Reger Rizzo & Darnall LLP HomeWorkers' Compensation Claims Handling and COVID-19: How to Prepare Now for an Influx of Claims Later
April 7, 2020 - 4:05 PM
The insurance industry must be prepared for the potential influx of COVID-based workers' compensation insurance claims. Claims handlers must be prepared to make decisions regarding the compensability of those claims when confronted with the first allegations of liability.
The issue that concerns claims handlers most is COVID cases causing disability and death, which are allegedly related to work exposures. We can look to other exposure cases in order to get a general idea of how Courts will view COVID liability. One of the cases which can help us determine how to handle these cases is Sun Home Health Visiting Nurses v. Workers' Comp. Appeal Bd. (Noguchi), 815 A.2d 1156 (Cmnwlth. Ct. 2003). In Sun Home, the Claimant was employed as a nurse. Claimant filed a Claim Petition indicating that she had been exposed to hepatitis C through a series of needle sticks at work. The nurse's job duties involved a high risk of exposure to blood or bodily fluid through needle sticks, which is a major method of infection by hepatitis. Claimant testified that she had been the victim and, importantly, reported numerous needle sticks from infected patients. The Claimant testified that she did not have any other exposure to the disease, such as exposure to blood, blood transfusion, an organ transplant, a tattoo, or intravenous drugs. This gives us a template on how to handle these cases.
We must ask three main questions:
- What is the Claimant's Job? A fact finder will certainly be swayed by learning that a Claimant came from a position where COVID exposure would be normal in the course of employment, for example, if the infected Claimant worked as a treatment provider, such as a nurse or certified nursing assistant. Logically, a treatment provider would be exposed to such illness in the course and scope of their position. Moreover, it would be more factually easy to prove COVID exposure in a medical environment.
- Was there a known exposure to a COVID positive individual? Certainly, the burden of proof can more easily be made when the Claimant can prove a known exposure to a COVID positive individual. Smart defense counsel will make it difficult to prove the positive COVID exposure by attempting to show that the positive individual did not encounter the known positive individual. This will require close initial investigation.
- Can other exposures be excluded circumstantially or factually? Importantly, if the employer can prove that there was exposure to a COVID positive individual out of work, this will go a long way towards proving that this was a non-work-related exposure. Claimant will have to testify and indicate that there were no known exposures on a circumstantial basis. However, it is known that this virus is easily transferrable via simple breathing or contact of surfaces that contain the virus. Defense counsel should focus on whether the person has remained in the home or attempt to prove that during the activities of daily life that the Claimant has been exposed via some other modality. The science of the exposure should not be undersold given the circumstances in defending such claims.
These are the three basic questions which every claims handler should be asking upon being informed of a COVID claim. How these questions are answered form the fundamental basis for whether a claim should be accepted or initially denied. Frankly, given the relative ease of transference of the virus, the evidence of exposure at work should be strong before a decision to accept a claim is made.
Certainly, even in circumstantially strong cases, the use of the Temporary Notice of Compensation Payable should be the standard procedure, thus allowing the claims handler time to investigate the circumstances of the exposure.
If you have questions, or would like additional information, please contact Bret Goldstein, Partner in Reger Rizzo & Darnall’s Workers' Compensation Group, at 215.495.6528, or via email at bgoldstein@regerlaw.com.
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