COVID-19Workers' Compenstation

What you need to know about workplace exposure

By April 9, 2020 No Comments

Following is a summary of my thoughts on the COVID-19 outbreak, claims filed as a result of alleged workplace exposure and the delay period for treatment and investigation upon filing of the claim. I also present some relevant Labor Code and Code of Regulation provisions, and a brief assessment of the timeliness of an investigation during the delay period. This is by no means a complete assessment, as it is merely a birds-eye view of this unique situation.

CLAIM DELAY AND LABOR CODE/CCR SUMMARY

The relevant Labor Code and Code of Regulation provisions are as follows:

Labor Code §5401 (in part):

(a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits under this division to the injured employee, or in the case of death, to his or her dependents.

Labor Code §5402 (in part):

(a) Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.

(b) If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period.

(c) Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000.00).

Labor Code §4610(i) addresses timeframes for UR determinations. This subsection also addresses prospective and current requests as well as addressing retrospectively. An emergency situation could result in any of these types of requests and further, requires a shorter timeframe for response of 72 hours in the event the condition is an imminent and serious threat.

8 CCR §9812 indicates in part that indemnity benefits are due within 14 days of the employer date of knowledge. In the event the claim is placed on delay, a delay notice shall be issued informing the employee that discovery is needed and the claim is on delay.

8 CCR §9767.5(f) requires that for non-emergency services, the MPN shall ensure that an appointment for the first treatment visit under the MPN is available within three business days of a covered employee’s notice to an MPN medical access assistant that treatment is needed.

8 CCR §9767.1 addresses the definition of emergency services.

8 CCR §9767.5 address in part, access standards for injured worker for emergency services.

INJURY

In general, an illness that arises from COVID-19 exposure will need to meet both elements below to be considered compensable and result in WC benefit eligibility:

  1. Illness must arise out of the course and scope of employment.
  2. Illness must arise out of or be caused by conditions particular to the work and not an ordinary disease of life to which the general public is exposed.

In the case of COVID-19, it is critical to understand the unique job that an employee was performing if/when exposed. Healthcare professionals, first responders (EMT), hospital workers, and lab technicians often have a lower threshold for connecting the cause/source to the course and scope of their work. As you are aware, once a claim has been reported, it can be placed in a delay status, which affords the applicant the opportunity for treatment up to $10,000.00 while the claim is on delay. My particular conversation largely resolved around the need for timely investigation of potential COVID-19 exposure cases. In many instances, the emergency services rendered for an individual suffering from symptoms could consist of anywhere from a basic physician visit, to Emergency Room visits complete with medications and diagnostic studies, all the way up to the extreme cases of ICU admission, ventilator intubation and even death. Therefore, the $10,000.00 treatment allowance could be met and exceeded very quickly.

Many potential scenarios have been posed by clients, which prompted this memo. First, a scenario was posed where an applicant alleged a workplace injury due to COVID-19 exposure, timely and properly reports the claim and seeks out medical treatment within in the MPN. In that particular scenario, assuming an evaluation is timely set with an appropriate physician and the applicant has only mild symptoms, it will still be a fairly quick progression of medical treatment to hit a $10,000.00 cap. Further, it is possible the cap will be met within 90 days, even if treatment is condensed to a few weeks to a month for recovery.

The applicant would be afforded multiple evaluations. The evaluations would not be spread out 30-45 days as other injuries would afford as monitoring would need to be completed every few days. Testing for COVID-19 will consist of any detection blood test as sanctioned by the US government. This will result in at least one blood draw in addition to the test. Next, there will undoubtedly be multiple diagnostic tests for breathing and airway concerns. Per the US department of Health and Human Services, multiple tests include volume capacity, diffusion capacity, blood gas, pulse oximetry, and an x-ray of the lungs. There will also be general medications dispensed for flu-like symptoms, pain and general comfort. Simple pulmonary testing will run a few thousand dollars in total, along with lab work. Thus, even with mild symptoms and general monitoring, the minimum exposure would be a few thousand dollars.

A second scenario posed was in the event of a timely reporting with serious symptoms requiring emergency services. To add to the scenario above, active ER treatment with breathing assistance and the addition of new medications followed by monitoring post discharge will certainly challenge the $10,000.00 cap.

Finally, as to a scenario in which an applicant requires emergency services and chooses to self-procure as they are unable to wait to report the claim and then have arrangements for medical care made. This would include pursuit for treatment within their own insurance. The Code of Regulations, Labor Code, and caselaw do provide leeway for pursuit of treatment outside of MPN parameters for multiple reasons, including emergency services. I will be happy to expand upon this if called upon. As noted in the regulation sections indicated above, emergency services are considered when addressing MPN compliance and Utilization Review does afford for retrospective review. I have seen many instances in my practice when emergency care was needed. Many employers have a standing protocol that in the event of an emergency, their workers are instructed to seek out emergency care and 911 assistance, with the thought that the care and causation will eventually be sorted out.

What about the psychological component of exposure to COVID-19 and even the thought of being exposed? Clearly, this potential/actual exposure will have a psychological impact on the individual, both immediate and likely long-term. Treatment, even with no impairment due to a compensable consequence injury would only add to the costs both during the delay period and after that time if the claim is ultimately accepted.

INVESTIGATION

With these cost concerns, it is imperative that active discovery and investigation be conducted. Returning to the elements of compensability above, any investigation will need to start with witness statements if available and in particular, a statement of the applicant. This is crucial to determine what the applicant was doing and how that could result in exposure, versus any other activity they would perform outside of work. One particular issue will be if their family was exposed, which lead to their exposure. If they are required to work at home, that brings in a novel question: does exposure from their family equate to a workplace injury, given that their workspace is now in the home?

As this is a summary, the total investigation parameters for this alleged injury will not be discussed in detail. However, the timeliness of the investigation is key as any delay could result in the cap being met fairly quickly. Claims examiners must also be cognizant of requests for care and treatment that strays outside the MPN but which may be considered reasonable when conducting a timely investigation. The overall recommendation is a quick and efficient investigation.

OTHER CONSIDERATIONS

As a side note, the California State Government is encouraging individuals who believe they are exposed and ill to apply for State Disability Insurance through California EDD. They are also encouraging applicants to look into short-term and long-term disability policies that their employer may participate or pay in to. The State website and materials specifically note that Workers’ Compensation claims may take months to determine eligibility, so a quick application is recommended. The State is also recommending filing for Disability Insurance (DI) claims for short-term benefits. These two species of benefits will undoubtedly result in liens to be addressed later. Finally, recent Governors’ Executive Orders waives the one-week unpaid waiting period for DI claims. Therefore, EDD processing will include issuance of payments within a few weeks.

The first order waives the one-week unpaid waiting period, so one can collect DI benefits for the first week they are out of work. If someone are eligible, the EDD processes and issues payments within a few weeks of receiving a claim. There is also an executive order waiving the one week waiting period for Unemployment Insurance (UI) claims, which if received, can at minimum create a requirement to seek out confirmation from UI that they will or will not be pursuing a lien against an accepted Workers’ Compensation claim. Many businesses are reducing hours or shutting down completely, resulting in a rise of these claims being filed.

In conclusion, I hope this addresses some general questions and provides you with a solid summary of some of the applicable Labor Code and Code of Regulation provisions and also gives you some brief insight on the costs for treatment during the claim delay period and the need for a quick investigation.
Again, I am happy to expand on any of these items for you in greater detail and look forward to speaking with you.

Best wishes for good health and safety,