Presumption push has sector comp on edge
The COVID-19 omicron variant appears to be declining and several states have lifted their mask mandates, but lawmakers spent the start of the year monitoring workers’ compensation legislation related to the pandemic.
Since state lawmakers returned to work in January, more than a dozen new or revived pieces of legislation have been filed, with more expected, legal experts say.
“Presumption COVID-19 legislation continues to be a hot topic for workers’ compensation,” said Laura Kersey, executive director, regulatory and legislative analysis, Boca Raton National Compensation Insurance Board, in Florida. “Several states that enacted COVID-19 workers’ compensation presumption legislation in 2020 and 2021 are considering legislation to extend these presumptions at a later date and/or extend these presumptions to other workers.”
Analysis of recent NCCI activity, which highlights bills introduced in nearly a dozen states, shows that legislation that would extend presumptions beyond COVID-19 to other diseases infections is back in fashion. Two states – California and Florida – introduced such legislation this year, after the 2021 legislative season saw nearly a dozen similar bills introduced in the US, according to Ms Kersey.
Another trend concerns vaccine injuries. Lawmakers in at least six states have introduced bills that would explicitly state that any adverse reaction to a mandatory vaccine would be compensable in comp workers.
However, presumptions are an immediate concern.
“Despite the fact that omicron is literally everywhere, even among fully vaccinated people, many states are looking to expand their COVID presumptions. I really don’t see how anyone could show that their work puts them at greater risk given the extent of the disease, but that doesn’t stop legislatures from moving forward with these bills,” said Mark Walls, Chicago-based vice president of customer engagement at Safety National Casualty Corp.
Steve Bennett, Washington-based assistant vice president of workers’ compensation programs and attorney for the American Property Casualty Insurance Association, said expanding compensation coverage for other presumptively communicable diseases , in particular, would harm the industry.
“It’s extremely difficult to make a no-fault system work when you’re going to cover injuries when there’s no evidence it happened in the workplace,” Bennett said. “To keep (the workers’ compensation industry) healthy, balanced and financially stable, you need proof that the actual injury took place in the workplace.”
Most, if not all, COVID-19 presumptions are rebuttable, meaning that if an employer can prove the worker contracted the virus elsewhere, the presumption is void. In Illinois, where a presumption has been in place since 2020, employers need only question whether the worker fell ill on the job.
Rich Lenkov, capital member and head of the workers’ compensation practice at Bryce Downey & Lenkov LLC in Chicago, said that by the time the presumption bill went into effect in Illinois , he expected a lot of litigation, but it did not materialize.
There have been two statewide cases and the courts have upheld the presumption, he said.
Claims for COVID-19 have had minimal impact on the model industry. Rating agencies, including NCCI, reported average claims costs were $7,800 throughout the pandemic. Most of the claims had no medical component, meaning that in most cases insurers paid quarantine leave for workers to recover.
Extending the legislation beyond COVID-19 is a concern, legal experts say.
“There is certainly the risk of spreading this disease to other diseases, and the governing bodies of the state are expanding the compensation of the conditions,” Lenkov said.
“What we have learned from COVID is that governing bodies will bend over backwards to find a compensable condition even though science and common sense dictate that it is difficult to prove it was work-related,” did he declare.
Jeff Adelson, a partner at Adelson McLean PC of Newport Beach, Calif., said a case in California – See’s Candies, Inc. v. Superior Court – could have far-reaching implications for comp. At the heart of the case is a woman who is suing her employer, See’s Candies, after she allegedly caught COVID-19 at work and gave it to her late husband. In December, a California appeals court allowed the lawsuit to continue after See’s Candies argued that the exclusive remedy barred the lawsuit.
“In California, it could become case law,” Mr. Adelson said. “The judge treats this as tort liability but disregards the implications of compensation,” particularly with a presumption in place that a worker was infected at work.
Employers should “be concerned about expanding the presumption”, he said, adding that “this presumption could spill over into a To see case scenario.