Notwithstanding effective and safe vaccines coupled with ongoing efforts to “bend the curve,” COVID-19 will continue to be a challenge for members of the claim management team in the coming year. These challenges include the increasing ability of employees to bring claims related to workplace exposure to the virus. Now is the time to come to terms with the long-term ramifications of the global pandemic and how it will impact workers’ compensation programs. Success will be defined on efforts made in discovery to reduce exposure and accept primary liability on the correct claims.
Compensability of COVID-19
Exposure to COVID-19 and the risks incurred by employees challenged state legislatures to amend their workers’ compensation acts. As a general rule, “ordinary diseases” of life are not compensable for workers’ compensation. In early 2020, laws were passed to allow certain classifications of employees to have a statutory presumption. These laws further defined compensable injuries to include exposures to COIVD-19.
These changes required claim management teams and other interested stakeholders to adapt. Various measures that have taken place include:
- Update telecommuting policies to allow (and often require) employees to work from home when practical;
- Require masking and the use of face shields to reduce the chances of workplace transmission; and
- Implementation of enterprise-wide COVID-19 vaccination mandates.
Notwithstanding these changes, there continues to be an upward trend in infection and claims made for workers’ compensation benefits.
Claims Investigation of COVID-19 Claims
There are many steps that proactive claim management teams can take when it comes to claims made under a statutory presumption or other classifications of claims.
- Create special teams dedicated to handling COIVD-19 claims. These teams should be comprised of members who have training and experience in difficult claims. This is especially important when the claims involve an employee with hospitalizations and ongoing disability.
- Encourage timely reporting of work injuries. Timely reporting of work injuries allows members of the claim management team to preserve evidence and engage in contact tracing. This can include determining possible opportunities for exposure outside the workplace.
- Take a recorded statement early in the claims process. Obtaining background information on the employee’s activities and determining possible sources of exposure.
Taking these proactive steps allows members of the claim management team to make better decisions regarding primary liability early in the process.
Taking an Effective Recorded Statement in COVID-19 Cases
There are many areas of inquiry that a claim handler should consider when it comes to cases involving the global pandemic. Suggested areas of inquiry and questions include:
Information concerning the employees work environment
It is essential to determine the number of people the employee interacted within the work environment. Determine how employees are spaced and what steps the employee is taking to reduce the spread.
- What policies and procedures does your employer have to reduce the spread of COVID-19?
- Does your employer enforce workplace requirements such as masking, etc. – and do you comply with these requirements?
What additional precautions do you take in the workplace and during your personal time to prevent COIVD-19 transmission?
Obtain detailed information regarding the employee’s non-work activities
These are “must ask” questions when evaluating whether the exposure to COVID-19 occurred outside the workplace. Be polite but aggressive.
- How often do you go outside your house when not at work – and where do you go? What precautions do you take when going outside your house?
- Do you share a residence with anyone? If so, what precautions do they take to prevent exposure?
- Have you had any previous COVID-19 tests? If so, when and where? Why was testing conducted?
- Have you taken any trips outside the state?
Asking questions like this will help you develop a rebuttal position to applicable statutory presumptions and develop your defenses.
Other Issues to Consider in Discovery and Investigation
Proactive claim handlers can also investigate other issues in exposure cases. Always remember to investigate in an ethical manner social medial posting. This information may lead to other lines of questioning. It is also vital to obtain and review all medical records. Other areas of investigation can include understanding current exposure trends within the state or region the employee works. Be sure to also speak with a human resources representative at the employer to determine if other employees have called in sick or have tested positive related to COVID-19.
Unfortunately, workers’ compensation issues concerning COIVD-19 will continue to make an impact in the coming year. There are things proactive stakeholders can do to properly investigate a report of exposure and only accept the right claims. Taking these steps will help ensure program efficiency.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is the founder & lead trainer of Amaxx Workers’ Comp Training Center, which offers the Certified Master of Workers’ Compensation national designation.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.