Bradford & Barthel, LLP has presented two webinars this week entitled, “The Pandemic, the Claims Desk and You: How Will COVID-19 Impact W/C?“, presented by B&B partners Don Barthel, Louis Larres and John Kamin.
If you had the opportunity to attend, we hope you found it informative. If you have not yet attended, please know that it has been recorded. It is available for review (and is CE accredited) at: https://www.youtube.com/watch?v=Q_ps3A-Bo2o&feature=youtu.be.
During our webinars we received a number of fascinating questions. These were addressed by our partners, Louis Larres and John Kamin. Below are a number of those questions and the resulting answers.
We have received countless questions about the inability to accommodate modified duty over the past few weeks in lieu of the coronavirus. Before diving into specific questions, we generally agree that if you were already paying TD benefits, keep on paying them for the short term as we see how this unprecedented situation plays out. The reasoning for this is that nobody will fault you for paying TD, and doing so could make sense from a cost-benefit analysis should litigation arise later.
Historically speaking, the WCAB and DWC Audit Unit have generally held that employers who are unable to accommodate modified duty are liable for TTD. Today’s times leave a gray area as far as what to do when modified duty is unavailable due to a government order for employees not to show up to work, thus depriving the employer of the ability to offer modified duty.
Many carriers are simply taking the stance of paying TD under that scenario. Conversely, we do believe that it is perfectly reasonable to argue that it is not the fault of the employer that the government literally removed the employee from the labor market in that scenario. Still, we cannot guarantee that the courts will see it the same way, and we understand why carriers would want to play it safe and simply pay TD in that scenario.
Secondly, there has been a substantial change in national sick leave law that was approved by the federal government on March 18, 2020 that may impact claims adjusters’ analyses. This is not to be confused with the additional coronavirus stimulus legislation that has been proposed and hotly-debated since then.
While we are still dissecting the finer points of that brand new law, the Los Angeles Times reports that full-time employees get up to two weeks of paid sick leave, and part-time employees get up to two weeks of equivalent sick leave. Employers reportedly can recoup much (as in 80%) of that money in the form of future tax credits. There are also other varying levels of benefits under the law.
In order to qualify for the varying levels of benefits under the new law, one needs to either:
- Have the virus
- Be in quarantine
- Is caring for a family member who has the virus
- Is subject to a government or doctor-recommended self-quarantine
- Is caring for children whose schools or daycare facilities have closed
We will have more on the new law as more details emerge. Now let’s dive into those questions.
QUESTIONS AND ANSWERS
Q: If an injured worker is on modified duty and getting wage loss, and the employer shuts down due to government mandate, do we owe wage loss or TTD or nothing?
A: As noted above, many carriers are opting to play it safe and simply pay TTD during that time. We believe that it is reasonable to argue that no TTD is owed because the loss of modified work was due to the governmental order, however we cannot guarantee the WCAB will see it that way.
The basis of this argument is as follows: if your nonessential employer did offer modified duty during a “stay at home” order, they would literally be violating a governmental order and, in some areas, could be charged with a misdemeanor. Based on that, we would argue that you are not liable because the loss of work was due to complying with a stringent government order not to provide modified work.
Still, we cannot guarantee that the courts will see it the same way, and we understand why carriers would want to play it safe and simply pay TD in that scenario.
It’s also worth noting that if the employee has been quarantined, then the sick leave provisions of the new law would apply.
Q: The employee was contacted by his employer to advise that an unidentified coworker had been diagnosed with COVID-19. He is one of several who had close contact with this coworker. This employee asked for a claim form. Both his personal doctor and the workers’ compensation doctor denied his request for a test as he does not have the symptoms. The employee is currently self- quarantined, remains asymptomatic. The employer has recently confirmed that the co-worker is positive for COVID-19. My question is, what if the symptoms come about after the incubation period of 14 days and it is determined that he is positive for COVID-19. The employee claims that he’s been self-quarantined the entire time. Might the employer have liability?
A: First, I appreciate the fact that the infected co-worker has not been identified to his/her co-workers. Maintaining the infected individual’s privacy is a must. Federal and state law apply here, including the FEHA.
Turning to your questions, the employer should provide him with a DWC-1 claim form.
Secondly, if he does later test positive for COVID-19, the employer might have liability. However, the timing of the positive test date and result is a very important part of this analysis because:
- If he takes the test within the 14-day period of last being near that co-worker or at the employer’s worksite, and it shows “positive,” then the employer’s probability of being liable is very high. This is because the employer placed him in a “zone of danger.”
- But if he tests positive more than 14 days after the last exposure to that coworker or the worksite, then the employer’s probability of being liable is decreased. This is because of the standard 2-3 week period associated with this disease. So let’s say he tests positive 25 days after the date of last exposure – then the employer has a much stronger case of denying liability.
Regardless of when he tests positive, I’d recommend doing a strong and very detailed factual investigation. Many questions should be posed, such as:
- Who does he live with?
- Any positive test results there?
- How often did he go to the grocery store?
- Did he go to the pier, park, or play basketball on those nice warm weekend days?
- When did symptoms begin?
- Any night sweats, or cold sweats?
- Any really minor symptoms?
- If so, when did those start?
- Did other co-workers get infected?
- Did he have to work with them?
Many more potential questions have been identified in our seminar “The Pandemic, the Claims Desk and You: How Will COVID-19 Impact W/C?”, which is available on our website, as is the PowerPoint containing all of the recommended questions.
Please remember that each case of this will turn on facts like that in the investigation.
Q: What about the CourtCall fee? Both attys are being charged $66 and we have cases where the AA is requesting we reimburse the fee.
A: I would argue that we are not liable for that $66 CourtCall fee. I see that as being akin to the $10 to $25 parking fee at most WCABs. It’s a cost of doing business, we don’t reimburse AA for parking fees.
Q: Please address if any of this, especially AOE/COE, is different with public safety employees, i.e. police and fire employees. Are they at a greater risk than the general public because the general public is “Shelter in place” and they are not?
A: The public safety employees are at greater risk just by the nature of their professions, even without a “Stay at home” or “shelter in place” order. Still, one must examine their job title, job duties, and the timeline around when the infection occurred when evaluating these claims.
Q: I’m a broker. I have many employer clients who are now beginning to layoff large portions of their staff. Any thoughts on how we can look to prevent the post-term CT claims that will come from this. Anything to mitigate the exposure?
A: Sure. While we can’t prevent people from filing claims, there are a number of things employers can do to prevent acrimony and anger that can often lead to post-termination CT claims.
First, you can pay them for the day they came in and told they were being laid off. If possible, try to notify them by phone so they don’t have to travel into work and risk exposure. It’s little stuff like that that can really make people mad.
Secondly, be patient, polite and considerate. Attribute the immediate problems to the government orders – blame them for disrupting business operations. The local government basically invited you to do so. They are literally threatening misdemeanors and water/power shutoffs to employers who ignore their governmental orders, in the name of public safety. Make it clear that it’s the government who issued the “stay at home” order, not you.
If this is more of a layoff as in a termination due to financial circumstances, and you want these employees back, tell them that you’d like to invite them back when things improve. After all, you paid to train these people. It’s usually more efficient to have experienced employees come back than to have to retrain new people. And keep in mind that most people do want to “get back to normal.”
Remember that the labor law side of the Labor Code requires you to pay any owing wages and vacation at time of termination, so get those checks out quickly as well.
And lastly, in these layoffs of healthy employees, encourage them to file for unemployment with EDD. They paid into the system. As one applicant attorney I know always tells EDD when negotiating EDD settlement credits, he says, “It’s their (the applicants’) money. They paid into it. Why punish them for getting it? It’s literally their money.”
Now we do understand that unemployment affects the employer’s bankroll too, but it’s still cheaper than having a bunch of new work comp claims.
Q: If an employer feels that an employee may have been exposed but the EE is not actually showing symptoms, can an ER require the EE to get tested to continue working?
A: If an employee is not showing symptoms but there is concern about exposure to the virus, yes the employer could require them to get tested. It’s a pretty simple and easy test, as it’s just a nose or throat swab that only takes about a minute to take a sample.
However, it may not be worth it to send them for a test until more tests become available. Please note that many doctors will not authorize a test if the employee is asymptomatic or have minor symptoms. That’s due to the testing shortage.
Assuming that you can get a test, it usually takes 2-5 days to get test results back. However, the FDA did just approve a 45-minute test, but it will probably take some time to disseminate this test across the market, and there are reports that this test will only be limited to critically urgent scenarios. I’m sure the employee would like to know one way or the other as well, so they’ll probably be willing to take the test if you can get one lined up for them.
If the employer is requiring the testing, then the employer is liable for the test costs. However, they should not be charged if being tested under the employee’s group health. If the employee is charged a fee, just reimburse them.
Lastly, please be aware that there is additional liability in sending employees to get tested. They could get in a car accident on the way, or contract an illness while waiting for a test in a crowded medical clinic.
Q: How can people determine if they contracted the virus while at work, i.e., from a co-worker who had the virus at work?
A: In short, one could look at how closely they had to work with the infected person. Doing an employer-level factual investigation would be helpful. For example: how closely did they work together, did they share surfaces/paperwork, what safety protocols were in place and were the protocols followed? Also, did they work the same shifts? Did they work different shifts? Was there a well-documented outbreak in their residential neighborhoods? Were their family members sick before they caught the virus?
We have a whole list of questions one can ask to help the investigation. If you are interested in our investigation strategies, please feel free to contact us. Our discovery strategies tend to vary by the individual facts of each case, so it’s a little difficult to lay them all out here.
Did these questions and answers address your concerns? If not, please submit your questions Don Barthel at email@example.com. In the meantime, please stay healthy!
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Got a question about workers’ compensation defense issues or pending workers’ compensation legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he heads the firm’s Sports Law Division and watches the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist, where he reported on work-related injuries in all 50 states. Feel free to contact John at firstname.lastname@example.org or at (818) 654-0411.
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