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Workers’ Compensation & Coronavirus/COVID-19

Last updated 3.27.2020 @12:00 pm

 

If an employee claims he contracted the coronavirus in the course of his employment, as a general rule that claim should likely be denied by the employer. There are several exceptions to this general rule which would include health care workers and first responders if they are being exposed to infected people in the course of their employment. In Ohio, a claimant must prove that an occupational disease was contracted in the course of and arising out of employment and that the disease is peculiar to the employment by its causes and the characteristics of its manifestation. In addition, the employment must create a risk of contracting the disease in a greater degree in a different manner than the public generally. That will be a very high standard for most employees as it will be virtually impossible to pinpoint where any exposure to the coronavirus took place. A claimant will still be required to present medical evidence supporting he contracted the coronavirus in the course of his employment. It likely will be hard for any physician to pinpoint where the exposure took place.

The Industrial Commission was deemed an essential business through the Stay at Home Order and will continue business with some changes. On Wednesday, March 18, the Commission began conducting 2 telephone hearings per room every hour for the following issues:

  • Permanent total disability (PTD)
  • Temporary total disability (TTD) or the termination of temporary total disability
  • Wage loss,
  • Allowance and additional allowance

Issues involving alternative dispute resolution, permanent partial disability, calculation of average weekly wage and full weekly wage as well as treatment issues will not be heard presently .

Telephone Hearing Procedure

  • Go to ICON
    • Must upload a document with:
      • Claimant’s Name and Claim Number
      • Hearing Date
      • Assigned Attorney
      • Contact phone number for attorney, client, and witnesses
    • After uploading document must go back to claim documents list and add phone number and document to hearing folder
    • Industrial Commission will call you!

Telephone Hearing Concerns

  • Difficult for cross-examination & evaluating demeanor of witnesses
  • Talking over one another
  • Use of court reporter
  • Playing video evidence

Telephone Hearing Suggestions

  • Have client/ witness on the phone with you when Industrial Commission calls
  • Do NOT allow other side to lead a witness OR testify for client
  • If it becomes clear that due process is being denied, request a continuance at the table and ask the hearing officer to document your request and the reason for your request
  • Assign one attorney to one room
  • Make sure all documents have been timely filed, provided to opposing counsel
  • Have image and page date available for hearing officer and opposing counsel
  • Utilize your computer & ICON during your presentation

IMEs and Documentation

Cancelled Independent Medical Exam (IME): Benefits will not be suspended. Currently, BWC is suspending all IMEs but exploring alternative means of obtaining medical evidence including “virtual” examinations.

Doctor’s office is closed/haven’t completed Medco-14: To minimize the chance of interruption of benefits for injured workers currently receiving temporary total compensation, payments to continue to April 30, 2020.

Unable to complete the job searches: Job searches will be suspended until April 30, 2020 and all forms of wage loss payments (working wage loss/non-working wage loss, living maintenance wage loss) will be continued.

 

Compensation Issues

Temporary Total (TT) Disability: BWC will continue processing additional allowance and TT entitlement requests and seek physician file reviews instead of IMEs when possible. BWC is also exploring alternative means of obtaining medical evidence including “virtual” examinations.

C-92 Applications: Initial applications for permanent partial disability awards must be sent for a Bureau IME. While IMEs are temporarily suspended, BWC is exploring alternative means of obtaining medical evidence including “virtual” examinations.

Participating in a rehab program: To minimize the chance of interruption of benefits for injured workers currently receiving living maintenance compensation, payment plans will continue to April 30, 2020.

Premiums and Enforcement

BWC has suspended face-to-face audits for both SI and SF employers: Paper and virtual audits will continue. Temporary certificates will be issued to SI employers.

The Bureau of workers compensation announced that due to the COVID-19 crisis it will permit deferral of all insurance premium installment payments due for March , April and May of the current policy year until June 1st 2020. On June 1st 2020 this matter will be reconsidered. This applies to both public and private employers. Most importantly the Bureau of Workers Compensation will not lapse coverage or assess penalties for amounts not paid because of the COVID-19 pandemic. The payments over the three month period outlined above total approximately 200 million dollars. The Bureau announcement is silent with regard to self-insured employer assessments.

 

FAQs


Q: How Long Will Telephone Hearings Be In Effect?
A: At least 3 weeks (Probably longer)

Q: What types of hearings will be addressed?

  • Permanent Total Disability
  • Temporary Total Disability
  • Termination of Temporary Total Disability Compensation
  • Wage loss
  • Allowances (Which most likely includes death allowances)
  • Additional Allowances

Q: What types of hearings will NOT be addressed?

  • Alternate Dispute Resolution
  • Permanent Partial Disability
  • AWW & FWW Calculations
  • Treatment

Q: Is Coronavirus/COVID-19 a compensable occupational disease under Ohio’s workers’ compensation?
A: As a general rule, exposure to viruses are not compensable under Ohio workers’ compensation law. Most claimants will have a difficult time establishing a compensable workers’ compensation claim unless they can prove the virus was contracted in the course of and arising out of employment.  In Ohio, a claimant must prove four elements to have a compensable workers’ compensation claim for COVID-19:

  • The claimant must establish COVID-19 was contracted as a result of exposure in the workplace.
  • The disease is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation,
  • The conditions of the employment result in a hazard which distinguishes the employment in character from employment generally, and
  • The employment creates a risk of contracting the disease in a greater degree and a different manner than the public generally.

The claimant must submit a medical opinion from a physician who diagnosed COVID-19 and causally relates that condition to an exposure at work.

  • It should be difficult to obtain this type of medical opinion in a pandemic context with the coronavirus existing throughout the general public.
    • With the coronavirus, it will be difficult to determine exactly where an employee contracted the virus making it extremely difficult to hold an employer responsible for a compensable workers’ compensation claim.
    • Employers can argue exposure could have happened at any time or anywhere outside of employment.
    • Latency period of between 2-14 days will make pinpointing exposure virtually impossible
  • Certain occupations may make it more likely than members of the general public to be infected, such as health care workers and first responders.

Telephone Hearings

Workers’ Compensation Compensability and Intentional Tort

 

DISCLAIMER: This is a guide, not legal advice. Every situation is different and people should contact us with specific questions.

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