Is COVID-19/SARS-CoV-2 special? Is it different? Certainly, there has been recognition that some people see it as unique and unprecedented. Others see it as a virus that has similarities to other viruses, though admittedly with significant mortality and transmission risks. The question is not whether the virus presents risks to people and business enterprises, but how it is treated by workers' compensation systems.
In that regard, if you have not read the Sedgwick paper on Expanded use of Presumptions by Max Koonce, you should. He addresses how markets and individuals have reacted to the onset of this pandemic. This paper is the second in a series, and I am proud to have participated in the first: A Study on the Expanded use of Presumption. There is discussion in each perspective regarding the manner in which legal standards have been applied in various specific settings and employments.
Should the allegations of illness from SARS-CoV-2 be treated differently from other allegations of illness or injury? In May, the Industrial Commission of Arizona issued a statement regarding the investigation of COVID-19 claims, described in STRENOUSLY Encouraged. There, the Commission noted that
"Like all workers’ compensation claims, a denial of a COVID-19 claim must be based upon a reasonable investigation and must be based on facts and evidence relevant to the claim"
Critical in that statement is the "like all" preface. The language thus, in part, supports that an infection claim should be treated as any other claim. More recently, Oregon published a draft rule on COVID claims, as reported by WorkCompCentral. The September 28, 2020 draft sought comments from the public, but provided a fairly short deadline (by the end of the next day according to WorkCompCentral). The proposed rule segregates claims related to SARS-CoV-2 and delineates specific claims handling processes for those allegations. The employer must conduct "a reasonable investigation" for all such allegations. That must include:
- (a) Determining whether or not the nature of the worker’s employment resulted in a likely exposure to COVID-19 or SARS-CoV-2;
- (b) Determining whether the worker did not work for a period of quarantine or isolation at the direction of a medical service provider, or" others (including the employer).
- (c) Obtaining a medical or other expert opinion if, before a compensability denial is issued, the worker tests positive for COVID-19 or has a presumptive diagnosis of COVID-19, the insurer is aware of the test results or presumptive diagnosis, and the source of the exposure is unclear; and
- (d) Determining whether medical services were required as a result of potential workplace exposure to COVID-19 or SARS-CoV-2, even if the worker ultimately did not test positive for COVID-19.
The specifics of the investigation are thus delineated and distinct for one type of exposure, SARS-CoV-2. Each carrier that has reported "five or more claims for COVID-19 or exposure to SARS-CoV-2" is to be audited. Even if all of those claims have been accepted, the carrier will be audited. This will be an examination of "all denied claims for COVID-19 or exposure to SARS-CoV-2, for which the denial has become final by operation of law by the date of audit."
So, seemingly an audit will be required "regardless of whether those claims have been accepted or denied," but only the denied claims will be audited. Thus, if a carrier has reported 5 or more claims, there will be an audit. However, if all of those claims were accepted it will be a presumably brief audit as only denied cases are to be examined?
According to WorkCompCentral, the rule was then adopted on September 30, 2020, and will be effective from October 1, 2020 through March 2021. The state explained that "the need to promote appropriate claims processing is 'immediate and emergent.'" There is an "emergent" need, meaning "arising unexpectedly; calling for prompt action." There is thus recognized an important need for appropriate claims processing in allegations of SARS-CoV-2, but not in allegations of other workplace injuries?
Why are COVID claims different? Is there a reason that, absent such a temporary rule, such claims would not be investigated by the claims professionals just like every other workers' compensation claim? When an injured worker reports an injury or occupational illness of any description, would it make sense that a carrier would be expected to determine if there is a likely occupational cause, to obtain medical insight, to determine if medical care was necessary?
New York also made the news recently regarding COVID. In Asking Insurers to Help Workers on COVID Claims Raises Eyebrows, WorkCompCentral (paywall) reported the Chair of the New York Board "urged insurance carriers to bird-dog injured workers' medical documentation in COVID-19 claims." The writer says that this "struck some as odd."
According to the Board, "the letter is one way in which the agency is trying to move COVID claims along." Lawyers quoted in the article complain instead that the Board is not scheduling hearings on COVID-19 claims "without additional work from the injured worker." One commented that the "Board does not appear to be enforcing rules . . and the administrative closures (of claims) seem to be happening without proper notice to the injured worker."
It is possible that COVID-19 claims are being treated differently in Oregon, New York, and elsewhere. It remains interesting why they would be however. If a jurisdiction has rules in place for the investigation of claims and for the processing of them, why would the process of investigation or determination be different for one malady versus any others?
I have spoken at a variety of programs since the COVID-19 and SARS-CoV-2 immigrated to the U.S. last spring. The best advice I have mustered for claims professionals is to perform the same thorough investigation regarding every injury claim received. That includes contact with the worker, the employer, and in appropriate cases witnesses. That includes obtaining and considering medical documentation and statements. That includes consulting the law, regulations, and contractual obligations.
In the process, it is important to remember that workers' compensation was contrived for the benefit of two people: the worker and the employer. These are the parties to the "grand bargain," and each has renunciated certain common law rights and obligations in exchange for the substitute workers' compensation substance and process. Each deserves the due process afforded by law.
In the various systems that comprise American workers' compensation, the methodology may be a general requirement to investigate all claims, or rules and regulations may require some special process. COVID-19 care may be presumptive for some and not for others, either through legislative amendment or executive action. Regulations may be specific and COVID-centric or may be uniform for all injured workers. In short, there are a variety of state reactions. Whether COVID is different or not, there are states that are apparently treating it differently.
For the claims handler, the appropriate course is to understand and comply with whatever process a system instigates. Whether different or not, the best course is compliance with the state's mandates. In the absence of specific special mandates, it seems appropriate in a nation of equal protection to afford every allegation of work injury or illness the same intense, efficient investigation and process. Each injured worker deserves nothing less.
