As a result of the current COVID-19 epidemic, many adjusters and workers’ compensation professionals now face the challenge of determining compensability for this COVID-19 diagnosis. Those of us who deal with workers’ compensation claims regularly can argue any number of positions, including the issue of occupational disease as it is discussed in the statute.
Most jurisdictions follow a similar rule. Employees who contract infectious diseases outside the workplace generally do not qualify for workers’ compensation benefits. Exceptions may apply when the disease results from a compensable injury or occupational disease.
Today, many experts in our industry believe that lawmakers may need to modify the statutes, given the current predicament of much of our healthcare workforce.
COVID-19 and Workers Compensation Claims
For example, there are existing exceptions in Texas to the presumption that infectious diseases fall under the “ordinary disease of life” category.
However, those exceptions are limited by certain job titles, ie, peace officers, firefighters, first responders, and emergency medical technicians.
Labor Code section 504.055(b) applies only to a first responder who sustains a serious bodily injury, as defined by Section 1.07, Penal Code, in the course and scope of employment. For purposes of this section, A first responder sustains an injury in the course and scope of employment includes an injury sustained by a first responder providing services on a volunteer basis.
With all the turmoil surrounding the issue, adjusters may be uncertain about how to proceed with comp claims filed related to COVID-19 exposure or actual disease. Although some recently published articles speculate that the virus will eventually be considered an “Occupational Disease,” claimants must presently prove that COVID-19 qualifies as an occupational disease if they wish to seek contribution for a COVID-19 diagnosis on the basis that it is an “occupational disease.”
Occupational Disease and COVID-19
Any adjuster handling a workers’ compensation claim related to COVID-19 must consider the following factors, among others, in their adjudication:
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- What is a work-related or occupational illness?
- When the employee contracted the illness, was the employee performing job functions?
- Did the employee encounter the exposure at work?
- Do coworkers have similar symptoms?
- Did the symptoms begin because of work-related exposure?
- How widespread is the illness? Is it in the general community?
If people can contract the disease outside the workforce, such as the seasonal flu, workers generally cannot receive compensation under current statutes and regulations.
Hundreds of thousands of Health authorities reported hundreds of thousands of COVID-19 cases in the United States. Because the virus can spread outside the workplace, adjusters may need to deny some claims. Current statutes often require proof that the illness resulted directly from an occupational hazard.
Key Questions for Adjusters
Governor Abbott issued an emergency declaration in Texas that has effectively suspended the statute relative to presumption:
“On March 13, 2020, Governor Greg Abbott declared COVID-19 a statewide public health disaster. The Division of Workers’ Compensation (DWC) is monitoring the latest developments on COVID-19 and the recommended social distancing measures as we consider the potential impact it may have on the delivery of benefits in the Texas workers’ compensation system.
This bulletin is in effect for the duration of the governor’s COVID-19 declaration, or until further notice from DWC.
Governor Abbott approved DWC’s request to suspend the following requirements:
- Work search compliance standards for supplemental income benefits under Labor Code Section 408.1415(a) and 28 Texas Administrative Code Section 130.102(d);
- Testing, training, and application requirements for a designated doctor and maximum medical improvement and impairment rating recertification under 28 TAC Sections 127.110(b)(1) and (3), 127.110(d), and 180.23; and required medical exams under 28 TAC Section 126.6(a).
DWC limits this suspension to the duration of the declared disaster, which puts the adjustment of workers’ compensation claims in a somewhat precarious position in the meantime.
Texas Workers Compensation Guidelines
It is the opinion of the legal theorists consulted for this article that each case should be reviewed on a case-by-case basis.
Clearly, if an emergency medical technician or peace officer contracts COVID-19, the issue is fairly straightforward, given the current literature.
However, it is not clear if this presumption applies to an administrative employee who does not have specific contact with a front-line individual.
Lawmakers may modify workers’ compensation statutes in the future to address health emergencies such as COVID-19. Until then, adjusters should continue following current rules and regulations when evaluating claims. They must base decisions on existing laws and guidance from governing bodies.
Reviewing Claims on a Case-by-Case Basis
Adjusters should conduct a detailed investigation for every COVID-19 claim. In Texas, submitting the proper forms (PLN-15) may provide additional time to complete the investigation. In other jurisdictions, adjusters should contact legal counsel early to determine the best course of action.
As always, feel free to call the medical experts at C³ at (512) 519-9069 or email info@comp-consultants.com if you have any questions about how to handle workers’ compensation claims related to COVID-19.
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