WC Pros Ponder Upsides, Downsides of Pandemic

Sarasota, FL (WorkersCompensation.com) – Workers’ compensation presumption measures, the gig economy and election 2020 are among the top-of-mind concerns among industry stakeholders. Six experts representing the regulatory, industry and legal aspects of the system shared their insights and predictions in a panel discussion during the Southern Association of Workers’ Compensation Administrators’ virtual All Committee Conference. Moderated by WorkersCompensation.com's President & Ceo Bob Wilson, Things That Make Bob Go 'Hmm' was the closing session.

The speakers generally agreed the industry has fared well during the COVID-19 pandemic, despite some initial hiccups. In some ways, things have even improved. In Texas, for example, a program to transition employees to laptops was nearly complete when the pandemic hit.

“We picked up our computers and went home. We had no lapse in providing customer service,” said Cassie Brown, commissioner of workers’ compensation in Texas. “Our response times were very good to begin with and they have increased — to 18 second wait time. That is super outstanding for us.”

Texas also began providing some 10- and 30-hour OSHA training to construction workers via Zoom. “We’re able to reach the rural areas of the state a lot better than in the past,” Brown added.

In Washington, difficulties among staff in talking with their customers due to the unavailability of the phone queue early on was corrected. “It’s much smoother now,” said Vickie Kennedy, Washington’s assistant director of Insurance Services. “Our performance measures — some are better than before.”

The pandemic has fostered improved communications among plaintiff and defense attorneys, said Paul H. Sighinolfi, senior managing director of Ametros and former executive director/chairman of the Maine Workers’ Compensation Board.

“The other interesting thing from an insurance perspective is that we’re seeing cases settle — we handle cases after they settle. We’re seeing cases settle now that would be broadly characterized as the legacy cases,” Sighinolfi said. “It seems to be that what is happening is the adjuster community is looking at cases they really haven’t looked at in depth in the past. They’ve got these cases on their inventory, they’ve been paying for them, [now saying] ‘let’s figure out what we can do with them and move them forward’ and they’ve settled a lot of old legacy cases.”

Gig Economy, Presumptions, Etc.

One concern among the stakeholders is the unintended consequences of well-intentioned actions, by lawmakers and the voting public. California’s passage of Proposition 22, for example, upended Assembly Bill 5 which had made many workers employees rather than independent contractors, entitling them to various benefits including workers’ compensation coverage. While that shows representative democracy is alive and well, there may be an unexpected downside.

“The downside in the participatory model is that you have people who maybe don’t have expertise in terms of drafting [the language] and looking at the implications and passed what they want passed,” said Judge David Langham, deputy chief judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. “A lot of folks have voted for their freedom to be independent contractors, but I’m not sure those people truly understand what they’ve given up in terms of protecting their own personal rights as employees and their right to income and their right to participate in some of those decisions.”

There’s a similar concern about the presumptions passed or ordered in various states, that provide an easy path to benefits for certain workers who contract the coronavirus. The problem, the panelists said, is that presumptions in general may be unfair in that they include only some workers. A presumption in Florida for certain workers who develop Post Traumatic Stress Disorder would have allowed benefits for a police officer who remained outside a high school in Parkland, Fla., while teachers inside who hid with children as a gunman killed 17 people would have received no benefits.

“I do think it is creating a serious dichotomy between those that get benefits and those that are going to be the rest of us,” Langham said. “I think to some extent these things have slipped into the law with good intention but perhaps a lot of folks don’t really understand what’s being slipped in the law, what that’s doing to us in terms of equal protection and the contracts clause in the Constitution and other protections.” 

Nevertheless, presumptions related to the coronavirus continue to be considered by various jurisdictions. “We start our next legislative session in January; bill filing started Nov. 9. So far there have been 6 bills filed in the Texas legislature expanding presumptions related to COVID-19,” said Brown.

So far, Washington does not have a COVID-19 -related presumption. But Kennedy said she wouldn’t be surprised if one is proposed. “That’s when I get nervous because now we’re talking about communicable diseases. And how far will that ultimately go for workers’ compensation generally if we’re now obligated to presumptively cover those either in certain industries or across the board.”

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