Across the country, COVID-19 continues to spread. With this spread, more workers are being infected and trying to recoup compensation from their employers by filing workers’ compensation claims for their COVID-19 infections.
In some states, this has led to the number of claims denials for COVID-19 being much higher than the denial rates for other workplace injuries.
At the 72nd annual Southern Association of Workers’ Compensation Administrators’ (SAWCA) conference in July, a number of employers from across the country were praised for the way they were able to handle COVID-19 claims without using litigation.
Deputy director of the Florida Division of Workers’ Compensation, Andrew Sabolic, was one of the participants of the Regulators’ Roundtable at the conference. He, as well as other workers’ comp regulators around the country, have noticed that many businesses are encouraging their employees to utilize paid time off in lieu of filing for workers’ comp if they contract the illness or are required to quarantine.
Since the onslaught of the pandemic, 15 states have created presumption legislation that makes it easier for those infected with COVID-19 to get their workers’ comp claims accepted.
Unfortunately, Colorado is not one of these states.
The lack of a presumption law doesn’t automatically equal a denial, but the process may take longer. In some instances, those who have contracted COVID-19 may have to argue for their case along the lines of those who fought for black lung disease coverage or another kind of occupational disease contracted through their employment. Such instances require strong proof that their risk to the disease is/was higher than the general public’s risk of exposure.
Frank McKay, who is the Georgia Workers’ Compensation Board chairman, also confirms that he hasn’t had to adjudicate a single COVID-19 claim. He feels that Georgia employers and the business community have been handling the pandemic well.
However, there are some who participated in the SAWCA Employers’ Roundtable who feel as though those who contract COVID should be assisted rather than having their claims opposed.
One such attorney is Mack Babcock, Denver workers’ compensation lawyer and founder of The Babcock Law Firm. Babcock recently supported a presumption law in Colorado, but sadly the bill failed.
While trying to pass the bill, the Colorado state legislature received nearly 30 claims from associations, businesses and chambers of commerce that the cost of paying for infected COVID-19 workers would cost the state nearly $3 billion.
Babcock believes these estimates were exaggerated. In his testimony, he stated that Colorado’s denial rate for COVID-related workers’ compensation claims is significantly higher than other claims.
As Babcock told WorkCompCentral, the numbers are generally “about 40 percent of claims are accepted and 60 percent are denied.”
These numbers have claimants’ attorneys—Babcock included—concerned that workers are getting sick at work but they’re not filing workers’ comp claims—or worse, they’re being discouraged by their employers from reporting their illness.
One factor that is standing between employees and their workers’ comp insurance is the unknown.
Since COVID-19 is a novel virus, we don’t yet know the lasting effects of exposure and infection. Although the vast majority of people who contract COVID-19 will recover, we don’t know yet if some people will require medication for the rest of their lives or if there will be lasting effects.
What concerns workers’ comp insurance companies is that they will be on the hook for lasting care in the event that an employee who contracts COVID-19 in the course of their employment files a claim that is accepted.
