Workers Comp COVID-19 Presumption – There’s An Occupational Disease Statute For That – J&L

State after state enacted their Workers Comp COVID-19 presumption orders to make sure the frontline workers in the Coronavirus pandemic were covered if they contracted the disease.   The states then began to expand which workers were covered if they contracted COVID-19.

The workers’ comp blogosphere was buzzed for many weeks with almost all states providing press releases of their Governors ordering coverage if their intrastate workers contracted COVID-19.

Mark Walls of Safety National commented on his LinkedIn posts over the last few weeks that workers’ comp has long had workers’ comp laws and rules on occupational diseases.  He could not have been more accurate.

I have spoken with a few workers’ comp expert consultants that raised the same point.  Why do we need Workers Comp COVID-19 presumption laws when they already exist “on the books?”

Radium Girls Started The Process

Ever since the Radium Girls of the early 20th century contracted horrible illnesses and disfigurement (read more on that here) each state, in turn, enacted occupational disease laws.  Please note some of the pictures of the Radium Girls show heavy disfigurement (be prepared).

The Radium Girls painted the glow-in-the-dark on watch faces so that soldiers could see the time even at night while still operating under the cover of darkness.  The material used exposed the ladies to low-level radiation over long hours and several years.

The public outcry for these young ladies to receive proper treatment for their injuries began the age of the non-accidental injury.

Occupational Disease – A Different Animal

The statutes said some injuries come from exposures or the contraction of a disease.   An “accident” or “incident” was not required for workers’ compensation claim compensability.

The main requirement for an occupational disease claim originates with a treating physician relating the disease to exposures in the workplace.  The Statute of Limitations becomes critical in these claims.  Why?

If the treating physician diagnoses a condition as work-related, the injured employee’s timeclock for filing a claim starts at that time, not from the date of first exposure.

The last injurious exposure debate starts at that point if the employee performed the same job for different employers over the years.  I will leave that point alone.

Adjusters Heavily Trained In Occupational Disease Claim Handling

Carpal Tunnel Syndrome represents well over 50% of the occupational disease claims I have handled or consulted on over the years (30+).   Most of the carpal tunnel claims were eliminated over the past decade.   Safety and Risk Management won a large victory with the 50% reduction of a very disabling disease.

Other Occ Disease claims types I have handled or consulted on are:

• Raynaud’s Syndrome
• Hearing Loss
• Black Lung
• Brown Lung
• Popcorn Lung
• Silicosis
• Mesothelioma
• Welder’s Eye

The list goes on for many other types of disease claims.

From Day one in the adjuster training that I received, carriers and TPA’s covered occupational disease claim handling.  Most workers comp claims adjusters receive extensive training in occupational disease claims.  Why?

These types of claims become the most expensive claims in an adjuster’s file load.  The medical record review becomes tantamount before accepting or denying a claim.  The adjusters are required to request one or multiple independent medical exams for a compensability review on a very strict timeclock before making the accept/deny decision.

With the file reserves increasing exponentially over time, the claims adjuster will review the claim with their supervisor, manager, and Vice-President at a minimum.  The claims adjuster needs to have their “ducks in a row” for these reviews.

Work Comp claim departments often assign occupational disease claims to their Senior Adjusters due to the likelihood of very intense medical report reviews and the higher reserve amounts.

Example of Occupational Disease Statutes

I use North Carolina as an example of occupational disease statutes/laws/rules.  Our HQ is in the Tarheel State.  I bolded the parts that make a disease a “non-accident” accident.

§ 97-52. Occupational disease made compensable; “accident” defined.

Disablement or death of an employee resulting from an occupational disease described in G.S. 97-53 shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workers’ Compensation Act and the procedure and practice and compensation and other benefits provided by said act shall apply in all such cases except as hereinafter otherwise provided. The word “accident,” as used in the Workers’ Compensation Act, shall not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously or at frequent intervals in the course of such employment, over extended periods of time, whether such events may or may not be attributable to fault of the employer and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this Article: Provided, however, no compensation shall be payable for asbestosis and/or silicosis as hereinafter defined if the employee, at the time of entering into the employment of the employer by whom compensation would otherwise be payable, falsely represented himself in writing as not having previously been disabled or laid off because of asbestosis or silicosis. (1935, c. 123; 1979, c. 714, s. 2.)

I will save you having to read through all the diseases in § 97-53.  That statute can be found here.  The occupational disease list takes up three pages – and it should.

Bottom Line On Workers Comp COVID-19 Presumption Orders

Yes, the Governors, Insurance Commissioners, and Workers Comp Commission tried to protect their citizens – especially frontline workers – in case they contracted COVID-19 from their very important jobs.  (Thank You)

The Workers Comp systems in each state already allowed for the adjustment and compensability determination without having to have presumption orders in place.

Even with presumptions in place, for example, the State of Colorado carriers denied over 30% of their COVID-19 claims.  Florida denials came in at 70%.  Either one of those numbers should be startling or did claimants in those states consider that COVID-19 automatically generated a compensable workers’ comp claim?

The Workers Comp COVID-19 Presumption laws, rules, and orders are already on the record.  One must ask, were they necessary?

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