims from our 3,200 contractor and industrial clients. Fortunately, the anecdotal evidence suggests that workplace safety protocols were effective in reducing transmission of COVID-19.
The impact of the pandemic, however, has not been limited to the small number of COVID-19 related claims. The health emergency has deleteriously affected the management and outcomes of many non-COVID-19 claims. Claimants who are partially disabled are required to demonstrate “labor market attachment.” In other words, claimants must produce evidence of a genuine attempt to obtain employment within their physical limitations as determined by their medical providers. This requirement greatly inhibits abuse. Due to the disruption of economic activity caused by the pandemic, the WCB has suspended this requirement. This suspension is reasonable, but it does serve to delay claim resolutions, which result in increased claim costs.
Due to the disruptions in the medical community, needed treatment, diagnostic tests, and surgeries were delayed. The WCB necessarily loosened the requirements for claimants to periodically provide medical evidence of their disability. Carriers have also experienced delays in scheduling independent medical examinations (IMEs) with qualified consultants. These delays negatively impact the outcome of the claims. The WCB has issued an emergency authorization allowing telemedicine visits, which has somewhat alleviated these problems, but a virtual visit is not the same as an in-person physical examination.
Despite these disruptions and problems, the system, under the guidance of the WCB, promptly responded to the emergent crisis and has adapted to the situation. Through the use of virtual hearings and the implementation of several procedural adjustments, the WCB continued to meet the needs of injured workers. Benefits continued with minimal interruption. Most disputes were resolved promptly with due consideration for the rights of all parties.
