Employees will be filing workers comp claims related to the COVID-19 pandemic, but it remains unclear what proportion of the claims will be compensable, a panel of experts said.
Rules regarding occupational disease claims vary by state and in many cases workers will not be able to prove they contracted the disease at work, they said.
However, the scope and impact of the pandemic may lead to a more lenient view in favor of workers, they said.
They were speaking Wednesday during Business Insurance’s Workers Comp Management Amid COVID-19 webinar.
Workers comp provides some level of coverage for occupational disease, although rules vary by state, said Mike Hessling, CEO North America at Gallagher Bassett Service Inc. in Rolling Meadows, Illinois.
The challenge with COVID-19 is the difficulty in obtaining a positive diagnosis due to test shortages early on and the challenges of determining whether employees’ jobs exposed them to the virus and if they contracted it as part of their day-to-day work, he said.
Regulations are evolving, particularly for first responders and workers in the health care sector, but compensability for other workers “is very much a gray area right now,” Mr. Hessling said.
From a legal perspective, COVID-19 workers compensation claims will be “very, very difficult to prove … because, by its very nature, you can catch it almost anywhere,” said Rich Lenkov, capital member and head of the workers compensation practice at Bryce Downey & Lenkov LLC in Chicago.
However, he added, “there’s going to be a lot of sympathy for them, and in this case, probably rightly so” for first responders, health care workers, grocery workers, delivery drivers and other essential workers who file workers comp claims for COVID-19. This may lead judges and arbitrators to allow claimants some leeway with regards to their burden of proof, he said.
Contract food services company Compass Group USA Inc. provides dining, patient transport and laundry services to more than 2,000 hospitals, retirement homes and health care systems in the country. With workers on the front line, Brian Van Allsburg, Compass’ vice president of risk management in Goshen, Kentucky, said he expects to see some COVID-19 claims that are compensable, but it will likely be “mixed bag” depending on the duties and exposure of the workers.
“Our first priority is really understanding what the scope of impact is across our associate population,” he said.
He predicted that the burden of proof in these claims will become more difficult from the employers’ perspective and that employers in general may not have the appetite to deny coronavirus claims “if there is a lot of merit to support” a worker’s claims.
Another big challenge during the pandemic is how to manage open workers compensation claims, Mr. Van Allsburg said. “You normally have a development cycle (for claims), and right now all of those are on hold to a certain extent,” he said. “I think we will see a financial impact down the road when the dust settles.”
Mr. Lenkov noted that workers currently may be unable to see their doctor or receive treatment and that courts are largely unavailable to handle claims.
“Certainly, this is pushing out the duration of workers comp claims, and we’re also having to get creative about solutions that may have not been adopted as much in the past” such as telemedicine, Mr. Hessling said.
Employers must continue to pay workers comp benefits to injured workers even if the workplace is closed, Mr. Lenkov said. However, employers may be able to require an injured worker to do a telemedicine visit, see another doctor who is treating or making house calls, or participate in an independent medical examination as a condition of temporary total disability payments, he said.
Avoiding future workers comp claims by maintaining the health of the current workforce is another priority. At Compass, the company needs to know if its employees have COVID-19 or are exhibiting symptoms, but also needs to be notified if its suppliers’ workers — who drop off products daily at their facilities — are healthy, said Mr. Van Allsburg.
“It’s a dynamic conversation about monitoring the spread,” he said. “We’re working out mutual agreements obviously with respect to how to notify.”
Lawsuits alleging liability for a worker’s acquisition of COVID-19 in the workplace have already begun to be filed, said Mr. Lenkov, who suspects this will be a “huge area of litigation.”
This article was first published by The Business Insurance.
