Keenan Briefings

Briefings

COVID-19: Workers’ Compensation Claims Reporting Best Practices Q&A

April 06, 2020

On March 27, 2020, the Centers for Disease Control and Prevention (CDC) projected the number of COVID-19 cases in California may peak approximately April 24, 2020.

While the issues and circumstances around COVID-19 continue to evolve, the following information is intended to provide our clients with current best practices as they relate to your workers’ compensation program. This best practices document should not replace information from the CDC or the California Department of Public Health (CDPH) for the most current information about COVID-19.

Should you have questions beyond what is covered here, please contact your Keenan Risk Management Analyst. Questions regarding specific claims should be directed to your Claims Examiner.

  • Is an exposure to COVID-19 considered industrial?
    • Exposure is not an injury.
    • A workers’ compensation injury or disease must involve the need for treatment and disability (LC3208.1).
    • Additionally, once there is an injury, compensability must be found in order to provide workers’ compensation benefits (LC 4060).
    • Like the common cold or the flu, the coronavirus is likely to be considered a non-occupational disease unless the employment put the employee at greater risk than the general public and the employee contracted the coronavirus in the course and scope of his or her employment.
  • When should a claim form (DWC-1) be provided to an employee?
    • Under current law, an employer is not required to provide an Employee Claim Form (DWC-1) for COVID-19 (Honeywell vs. WCAB 2005).
    • Generally speaking, the employee must ask for a claim form or tell the employer they believe COVID-19 was contracted as a result of their employment in order to trigger the duty to provide a claim form:
      • Within one working day of receiving notice or knowledge of an injury that results in lost time beyond the employee’s shift or that results in medical treatment beyond first aid (LC5401(a))
      • Within one working day of being notified by an employee that they believe to have suffered an injury (LC5401(a))
    • Upon receipt of a medical report or any other information, from any source, documenting the COVID-19 virus was contracted at work.
  • During the Stay at Home Order, some employees must report for work as they are considered part of the “essential staff.” If a claim is filed for COVID-19, how will it be determined whether the employee contracted the virus while in the course of their employment at work or somewhere unrelated to their employment?
    • If a claim form (DWC-1) is filed, each claim will be evaluated based on its individual merits.
    • Our claims professionals will conduct a thorough review of the claim details to determine if there is an injury and if there is compensability under the California laws for workers’ compensation.
  • Will COVID-19 exposure be treated as a presumption for safety and law enforcement positions under workers’ compensation?
    • COVID-19 is currently not included as presumptive industrial injury at this time.
  • Does an employee have to test positive for COVID-19 before filing a claim?
    • No. An employee can file at any time they feel they have suffered a work-related injury.
    • Our claims professionals will conduct a thorough review of the claim details to determine if there is an injury.
    • A positive test for COVID-19 in itself does not qualify for the definition of an injury under workers’ compensation laws. The injury must cause need for medical treatment and disability.
  • When should an employee be referred to the designated frontline provider, or to contact Company Nurse?
    • When an employee is claiming an injury as a result of their employment.
  • If/when Company Nurse is contacted by an employee claiming an injury from COVID-19, as a result of employment, what protocol does Company Nurse follow in referring the employee for medical care?
    • Each call will be triaged using Airborne Exposure medical guidelines to identify possible exposure and to determine if medical care is needed and the appropriate level of care depending upon the employee’s symptoms (no medical treatment, self-care, referral for treatment or directed to an emergency room).
    • Under current guidelines, unless an individual is symptomatic, it is not recommended that they be evaluated by a medical professional. See “When should an employee get tested for COVID-19?” below.
    • If non-emergency medical treatment is warranted, the employee will be referred to the designated frontline provider. In some situations, the employee may be referred to their personal physician.
  • If a workers’ compensation claim should be filed alleging an injury as a result of exposure to COVID-19, what is the process?
    • The process for handling a claim related to COVID-19 would be no different than any other claim.
    • Exposure, or testing positive for COVID-19, does not necessary result in a compensable workers’ compensation claim.
    • In many cases, an investigation will need to be conducted to determine if there is an injury or illness and if there is industrial causation.
    • The employee may receive a “delay in benefits” notice during which time no Temporary Disability benefits would be paid but medical treatment will be provided, up to $10,000 (LC5402(c)).
    • Upon completion of the investigation, the claim will be either accepted or denied. This can take up to 90 days (LC 5402).
  • Are workers’ compensation Temporary Disability benefits available for employees that are unable to work as a result of being exposed, or testing positive to COVID-19?
    • Exposure to COVID-19 may not result in an injury (lost time and/or medical treatment beyond first aid) and may not be the result of employment.
    • Temporary Disability benefits are owed only where there is a compensable workers’ compensation injury and where there is medical evidence to support the need to be off work.
    • The California Department of Public Health (CDPH) provides information on their website (https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx) to help employees apply for benefits they may be entitled to, including:
      • Disability Insurance (DI) claim
      • Paid Family Leave (PFL)
  • Are Temporary Disability benefits provided to employees who are asked to quarantine?
    • Consideration should be given to whether the employee can work from home. With the current “Safer at Home” Executive Orders, the majority of California’s workforce is working remotely.
    • Employers are not required to provide workers’ compensation benefits to an employee who is sent home during the quarantine period (Aromas vs. WCAB 1987).
    • An injury must cause disability or the need for medical treatment (LC3208.1).
  • When should an employee get tested for COVID-19?
  • Why won’t a workers’ compensation frontline provider test for COVID-19?
    • Testing resources in the United States lag far behind demand with testing often reserved for those that are symptomatic to help with treatment decisions.
    • Testing technology and availability may be rapidly changing. Please consult the CDC and/or the CDPH websites for the most current information.
    • Employees that feel they should be tested should be encouraged to contact their personal physician.
  • What should an employer do if an employee tests positive for COVID-19?
  • For injured workers who were working modified duties prior to the school closures for COVID-19 and now find themselves not working, are they entitled to Temporary Disability benefits?
    • Benefits should follow the district’s policy for payment of salary for all employees during the COVID-19 event.
    • Benefits should continue and be consistent for all employees, so that the employer is not treating individuals differently.
    • Benefit information should be shared with your claims team so that we can properly document our files on the continuation of salary or other benefits. This is especially important for our claims team to have this information in our file at such time it is needed for a state audit, such as the DWC PAR audit. DWC PAR auditors have asked for confirmation of salary paid to injured workers via payroll records.
  • For injured workers who are on direct payment of Temporary Disability, will those benefits continue?
    • Yes, Temporary Disability will continue to be paid unless the employer is paying the employee their full salary.
    • As we know, many physicians have cancelled or postponed in-person follow up appointments during the “Safer at Home” mandate. We will continue to pay Temporary Disability as reasonable for injured workers to obtain necessary treatment and for physicians to determine ongoing Temporary Disability, possibly through telehealth options.

References


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.