It was recently reported and confirmed by the BWC Administrator, Stephanie McCloud, that eighteen new workers’ compensation claims have been filed alleging workplace exposures to COVID-19.
While local, state and federal governments are making emergency provisions and changes to other areas of labor and employment law, (please continue to reference our previous and continuing email blasts) to date the workers’ compensation laws have not been changed due to COVID-19. Therefore, these new claims are being adjudicated under the existing statutes. In fact, Ms. McCloud announced three of the eighteen claims were initially denied and the BWC continues to investigate and evaluate the remaining claims. More claims are sure to follow.
It is our recommendation that while our clients can be sympathetic and caring towards its employees, and especially to any employees that test positive for COVID-19, we must address these new workers’ compensation claims with objectivity and common sense. We recommend that under most circumstances, if an employer receives a COVID-19 claim, it should be processed and adjudicated, if necessary, through the administrative process currently in place.
Any new claim alleging a COVID-19 exposure should be investigated and evaluated as an alleged “occupational disease.” Under the definition of “occupational disease” (O.R.C. §4123.01(F)), a claim is compensable if “a disease is contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results 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 in a different manner from the public in general.”
Based on this definition, the BWC has stated that generally a claim alleging exposure to COVID-19 will not be compensable because people are exposed to COVID-19 in a variety of ways and few jobs include a hazard or risk of getting the disease in a greater degree or in a different manner than the general public. However, examples of jobs with a special hazard or risk may include those working in healthcare settings and/or first responders. Remember, workers’ compensation claims are adjudicated on a case by case basis and the facts of two claims are never identical. Therefore, if a claim is filed alleging exposure to COVID-19, it will be vitally important to ascertain as many facts as possible regarding the alleged exposure.
The BWC has also announced that all private and public employers can defer premium payments due in March, April and May until June 1, 2020 with no application process necessary. In addition, the BWC has suspended all face to face audits for self-insured and state fund employers but will continue with paper and virtual audits. The BWC will also be issuing temporary self-insured certificates during this time period.
The BWC will continue to process claims and motions as best possible but has suspended all medical examinations. For new claims, motions for additional allowances, and motions for temporary total disability compensation, the BWC will continue with medical file reviews and is currently exploring “virtual” examinations. Injured workers with allowed claims who are currently on temporary total disability compensation, living maintenance compensation or wage loss compensation will continue to receive payments through April 30, 2020 without requiring certification from a doctor due to the closure of most medical offices or without requiring a job search for wage loss compensation.
In addition, the Industrial Commission of Ohio has suspended all in-person hearings and is proceeding with telephonic hearings only. The Industrial Commission has limited the issues to be adjudicated through these telephonic hearings to include only initial claim applications, motions for additional allowances, motions for temporary total disability compensation, motions to terminate temporary total disability compensation, motions for wage loss compensation, and applications for permanent total disability compensation. All other issues for which hearings are necessary will be scheduled at a later date once the Industrial Commission returns to its normal operating procedures.
As employers across the country face unprecedented challenges posed by COVID-19, the attorneys at K|W|W will keep you up to date on the laws and regulations affecting your workforce. If you have any questions or concerns, please reach out to us. As always, your workforce is our priority.
The K|W|W Team