Are workers getting workers' compensation for work-related COVID-19 illness?

27 Jul, 2020 Terry Bogyo

                               

Workers contracting the COVID-19 virus in the course of their employment are claiming workers’ compensation.  Just how many workers’ compensation claims for work-related coronavirus disability have been filed to date is not reported in most jurisdictions but a few recent reports provide some insight into what may be a significant class of ongoing workers’ compensation claims.

Health care workers are filing and receiving workers’ compensation claims

It is no surprise that those on the front lines of treating those infected with the COVID-19 virus will be at elevated risk of contracting this disease.  Some doctors, nurses, healthcare attendants and personal care aides as well as cleaners and other personnel working in close contact with the sick are contracting COVID-19 despite administrative controls and personal protective equipment (PPE).

Washington state was hit early and hard with COVID-19.  Acute care centres and long-term care homes became the epicenter of serious and fatal outbreaks of the virus. Work-related COVID-19 claims followed.  Reported data from Washington state’s exclusive state fund shows Washington State’s Department of Labor and Industries (L&I):

 
“ … began taking COVID-19-related [workers’ compensation] claims on March 1, …. Since then, 1,074 total claims were filed statewide by May 20, and 931 of them were accepted, according to the data…Nearly 85% of workers’ compensation claims related to COVID-19 filed from Whatcom and Skagit counties were from healthcare workers…” [Denver Pratt, “Healthcare workers make up majority of COVID-19 workers’ comp claims in Whatcom, Skagit”, Bellingham Harold, May 27, 2020 ].


Claims are being filed beyond the healthcare sector

Just north of Washington State, the Canadian province of British Columbia was similarly hit early with cases of coronavirus.  Again, acute care and long-term care centres have experienced dozens of outbreaks resulting in infections and deaths of both residents and staff in these congregate settings.  Work-related COVID-19 infections also spread in settings outside of health care.   As in many other jurisdictions, prisons and food processing plants have also experienced significant COVID-19 outbreaks in BC.

The exclusive workers’ compensation insurer in the province, WorkSafeBC reports: 

Ind. classification unit Industry subsector Claims registered
Acute Care Health Care and Social Services 173
Long-Term Care Health Care and Social Services 64
Ornamental Nursery or Floral Field Production Agriculture 23
Residential Social 
Service Facility
Health Care and Social Services 15
Pre-hospital Emergency Health Care Health Care and Social Services 14
Local Government and Related Operations Public Administration 12
Daycare Centre, 
Preschool, or Playschool
Other Services (nes) 12
Community Health Support Services Health Care and Social Services 10
Physician Professional Services Health Care and Social Services 9
Pulp and Paper Mill Wood and Paper Products 7
Supermarket Retail 7
Law Enforcement Public Administration 7
Outdoor Sport Tour Accommodation, Food, and Leisure Services 7
Retirement Home or Seniors' Home (accommodation only) Health Care and Social Services 7
Commercial Cleaning 
or Janitorial Services
Other Services (nes) 5
Security or Patrol 
Services
Other Services (nes) 5

[WorkSafeBC, COVID-19 claims data by industry, (as of May 27, 2020)]

These data reflect a much broader range of industries where workers have filed claims.  These may still be early days and the table above only reflects classification units with 5 or more claims registered.  The table illustrates that workers in a broad range of industrial and occupational situations are contracting this disease and becoming disabled.

Not all claims accepted … or accepted yet

Before a workers’ compensation claim for COVID-19, the workers’ compensation insurer must receive a claim.  Although reporting the injury or illness to the employer directly may be a requirement, most jurisdictions allow a year or more for a claim to be registered with the workers’ compensation insurer.  The one-year timeframe is common but there are both shorter and longer windows for filing a workers’ compensation claim.   Nevada allows just 90 days from the discovery of an occupational illness; Pennsylvania allows 300 weeks from the last exposure.  These early reports from Washington and British Columbia, therefore, should not be reflective of all the cases that might eventually result in workers’ compensation claims. 

Once a claim is registered, the workers’ compensation adjudication process kicks in. Among the questions that must be determined are the following:

  • Is this claim from a “worker” as defined by legislation or policy?
  • Is the claim work-related?


Focusing only on medically established cases of COVID-19 infection, not every claim registered with the workers’ compensation claim will result in an accepted workers’ compensation claim.  If the person filing the claim is not covered by the workers’ compensation legislation or policy, the workers’ compensation insurer has no jurisdiction and the claim will be rejected.  If the worker is covered, but the COVID-19 infection was not work-related, then the claim may be denied (or “disallowed” in some jurisdictions).  This determination is often lengthy and may involve the weighing of evidence concerning the work-relatedness of the disease. 
Some jurisdictions have put in place “presumptions” regarding COVID-19; if a worker is in an essential occupation and contracts COVID-19, the infection will be considered work-related unless the presumption is rebutted by other evidence.  Presumptions serve several purposes.  They simplify and often shorten the adjudicative process for the workers’ compensation insurer. Presumptive clauses may improve consistency of decision making and reduce the administrative time and effort at determining work-relatedness on every claim.  That is not to say individual claims adjudication won’t arrive at the same conclusion; a presumption may obviate the need to gather and weigh scientific and medical evidence repeatedly. Presumptions may also shift the onus of proof away from the worker.  The announcement of a presumption also raises awareness of the risk and possibility of claiming workers’ compensation.  The downside of presumptions, however, may result in the acceptance of some claims that are not truly work related.  The converse is also true:  the lack of a presumption may result in workers actually disabled or killed by the work-related COVID-19 will not result in an accepted workers’ compensation claim.

When will we know the true extent of work-related COVID-19 workers’ compensation claims?

These are early days of a pandemic.  It will be years before all of the cases of work-related COVID-19 that have occurred to date are filed, adjudicated and accepted.  That said, the early data provides some evidence of just how many workers may have entitlement to worker’ compensation for their work-related COVID-19 illness, disability or death.

WorkSafeBC reports far fewer claim filings to date than Washington state.  Of the 514 claims filed as of May 27, 2020, 186 have been allowed.  Two-thirds of these allowed claims arose from the healthcare sector. About a third of claims have been disallowed or rejected with about the same proportion either pending or suspended, often awaiting additional information.

The differences in reported and accepted claims between two jurisdictions of similar size, economic structure, and geography are likely not relevant at this time.  The development of the pandemic in these two jurisdictions has been very different.  The sectors impacted overlap but are not the same.  That said, data from both jurisdictions can highlight the risks workers are facing during this pandemic.

Is a coronavirus COVID-19 infection reportable

It should be noted that Washington State and British Columbia have exclusive workers’ compensation agencies.  Both the Department of Labor and Industries in Washington State and WorkSafeBC are also the principal occupational health and safety agency for their respective jurisdictions.  It may be that incidences of work-related COVID-19 are more likely to be reported than in jurisdictions where workers’ compensation is a separate authority.  Regardless of the agency responsible for occupational safety and health, there is a general requirement for work-related COVID-19 cases to be recorded or reported.

In the US, the Occupational Safety and Health Administration (OSHA) reporting standards would require a COVID-19 illness be recorded in OSHA 300 logs.  In a May 19 Enforcement Memo, OSHA [see Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)]  revised its reporting requirements specifically for COVID-19, noting:

 
Accordingly, until further notice, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the guidelines below. Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.


The standard does not apply to employers with 10 or fewer employees and certain employers in low hazard industries.  That said, all employers have a duty to investigate reported injuries and illnesses regardless of any reporting requirement.  As noted in my previous post, contact tracing is going to be an important factor in determining work-relatedness [see Should workplace health and safety go back to “normal”?].  All jurisdictions require an employer to consider an injury or illness to be work-related if an event or exposure in the workplace either caused or contributed to the resulting condition.  COVID-19 falls clearly in this category.

Employers may fear reporting a work-related injury or disease because of possible detection of a safety or health violation. Employers may also be unaware of their obligations or the protections offered by workers’ compensation.  Workers are typically obligated to report work-related injuries or diseases to the employer but may not always file a claim for a variety of reasons including fear of reprisals from the employer, a lack of understanding of their rights, and the loss of earnings not covered by workers’ compensation.

Removing barriers to filing a claim for work-related COVID-19

Many workers and employers are not fully aware of the potential for a workers’ compensation claim related to COVID-19.  This barrier is addressed to some degree by agency promotion and open source reporting illustrating accepted workers’ compensation claims. 

There are many barriers to receiving workers’ compensation [see  Why aren’t all time-loss work injuries compensated?].  Some barriers relate to misperceptions.  Workers may fear filing a claim will hurt their employer at a time when businesses are suffering. Employers may similarly worry about the impact COVID-19 claims will have on their premiums.  To address this barrier, some workers’ compensation boards have differed premiums, exempted payroll protection or emergency wage benefits from premiums, or addressed the experience rating of premiums.  Nova Scotia’s Workers’ Compensation Board announced that, “Employers who have front-line workers contract COVID-19 due to their work will not have the costs of those workplace injury insurance claims impact their industry rate or individual experience rating…”.  Instead of the COVID-19 claim costs being included in calculation of experience rating, the costs will be pooled across the overall employer base.  [see Nova Scotia, Workers’ Compensation Board , “WCB Nova Scotia announces further support for employers during COVID-19”, NS WCB News,  (May 29/20)].

Employers and workers may also be unaware of the exclusive remedy workers’ compensation provides.  In almost all jurisdictions in North America, workers’ compensation protects employers from being sued by workers harmed in the course of and out of the duties related to their employment.  The few exceptions relate to employer actions that amount to deliberate or egregious disregard for a worker’s heath or safety.  Although certain states do not permit such actions (Alabama, Georgia, Indiana, Maine, Nebraska, New Hampshire, Pennsylvania, Rhode Island, Virginia, and Wyoming), the threshold of proof in those that do is extremely high.  Workers’ compensation is a no-fault system and effectively shields the employer (and other workers) from being sued by workers with work-related injury or disease.

More data needed

Accepted workers’ compensation claims are a trailing indicator at best.  The timeliness and transparency of workers’ compensation claims data for COVID-19 claims are important.  While it may take years to fully assess the impact of this disease on workers and workplaces, the knowledge of the occupations and sectors at risk can better inform prevention activities and awareness of hazards.  Data on claims reported, accepted and denied inform workers, employers and policy makers.  Just as important are process times; knowing how long it takes for cases to be reported, claims registered, determinations made and payments issued are essential to policy makers, employers, workers and their families.


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