COVID-19 and Workers' Compensation in 2022: Legislative Update and Clearing Presumption of Coverage Hurdles

After two years, COVID-19 continues to impact workers’ compensation claims. In previous entries, we provided a broad look at the industry. As we learn more about the long-term effects of the pandemic on claims operations, we want to explore some of these topics in greater depth through the coming months. In this series, we will cover:

• The great resignation and talent gap issues in the workforce
• Shifting care utilization trends and their impact on workers’ compensation claims
• How an increase in fraud claims combined with a backlog from court closures impact claims resolution timelines

To start the series off, we will provide an update on the legislative landscape of workers’ compensation across the country and some of the challenges this new legislation presents in claims processing and operations.

The COVID-19 Workers’ Compensation Legislative Landscape

When I wrote about this subject last year, a little more than a dozen states had changed their workers’ compensation laws during the pandemic. The National Conference of State Legislatures earlier this year updated that number to 28 states and Puerto Rico, with 11 states creating a presumption of coverage for various types of workers. As the NCSL also mentions, there were other presumption policies put in place by executive order, but many of those orders have expired due to the state of emergency surrounding the pandemic expiring in those states.

The presumption of coverage places the burden of rebutting a claim on the employer in these cases. Ideally, the state laws will lay out the kinds of proof needed to rebut the COVID-19 presumption. California’s law, for example, outlines the following potential evidence for rebuttal:

• Evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment
• Evidence of an employee’s nonoccupational risks of COVID-19 infectio

However, some state COVID-19 presumption laws do not provide judges with guidance on the types of evidence serve to rebut a presumption. Defense Attorney John Geaney points out that the precise language of the law can, in some instances, help with addressing rebuttable presumption, citing New Jersey’s statute: “This prima facie presumption may be rebutted by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.”

Challenging a Presumption of Coverage

Even when guidance is offered, disproving a workers’ comp claim may present additional hurdles in appeals. In an ordinary claim’s proceedings, only the claimant’s medical condition would be considered. A COVID-19 case instead could hinge on the medical history of a third party (and nonparty to the claim) in close contact with the claimant.

Without proof that such a third party was COVID-19-positive, it may be difficult to disprove the claim. The HHS guidelines for Disclosure for Worker’s Compensation Purposes do not currently address such third-party medical information, making it unclear what the best legal avenues are to obtain this potentially critical information.

Long COVID and Subsequent Infections

If a workers’ compensation claim is accepted and benefits are approved, determining the length and overall cost presents a new set of challenges. As with other claims, the burden of proof for permanent partial disability rests on the employee. “Long COVID” (or post-COVID conditions) can impact an employee, but data is still developing on how long these conditions can last in patients.

Second (or third) COVID-19 infections can also impact the overall price of a claim. If an employee has a workers’ compensation claim against their employer and contracts COVID-19 again prior to a medical evaluation, the value of the claim could be lowered. For this reason, complete medical treatment records need to be obtained to build a comprehensive overview of the case.

Staying ahead of claims challenges

Insurers have many challenges awaiting them when it comes to COVID-19 workers’ compensation claims and, even in the third year of the pandemic, we still don’t have a complete picture of how these claims will be resolved. It’s important for claims teams to have up-to-date information on how cases are being decided.

By Adam Wesson

Courtesy of Verisk

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