Is It Compensable?

The COVID-19 pandemic has sent reverberations through every industry and has the potential to take a heavy economic toll on workers compensation insurers and self-insurers in particular. The current environment creates many questions. Here are answers to those being most frequently asked.

How do you analyze compensability of a COVID-19 workers compensation claim?

The determination of compensability of an alleged COVID-19 workers compensation claim will, of course, vary state-to-state depending on the particular laws of that jurisdiction. Within most states, compensability will likely be decided on a case-by-case basis, rather than a uniform rule, given the fact-intensive nature of the analysis process.

In most states, the employee will bear the burden of proving compensability. In general, the foundation of your compensability analysis boils down to whether a COVID-19 diagnosis arises out of and in the course of employment. Many state statutes exclude diseases of “ordinary life,” such as the common cold or the flu. However, most states are treating COVID-19 as an occupational disease. This means the employee will bear the burden of proving a COVID-19 diagnosis was the result of exposure to the disease due to a particular hazard of the job, which created higher exposure to COVID-19 than in the general public.

This is a difficult burden of proof for employees to meet. While some states are more lenient and others more strict, the essential question is whether the nature of the employer’s work created a hazard that likely exposed the employee to COVID-19 more so than life in the general public. Given the nature of COVID-19—including the rate of infection in the general public, that contagious individuals can be asymptomatic, that the disease can linger on surfaces for days to weeks, and the fact that it can be spread through respiratory droplets in the air—it will be challenging for employees to prove a hazard of the job was in excess of the hazard of contracting COVID-19 elsewhere. Most employers simply do not generate the necessary peculiar hazards that would enable a compensable COVID-19 claim.

Despite the challenges of an employee proving a work-related COVID-19 diagnosis entitling her to benefits, insurers and employers should be prepared to obtain the necessary evidence to support a denial of a claim. At the outset of an investigation, it is important to determine the general hazards the employee was exposed to that may have caused her to contract the disease. In the recorded statement, it is imperative to at least know the following:

• How many people live in your household?

• Has anyone in your household been in contact with someone with COVID-19?

• Has anyone in your household been in contact with someone exhibiting symptoms of COVID-19?

• Where has anyone in your household traveled, other than to work? Grocery stores? Physician’s office? Retail stores? Restaurants?

• Has anyone in your household picked up takeout food or had food delivered?

• Has anyone in your household received mailed packages?

• Has anyone in your household visited family, friends, or neighbors?

The answers to these questions will help assess whether a particular hazard of the workplace has potentially exposed the employee to COVID-19 more so than her actions in the general public. The more exposure to nonwork-related people, places, and things outside the home, the more difficult it is for the employee to meet the compensability burden.

Does the compensability analysis change for essential workers and businesses?

The federal government and state governments have deemed some employees and businesses as “essential” and allowed them to continue “normal” operations, while other employers have been required to close or institute a work-from-home policy. A worker or business being designated as essential does add a wrinkle to the foregoing analysis of compensability, but the procedure is generally the same.

The added wrinkle is the employee will have something concrete to point to, as the necessary workplace hazard is, by the very nature of its definition, different or in excess of hazards faced within the general public. Although some states are slowly reopening businesses, the essential workers and businesses have carried on with work since the beginning of the pandemic and created more potential for exposure to COVID-19 in the workplace. Regardless, for most states, essential workers still bear the same burden of proving compensability and the foregoing compensability analysis questions become even more imperative in an investigation.

Some states, such as Illinois, California and Kentucky, have initiated rules that essential workers who contract COVID-19 will be afforded a presumption that the diagnosis was a result of their work. Citing procedural shortcomings, Illinois has rescinded such a presumption, but an executive order from Gov. J.B. Pritzker to reinstate a similar provision is expected. California has provided a time-limited causation presumption for those working outside their home who have contracted COVID-19, given certain factors are met. Kentucky Gov. Andrew Beasher issued an executive order creating a COVID-19 presumption for his state’s essential workers, including first responders, health care workers, and grocery store employees.

Several other states are considering similar legislative measures. If facing a claim where the employee is entitled to a presumption that her COVID-19 diagnosis is compensable, the burden shifts to the employer/insurer to prove contracting the disease is unrelated to her employment. Similar to the hurdles faced by employees who seek to prove a link between contracting the disease and work, employers/insurers will have a challenging road in cases where a presumption is in effect, especially with employees who are health care workers and first responders.

However, the presumption does not mean employers/insurers cannot obtain evidence to prove contraction of COVID-19 occurred outside of work. To overcome the presumption, employers/insurers will likely need medical evidence, such as from an infectious disease expert, indicating the employee was exposed and contracted the disease outside of work. To obtain such an opinion, conduct written discovery and take the employee’s deposition. Again, even with the presumption, the more you can show the employee was active in the general public, the better chance you will have showing contraction of the disease was not work related. Recognize that executive orders and legislation are changing the landscape of COVID-19 and workers compensation daily, so be sure to stay informed with regard to your state(s).

When an injured employee is working in a modified-duty capacity and the employer temporarily closes due to COVID-19, are income benefits (TTD or TPD) owed?

The answer to this common question is dependent upon each state. We are wading into uncharted waters with regard to how each state may treat the loss of a light-duty job due to COVID-19 and the insurer’s corresponding obligations. States such as Georgia, Florida, North Carolina, and South Carolina generally define “disability” as an impairment to the injured worker’s earning capacity. In Georgia, for example, an injured worker is only entitled to income benefits if her earning capacity has been impaired as a result of the work injury. Accordingly, if an employee is working in a modified-duty capacity and the employer closes as a result of COVID-19, income benefits arguably are not owed because the employee’s inability to work is not related to her work injury and is instead the result of COVID-19.

On the other hand, states such as Alabama more generally define disability. In the same scenario, the loss of wages while under work restrictions likely triggers the need to commence income benefits, despite the employer’s inability to continue providing the light duty job being unrelated to the actual work injury. Although employers/insurers in Alabama and similar states can argue the provision of the modified-duty job would have continued but for the COVID-19 closure, it is important to keep in mind the emotion and sympathy tied to the loss of wages during this pandemic and the impact that may have on judges rendering decisions on these issues.

How do I move my case forward without in-person depositions, hearings and mediations?

The COVID-19 pandemic has resulted in many states declaring a judicial state of emergency. Accordingly, written discovery, depositions, hearings, and mediations have been reset and postponed, creating delays in pushing claims to resolution. Although in-person depositions, hearings, and mediations are likely not possible in the near future, most states haven taken measures to allow these to occur in a virtual setting. For example, in Georgia, a sworn oath can now be administered through an audio-video connection, documents can be virtually notarized, and parties can consent to a virtual hearing. Depositions are handled through platforms such as Zoom.

Although nothing will fully replace being in the same room as the deponent and having the opportunity to assess body language and credibility in person, the ability to conduct depositions virtually for the time being is helping move the discovery process forward. Some parties are reverting to informally negotiating settlements, but virtual mediations have also proven to be an effective tool when the injured employee or her attorney needs an “outside” voice to bring them to the settlement table and realistically value their claim. 

The COVID-19 pandemic has pushed the workers compensation industry into a new and unique environment, especially regarding whether the disease constitutes a compensable work injury and the overlay of some states providing presumptions to certain workers. The foregoing compensability analysis is imperative to fortify your defense to a COVID-19 claim, and the use of virtual depositions, hearings, and mediations can assist with pushing COVID-19 claims and others to resolution as we work from home