Keenan Briefings


COVID-19 Update: Changes to Workers’ Compensation Programs

March 31, 2020

In the last few days, the California Department of Industrial Relations (DIR) has made several changes relevant to workers’ compensation programs in response to the COVID-19 emergency.

COVID-19 Coding Compliance:

On March 27, 2020 the DIR announced new nature and cause of injury codes for COVID-19 claims reporting. The WCIS reporting system has been modified to accept the following new codes:

  • Nature of Injury – 83 (COVID-19) for FROI DN 35
  • Cause of Injury – 83 (Pandemic) for FROI DN 37

Keenan has already implemented these codes for clients for who it performs WCIS reporting, which includes FROI/SROI (First Reports of Injury/Subsequent Reports of Injury and medical EDI records).

Medical Evaluations & Telehealth Options:

On March 28, 2020, the DIR Division of Workers’ Compensation (DWC) issued emergency measures for medical-legal evaluations during Governor Newsom’s “stay-at-home” order. The guidance noted that the DWC will reevaluate these emergency measures at the end of April.

The DWC’s notice encourages primary treating physicians to continue to manage injured workers’ care through telehealth options (including remote visits via video-conferencing, video-calling or similar such technology that allows each party to see each other via a video connection) whenever medically appropriate. The DWC states that these are viable alternatives to in-person physical examinations for medical-legal evaluations.

The DWC also urges all parties to work together with the primary treating physician to anticipate and resolve any potential disputes that may result from a request for medical-legal evaluation by a Qualified Medical Evaluator (QME).

The guidance states that during the stay-at-home order (up to May 1, 2020), it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary. The DWC strongly recommends that all of the following conditions apply to a telehealth evaluation to promote the health and safety of all parties:

  1. The injured worker is able to participate in the telehealth evaluation without violating the stay-at-home order.
  2. The medical issue in dispute is determined to be essential to an injured worker’s benefits and must be addressed no later than May 1, 2020. The dispute must involve:
    1. An evaluation relating to whether or not the injury is Arising Out of Employment/Course of Employment (AOE/COE);
    2. Termination of an injured worker’s indemnity benefit payments; or
    3. Work restrictions.
  3. There is written agreement of the injured worker, carrier or employer, and the QME.
  4. The telehealth evaluation is consistent with appropriate medical practices and ethical considerations.
  5. The QME attests that the evaluation of the injured worker can be done effectively and safely by way of a telehealth evaluation and does not require an in-person physical examination.

The guidance also encourages all parties to evaluate whether medical-legal evaluations (which involve in-person physical evaluations) should be cancelled or postponed as part of the stay-at-home response to COVID-19. In some instances, a reasonable interpretation of compliance with the stay-at-home order could mean that medical-legal, face-to-face evaluations, should be postponed or canceled, if it requires the injured worker or others to travel and interact with anyone outside of their immediate household.

The DWC guidance cautions that the decision as to when a telehealth visit can be employed must rest on the principles of appropriate and ethical medical practice. An in-person physical examination is necessary if the injured employee’s relevant health issues are such that a physical examination done in person has significant likelihood to contribute to the examiner’s ability to formulate an accurate diagnosis, or to more accurately gauge the outcome of treatment already provided. In such an instance, parties should evaluate whether the evaluation can be cancelled or postponed. If such circumstances do not require an in-person examination, then a telehealth visit should be allowed.

Finally, the DWC guidance states that it understands that strict adherence to the time limits for scheduling, canceling or rescheduling a medical-legal evaluation, or for serving a medical-legal report, may be impractical or impossible during this public health crisis. During the month of April, the DWC encourages parties to agree upon reasonable allowances and agreements.

The issue of whether a medical-legal report is admissible or constitutes substantial medical evidence will still be determined in accordance with applicable laws and is not altered by these emergency measures.

Keenan’s Commitment:

Keenan understands the challenges we face during this unprecedent time and we are committed to the health and well-being of injured workers. We are taking reasonable measure to ensure we do not hinder or delay the delivery of benefits to injured workers. We agree with the recommendations outlined by DWC regarding the use of non-conventional medical protocols to provide medical treatment through telehealth options. Furthermore, we will work collaboratively with all parties to address medical-legal issues in a productive and progressive fashion, to ensure continuity of care.

We know that many physicians have cancelled or postponed in-person follow up appointments during the “Safer at Home” mandate. For those injured workers on TD, we will continue to timely pay benefits as reasonable and as determined by their physicians as well as provide access to necessary treatment likely through telehealth options.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.