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COVID-19 Workers Comp Claims Investigation

June 2, 2020

Click play to listen to Synergy's audiocast, which provides current information to help employers through COVID-19 workers' compensation claims.

Common questions from employers are addressed, including:

  • What information is most important to ensure a thorough COVID-19 compensability investigation
  • When a COVID-19 claim should be reported for workers' compensation coverage
  • Why it's important to report a COVID-19 claim, even when workers' compensation benefits are not expected by the employee
  • How employers are impacted by OSHA's current COVID-19 enforcement expectations for documentation and investigation

The information shared in this audiocast is current as of the date posted. Guidance continues to change and the above information may become outdated. Therefore, you may receive additional communication from Synergy regarding an update on this topic.

 

Transcript

Joanna: Hi everyone, this is Joanna with Synergy Coverage Solutions and today I am joined by Jill Bowyer to discuss COVID-19 as it relates to workers’ compensation. Jill, our Chief Operating Officer, previously served as the Executive Vice President of Claims and has a wealth of knowledge in claims investigation. Thanks for your time, Jill, and if you don’t mind, I’ll dive right in.

Jill: That’s great.

Joanna: If an employer becomes aware that an employee has COVID-19, under what circumstances should an employer report it as a COVID claim to Synergy?

Jill: So, there are three main circumstances that the employer should report a COVID infection to Synergy. First, if an employee indicates to the employer that they believe they contracted the disease from work. Second, if an employer has an outbreak of COVID 19 at a specific facility, they need to send in a claim for each of the affected individuals. Finally, and most importantly – OSHA just came out with new guidelines to investigate and document COVID infections. If, through the investigation, it is clear that COVID was not contracted in the workplace, a claim does not have to be submitted to Synergy. Otherwise, the employer should report all other claims to Synergy for an investigation regarding compensability. OSHA is not only requiring an investigation of the illness, they are also requiring detailed documentation. All employers need to take these guidelines very seriously. Synergy has actually created an Employee COVID-19 Investigation form that can assist the employer in documenting a recordable OSHA infection.

Joanna: Just a quick note, OSHA’s recordkeeping guidelines for COVID-19 can be found on their website, osha.gov in the Coronavirus Resources page under the “News and Updates” section. The memo is titled “Revised Enforcement Guidance for Recordkeeping Cases of Coronavirus Disease 2019” with a date of May 19, 2020.

Joanna: Okay, a question we’ve been getting a lot lately - If an employer reports a COVID claim to Synergy, is it compensable under workers’ comp?

Jill: Well, the answer to that question is, it depends. When COVID first came to the United States, the answer in the vast majority of States was very clear - based on the individual Workers’ Compensation Act, it would not be compensable. However, there is a trend among the States to actually change the Workers’ Compensation Act through either emergency orders or legislation that broadens the definition of compensability specific to COVID. So, some States have actually stayed silent on the subject and are relying on the definitions written in their own State’s Workers’ Compensation Act. Other States have proposed legislation and it is awaiting ratification, and then there’s still others who have already passed legislation making certain COVID claims compensable. So really, each State is different, and many States are in flux on the issue.

Joanna: Now can a COVID claim that was previously not compensable later turn into a compensable claim?

Jill: That’s a great question and unfortunately yes, that is entirely possible. As emergency orders and these legislations are passed, they are many times retroactive in nature. So what that means is if we investigate a claim today and deem it to be not compensable based on the State’s Workers’ Compensation Act, and tomorrow legislation is passed and it is retroactive, we may have to overturn that decision.
Joanna: And why is it important that Synergy perform a full investigation on COVID claims even if the infection is minor or the employee isn’t currently claiming benefits?

Jill: Well, this disease is not like any other disease that we’ve experienced and it progresses very very quickly. And, while the employee may be quarantining today with very minimal symptoms, tomorrow the employee may be admitted to the hospital. So we can’t really take for granted that somebody is going to be fine and there won’t be any expenses associated with the claim. And we’re also learning that this disease can cause long lasting health issues. So, again, if today the patient is recovering, there could be future issues. We’re aware of things like blood clots, kidney failure, and decreased lung capacity as potential results of COVID-19. So, if we’re not doing a full investigation, early and upfront, and these issues arise we will have lost the opportunity to really understand whether COVID was actually contracted through work since many times by that point, memories will have faded, documents are misplaced and maybe even attorneys get involved.

Joanna: You mentioned attorneys getting involved. Do you anticipate a lot of litigation for these types of claims?

Jill: Unfortunately, we do. We anticipate a high litigation rate on COVID claims, and that’s yet another reason we need to investigate early. We should gain as much information as possible today in order to defend ourselves tomorrow. We’ve already seen attorney representation on claims that haven’t been reported to us here at Synergy, and that puts us at a disadvantage in investigating the claim.

Joanna: What about an employee who isn’t currently claiming benefits – should an employer still report a claim in this case?

Jill: Yes, we are recommending that the employer rely heavily on that OSHA recordable guideline for a barometer of what to report even if the employee is not claiming benefits. While an employee may not want to put a claim in today, as they begin to realize the cost of hospitalization and treatment, they are going to change their mind. This has already happened several times at Synergy. So, we understand hesitation for investigating something and potentially opening up a can of worms, but we anticipate that not investigating claims fully upfront will put us at a much greater disadvantage in the future. The bottom line is we need to consider the future of NOT filing a COVID-19 claim. So if a claim is not reported and therefore, not investigated, and the employee later comes up with a plausible reason that they believe they were infected at work, it’s going to be very difficult to dispute those facts if we weren’t able to investigate up front. And, unfortunately, likely those are going to be the claims that are more severe with high medical bills and potentially long-lasting residual issues.

Joanna: What should an employer have available for the Adjuster for a COVID claims investigation?

Jill: Well first off, we need the Post-offer Medical Questionnaire on any claim and the reason for that is that preexisting conditions can certainly intensify the symptoms of COVID-19. We also need a timeline addressing a couple of things: First of all, dates of any other individuals that the employee may have come in contact with at the employer’s facility that were infected with COVID-19. And secondly, precautions that the employer has put in place to keep employees COVID free including dates that these precautions were put into place, if there was any problems with having enough PPE, and whether or not the injured worker was compliant with the precautions. We’ve actually created a worksheet for our employers that will make documentation of this type of thing easier. We also need detailed information regarding the injured worker’s schedule over the past two weeks, and also, from the perspective of the employee’s personal life - any knowledge the employer may have regarding who the injured worker lives with and if they have COVID symptoms, and then also what the employee’s activities are outside of work. For instance, are they following at home orders that may be in effect in their State, or do they have another job, etc.

Joanna: Okay, so as a quick overview, an employer should have their POMQ, an Infection worksheet, their work schedule, your organization’s policies and requirements addressing COVID workplace safety, extra information if they could’ve contracted COVID outside the workplace, and then any activity outside of work hours that the employer is aware of.

Jill: Yes. COVID claims are unlike anything we’ve seen so we are focused on gathering as much information as possible so that we can fully investigate from the very beginning.

Joanna: Okay, what about the sick employee, what should an employer do for them?

Jill: Well, it’s our recommendation that someone from the employer contact the injured worker regularly to check on their healing progress and let us know if you learn anything alarming about their progress. It’s a really scary time for everyone, and we need to reach out to those affected to help them get through the sickness.

Joanna: This is all great information Jill, thank you so much for sharing with us. We’ll dive into more detailed topics in the future and for our listeners, if you have specific questions that were not covered in our discussion today, please send an email to info@synergyinsurance.net. Please stay tuned for additional podcasts from Synergy on this ever-changing topic and stay well!