Occupational Disease Claims in the COVID-19 EnvironmentAdded by Mark C. Peterson in Articles & Publications, Employment Law, News on March 27, 2020
The following addresses issues relevant to employers and sureties concerning COVID-19 and Idaho’s workers’ compensation claims. This analysis focuses on some issues pertaining to the incurrence of the virus itself and return to work challenges because of associated work stoppages. Keep in mind that COVID-19 pandemic presents workers’ compensation issues that are unprecedented and changing law, regulations, and government directives impact potential outcomes.
Compensability of COVID-19 as an occupational disease.
Conditions such as colds, flus, and contracting other viruses such as COVID-19 are not in most cases considered industrial conditions because the hazards of contracting are “common to the public in general” and are not “peculiar” to the nature of one’s occupation. Idaho Code Sections 72-102(22)(a), 72-438. Occupations that have an increased likelihood of contracting the condition fall outside this general rule because they have an increased risk of exposure peculiar to the employment. Employees involved with direct patient care, who work in a hospital or clinic setting, or any other setting that has an increased risk of exposure would likely meet the threshold.
The complication that is unique to COVID-19, and could be a fluid analysis, is the notion that being required to work at all in a position that has direct interactions with the public, or fellow employees, would potentially be employment that meets these criteria. It is difficult to forecast how far the Industrial Commission and Courts would go as it relates to this issue.
Considering the March 25 order from the Governor stating that all employees are to stay home with the exception of “essential” workers would make a stronger argument that workers who are considered “essential” and are required to closely work with the public and employees would potentially be an employee facing a hazard not common to the public and peculiar to employment. Again, this is an unprecedented circumstance so case law can only be a guide in many situations such as outlined below.
- Absent some change in the law, an employee must actually test positive for COVID-19 or otherwise be definitively diagnosed with the virus in order to meet the basic requirement of an occupational disease.
- An employee who is not symptomatic, but is sent home generally because of COVID-19 does not have a viable occupational disease claim.
- An employee who does have symptoms that could potentially be a sign of COVID-19, but tests negative for the virus does not have a viable claim.
- An employee who has symptoms, but is never tested for the virus would only potentially meet criteria if a medical provider determines the employee definitively contracted the virus without having the benefit of testing.
- If an employee is symptomatic for COVID-19 and alleges it is work-related, or the employer has a basis to reasonably believe it is, there is support for the proposition that the employer/surety has an obligation to attempt to facilitate consultation with a medical professional. To the extent the employee meets current testing under the CDC and Public Health criteria, the determination of that test would determine whether the virus was contracted. The lack of availability of tests could raise the issue of diagnosis without a test or delay ultimate testing to confirm the virus.
Importantly, even if the employment of the employee meets the criteria of “peculiar” employment with a higher risk, the worker still has the burden of demonstrating the likelihood that the contraction of COVID-19 was “actually incurred in the employer’s employment.” Idaho Code Section 72-439. This would be a case by case analysis. The employee would need to demonstrate that he or she incurred the virus in the course and scope of employment. In many cases, it may not be difficult for an employee to demonstrate this if they credibly state that they are self-isolating when not working. On the other hand, factors of protective equipment at work, contraction by other employees or customers, and the employee’s activities and exposures outside of work would all be relevant to that analysis.
Return to work issues in light of COVID-19
1.What time loss benefits are due to a claimant with an existing claim who is released to return to work light-duty and the employer does not have any light-duty available because it is not currently allowed to operate because of COVID-19 restrictions or due to the economic impact of COVID-19?
The answer to this question could be impacted by legislation that has been or will be passed by the Federal or State government. It could have a practical impact in terms of payment of wages that could guide the action of the employer regarding the employment status of the employer. The analysis here is based upon Idaho’s workers’ compensation law without consideration of what obligations or incentives the employer may have based upon other law.
With that important caveat, an employer/surety in this situation is generally required to pay time loss. During a claimant’s period of recovery, and until it reaches medical stability, the claimant is entitled to time loss benefits “unless and until” the employer issues a bona fide job offer within the restrictions. The reason why the employer is not able to offer light-duty work is not considered material. This can be particularly troublesome where a claimant has minimal modified duty restrictions that could normally be easily accommodated but is going to be still in a “period of recovery” for the next several weeks or months.
The exception to this rule is if the employer can credibly show work is readily available to the claimant in the general labor market. This exception is many times difficult to demonstrate and can take time and expense to do so. In some situations, the Commission’s rehabilitation division may provide labor market information and statements specific to the claimant in order to meet this burden, although many times the information is not specific enough to provide a good faith basis to trigger this exception. Another option to the employer is to utilize a vocational expert to address whether work is available within the modified duty restrictions. The challenge is it can take considerable time and expense to get a vocational expert to provide an opinion on this issue.
Although beyond a workers’ compensation analysis and would be specific to each employer, the employer may have creative options to accommodate the employee off-site in a different capacity to trigger taking advantage of employment incentives to the extent doing so complies with the limitations of those laws.
2. If a claimant in a period of recovery refuses to go to the doctor due to COVID-19 contamination fears, is the claimant still entitled to time loss benefits? What if it is an IME?
Idaho Code 72-435 governs the first question. If a claimant “persists in unsanitary or unreasonable practices which tend to imperil or retard his recovery the commission may order the compensation of such employee to be suspended or reduced.” Unreasonably failing to follow-up with a treating physician who has recommended a follow-up or other care could trigger this provision. However, even if the answer to that question in our view is yes, the employer/surety would have to get the Commission to order the compensation suspended in order to cut off benefits, which would take at least a couple of months in normal situations. The employer/surety can reach out to the treating physician and address medical stability in light of the lack of follow-up. If the claimant is medically stable, no time loss benefits are owed.
This second question concerning IME’s is governed by Idaho Code 72-434. Under this statute, if the employee “unreasonably” refuses to attend the examination, the adjuster handling the claim can unilaterally suspend any benefits until and unless the claimant submits to the exam. Whether a claimant’s refusal is ultimately considered reasonable or not is an issue the Industrial Commission would ultimately determine, but the adjuster has the authority to suspend benefits under the parameters of the statute.
There are multiple other workers’ compensation issues that COVID-19 raises that are not addressed here. For example there is much speculation about the economic impact of COVID-19 and disability claims. This issue and others remain unknown and will depend, in part, upon the long-term impact of COVID-19.
This Client Update has been prepared by Hawley Troxell Ennis & Hawley, LLP for informational purposes only and is not legal advice, a legal opinion or counsel. Readers receiving information through this Client Update should not act on or rely on it without consulting professional legal counsel. Any such opinions, advice or counsel are dependent upon the application of the law to the particular facts and circumstances of any given situation, and should be given by a licensed attorney in the exercise of his or her professional judgment only after the establishment of an attorney-client relationship and based upon the exercise of the attorney’s professional judgment after consideration of such facts and circumstances. The furnishing of this Client Update does not constitute or give rise to an attorney-client relationship.
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