It has been more than eight months since the start of the COVID-19 pandemic in the U.S. and the impact on workers compensation claims continues to be less than predicted, experts say.
In much of the country, the number of COVID-19 workers comp claims accepted — even in the 17 states with a presumption law or executive order that allows workers to claim they contracted the virus at work — have not been particularly high or costly, they say.
Illinois, despite having a presumption law with one of the widest nets, hasn’t seen the big influx of claims that was anticipated, said Rich Lenkov, capital member and head of the workers compensation practice at Bryce Downey & Lenkov LLC in Chicago. He estimates that COVID-19 claims comprised less than 5% of the overall claims he’s seen in his practice this year.
“I represent a lot of companies that employ first responders, hospitals, and we’re seeing more (claims) than the average, but not to the degree a lot of us thought initially,” he said.
Health care employers are erring more on the side of accepting claims if it’s clear that an exposure occurred at work, he said. But most of his clients have tended to be “fairly skeptical” about whether the claims did arise out of and in the course of employment because of “the pervasiveness of the pandemic. There’s difficulty in pinpointing exactly where an employee might have been exposed. For the most part, we are disputing a relationship to work.”
In California, coronavirus claims are coming in three different categories: those covered by the presumption that Gov. Gavin Newsom put in place by executive order between March 19 and July 5, claims covered by the less expansive presumption law that took effect in July 6, or people not covered by either because they acquired it before the executive order, said Robert McLaughlin, owner and partner of McLaughlin & Sanchez APC in Chula Vista, California, who represents workers.
But “most people are not filing claims,” he said. “Most of the clients that I’ve been talking to openly say they don’t think they got it from work.”
According to the California Workers Compensation Institute, the state saw nearly 54,000 COVID-19 claims from March through October. However, except for the months of June and July, the number of coronavirus claims made up less than 5.5% of total claims; COVID-19 claims comprised 10.5% of total claims in June and 12.2% in July. About 30% of COVID-19 claims were denied — the rest have either been accepted or are pending.
In presumption states, adjusters seeking to rebut the claims are looking closely at two paths, either direct family exposure or what an employer has done to protect their workforce from COVID-19, said Matt Zender, Las Vegas-based senior vice president of workers compensation strategy for AmTrust Financial Services Inc.
Although COVID-19 claims frequency has been higher in states that have codified a presumption of compensability for certain workers, such as health care providers and first responders, there is the ability to rebut based on actions that employers have taken, such as implementing clearly documented safety protocols, Mr. Zender said.
Having such workplace policies in place is “generally a good defense to even a rebuttable presumption,” Mr. Lenkov said.
Several states without presumption laws are showing that coronavirus claims tend to be a low percentage of overall claims costs. Between January and October, the Florida Division of Workers Compensation reported a little more than 23,000 COVID-19 indemnity claims, which represented 31% of all indemnity claims but comprised just 8% of total benefits as a percentage of total claims paid. The majority of accepted COVID-19 claims were filed by health care workers, first responders and protective services workers, and service industry workers, according to the division.
In Texas, the Workers Compensation Research & Evaluation Group found that insurers reported more than 25,000 COVID-19 claims and accepted slightly less than half of all positive test claims, with most claims involving first responders and correctional officers. The state did not have figures available to compare coronavirus claims to overall claims filed.
The Ohio Bureau of Workers Compensation received just 1,718 COVID-19 claims between March 11 and Sept. 16, with the majority filed by first responders and health care workers. Of those claims, the BWC accepted 400 claims and denied 118. About 400 claims were voluntarily withdrawn by employees, and 192 are pending. Self-insured employers in the state accepted 319 claims and rejected 188, with 97 pending, according to the bureau’s data.
Most of Ohio’s coronavirus claims have come from health care, but they have also come from grocery store, manufacturing and law enforcement workers, and most claimants have returned to work, said Patricia Harris, chief operating officer at the Ohio Bureau of Workers Compensation. Currently, about 80 denials have been appealed to the Ohio Industrial Commission, she said.
The BWC created a team of a half-dozen employees to address all COVID-19 claims.
“We thought it was better to have a team as opposed to having various people making decisions,” she said. “That way we had consistency in our approach on how we investigated the issues and made decisions.”
This article was first published in Business Insurance.
