Last updated 6.3.2020 @ 5:10 pm
DISCLAIMER: The following information is a guide, not intended to be used as legal advice, and no attorney client relationship is established by any communication through this website. Because every situation and every workplace is different we ask that you contact us with specific questions.
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.
On Wednesday, March 18, the Commission began conducting 2 telephone hearings per room every hour. Effective June 3, 2020 the Industrial Commission will hear all workers’ compensation issues, with permanent partial disability hearings being scheduled for 6 hearings per hour.
Telephone Hearing Procedure
Beginning on Monday, April 27, 2020, the Industrial Commission of Ohio will change the way it conducts telephone hearings in an effort to increase efficiency. In addition to the names of parties, claim number, date and time of hearing, and general information telephone number, the notices of hearing will state the hearings will be conducted by telephone, and will provide a number and access code for parties and representatives to call in order to participate.
The IC does not have the ability to docket claims on the half hour, without delaying the implementation of this process, due to reprogramming of the docketing/notice system that would be required. It is understood that the parties/reps will call at the beginning of the hour and the hearing officer will conduct as many as two hearings during a given hour. The hearing officers are in charge of how to conduct those hearings, and will accommodate the logistical situations as best they can. Some hearing officers may ask the parties to hold while another claim is heard. Others may ask the parties who are not “going first” to call back in twenty minutes or so. It should be noted the Industrial Commission hearings are public, thus there are no concerns regarding confidential personal information. The Hearing Contact document that was created to provide contact information when the telephone hearings began, can now be used to impart information to the hearing officers if you foresee a scheduling issue. A separate document including the following should be submitted to each file that is impacted by the individual situation.
• Claimant’s Name and Claim Number
• Hearing Date
• Assigned Attorney
• Contact phone number for attorney, client, and witnesses
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.
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.
Ohio House Bill 573
Ohio House Bill 573 seeks to amend the workers’ compensation statute to make COVID-19 a scheduled disease under R.C. 4123.68. The amendment reads as follows:
“(CC) COVID-19 contracted by an employee who was required to work outside of the employee’s home: COVID-19 contracted by an employee who was required to work by the employee’s employer outside of the employee’s home during the emergency declared by Executive Order 2020-01D, issued March 9, 2020, constitutes a presumption, which may be refuted by affirmative evidence, that COVID-19 was contracted in the course of and arising out of the employee’s employment outside of the employee’s home. This division applies only to claims arising during the period of the emergency declared by Executive Order 2020-01D, issued on March 9, 2020, and to claims arising during the fourteen-day period after that emergency ends.”
Presently, the bill has not made it to committee and the legislative process can be fairly lengthy. As written, the bill covers COVID-19, which is the disease caused by the novel coronavirus. As such, it would appear that right now, the statute, if amended, would not include workers infected with the virus and not the disease: COVID-19. This is a subtle distinction, but according to the World Health Organization, the novel coronavirus (SARS-CoV-2) and COVID-19 are not synonymous, such as HIV and AIDS. However, the media and governmental authorities alike refer to the virus and disease as the same thing. The distinction between the virus and the disease may be clarified as the bill proceeds through the legislative process.
Employers faced with new claims for the novel coronavirus and/or COVID-19 should deny such claims on the ground of causation. The virus and disease are so contagious, it would be very difficult to establish causation, which generally must be rendered by medical probability. However, if this bill becomes law, employers will need to defend any such claims with strong medical evidence from an infectious disease specialist, as the law makes COVID-19 presumptively compensable. We will continue to keep you apprised of any developments with this proposed bill.
Q: What types of hearings will be addressed?
A: Effective June 3, 2020, all hearings will be addressed via telephone hearing.
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.
- Legislation is currently pending to make it easier for claimants seeking the allowance of COVID-19 to have their claim allowed. Under the current law it would be difficult to connect COVID-19 to work.
Workers’ Compensation Compensability and Intentional Tort