How COVID-19 is impacting workers’ compensation in Georgia and throughout the U.S.
COVID-19 has created new challenges in the workplace, forcing workers, employers and insurers to reconsider how they handle issues like safety protocols, workplace injuries and workers’ compensation benefits.
Many changes have already been implemented to accommodate the evolving COVID-19 crisis, but there is still much more than needs to be considered.
Workers’ comp benefits and COVID-19
Workers’ compensation is a no-fault insurance system that compensates an employee (and possibly their family) for an injury, illness or death incurred on the job. All 50 states have workers’ compensation programs administered by individual state agencies.
There are some minor differences among the states, but generally, they all require covered employers to provide the following benefits:
- Payment of medical expenses, including surgical and rehabilitation services
- Lost wage recovery
- Compensation for permanent and temporary disabilities
- Death benefits for the employee’s surviving family
In Georgia, any employee with at least 3 workers must provide their employees with workers’ compensation insurance.
Most states, including Georgia, have similar parameters for injury and illness eligibility for workers’ compensation benefits. To qualify, the injury or illness must be from an “accident arising out of and in the course of employment.”
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However, Georgia adds the limitation that excludes a “disease in any form except where it results naturally and unavoidably from the accident.” If you get injured or contract COVID-19 on the job, you have the burden to prove that your condition qualifies for workers’ compensation benefits. That’s the rule in every state.
It’s immediately apparent that we have a problem with COVID-19, as it might apply to an employee in Georgia. How do we prove that a case of COVID-19 (an airborne virus) results naturally and unavoidably from an on-the-job accident?
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Ways COVID-19 is and could impact workers’ comp
Employers have been incurring substantial costs from the COVID-19 pandemic, which affects both employee absences and overall profitability—and sometimes puts employers out of business. Employers must take whatever steps they can to prevent COVID-19 from disrupting or bankrupting their businesses.
Below are just some of the ways COVID-19 has and could affect businesses, employers, workers, insurance companies, and workers’ compensation benefits.
Vaccine mandate considerations for employers
With many businesses opting to mandate COVID-19 vaccines for employees returning to in-person work, questions still remain:
Can an employer impose a mandate requiring all of their employees to be vaccinated?
Can they fire any worker who doesn’t comply?
The question of whether an employer can mandate vaccinations for its employees is in a state of flux. Generally, an employer may require workers to be vaccinated. Most states, including Georgia, adopt the “at will” doctrine of the employer-employee relationship. An employer can terminate an employee for any legal reason, including refusal to be COVID-19 vaccinated.
This only answers some of the questions for an employer. For example, suppose an employee refuses to be vaccinated and becomes infected with COVID-19. Suppose further that the employee proves that he was infected at work.
Is the employee’s workers’ comp claim compromised by the fact that his illness could have been prevented if he had not refused vaccination?
What if an employee gets the mandated COVID-19 vaccine and suffers a side effect? Are reactions to the COVID-19 vaccine covered under workers’ comp?
As of yet, many of these questions are still up for debate.
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In the news:
First settlement reached for health-care workers in lawsuit filed over COVID-19 vaccine mandate
“Chicago-based NorthShore University HealthSystem has agreed to pay more than 500 current and former health-care workers a total of $10,337,500 as part of the terms of the settlement. It’s also changing its policy to accommodate religious exemption requests and rehiring former employees who were fired or forced to resign whose exemption requests were denied.”
COVID-19 claims development challenges
Insurance claims development or loss development is a complicated practice typically understood only by insurance company risk managers and regulators. There have been more than 140,000 COVID-19 workers’ comp claims reported as of January 2021, and insurance risk managers have the job of forecasting losses.
Insurance companies (including workers’ comp insurers) are required to maintain reserves sufficient to cover their losses. The amount of reserves required necessarily is determined in part by forecasting future losses. Insurers must report their projected losses to state insurance regulators.
Workers’ comp insurers are subject to those requirements, but the COVID-19 pandemic has presented special problems for the claims development process. Long COVID-19 is especially difficult because so little is known about the future, and we have no prior experience.
Long COVID-19 is the name given to symptoms that develop long after the patient tests positive or is hospitalized with the virus. Our knowledge about long COVID-19 continues to develop, and that presents a problem for an insurance company’s claims development.
Some of the symptoms of long COVID-19 that we have seen so far include:
- Shortness of breath
- Cognitive dysfunction
- Fatigue
- Chest pain
- Trouble speaking
- Depression and anxiety
- Muscle aches
- Fever
- Loss of smell
- Loss of taste
More than 200 symptoms have been reported. For insurers, long COVID-19 workers’ compensation presents 2 major problems:
- Even if COVID-19 is accepted as a coverable workplace illness, how do we know that long COVID-19 is linked to the contraction of the virus at work? For medical science, the linkage is remote at best.
- Because of uncertainty about the severity and duration of long COVID-19 symptoms, development is a special challenge.
Post-COVID-19 analytics and benchmarking
Insurance risk managers use analytics, actuarial models and benchmarks to predict future exposures. A basic assumption of analytics is that the future will look pretty much like the past. However, the COVID-19 pandemic has thrown a monkey wrench into that formula.
The difficulty is compounded for workers’ comp insurance by long COVID-19 and comorbidities, the long-range consequences of which are still unknown.
Issues with treating COVID-19 as a comorbidity
Morbidity is what medical folks call suffering from a disease or medical condition. It is not to be confused with mortality which connotes death. Thus, comorbidity is the condition of suffering from multiple disorders.
Comorbidity is pretty common. In fact, it’s reported that 80 percent of Medicare spending goes to patients with 4 or more chronic conditions. When you’re injured on the job, there are only rare incidents of co-mingling with injuries not incurred on the job.
COVID-19 patients might have incurred the virus on the job, but what if their resulting illness is exacerbated by comorbidity with other diseases or conditions that aren’t work related?
For example, suppose COVID-19 is traced to the workplace, but the employee suffers other disabling comorbidities. Other kinds of health or life insurance do not distinguish among the sources of the symptoms. But workers’ comp insurance only covers those conditions arising out of and in the course of employment.
In the case of comorbidities, the treatments of each one tend to mesh together to form a unified treatment program. Doctors and hospitals don’t allocate their services depending on the source of the medical condition. That presents a challenge to workers’ comp administrators who must sort out what treatments are eligible to be paid.
Evolving issues with hybrid and remote work
The pandemic has forced many changes in the way we live and work, and hybrid and remote work have brought some new questions and challenges to filing workers’ comp claims.
Did you get hurt at work?
7 steps to get the help you need
Getting hurt on the job can be shocking and scary. But don’t worry; you have rights, and there are steps you can take to get the care and support you deserve. Here’s what you need to do:
This is crucial. Report the injury to your supervisor ASAP, ideally in writing. Just telling a co-worker isn’t enough. Remember, waiting over a month could hurt your chances of getting full workers’ compensation benefits.
Get medical attention for your injury immediately, even after hours or on a weekend. If needed, go to the nearest hospital or your regular doctor. Your employer’s workers’ comp insurance should cover emergency care, even if there’s no specific list of approved doctors (more on this below).
Important: Follow the doctor’s instructions, attend all appointments, and stick to any work restrictions they give you.
Your employer should provide a list of approved doctors you can see (“the panel of physicians”). Ask your supervisor or HR department for it. If they don’t give it to you within a reasonable time, you can choose your own doctor.
Heads-up: If there’s a list and you don’t go to a doctor on it, your employer’s insurance might deny your workers’ comp benefits.
You’ll need to fill out Form WC-14 to protect your rights and get benefits. You can download it online or get a copy from the State Board of Workers’ Compensation. Call 404-656-3818 (Atlanta) or 1-800-533-0682 (outside Atlanta). Send copies of your claim to your employer and their insurance company.
Remember: There might be exceptions to this rule, but we can discuss that later if needed.
Ask your employer for a copy of the report they filed with their insurance company. Also, save a copy of the WC-14 form you filed. If your supervisor doesn’t make a written report, create one for your records.
If your doctor says you can’t work or gives you work restrictions, get it in writing and provide a copy to your employer (keep one for yourself, too). If you’re off work indefinitely, ask your employer how often you must check-in. Follow those rules.
Make sure the workers’ comp insurance company is aware of your injury. Most employers have a separate company that handles these claims. The insurer can’t help you if they don’t know about your injury.
Here’s how to make sure they know:
- Verify with your HR department that they sent the initial injury report to the insurer.
- Ask your employer for the insurance company’s name, phone number, and the person handling your claim (“the adjuster”). You can talk to the adjuster directly.
- If you need help getting this information from your company, call the State Board of Workers’ Compensation Coverage Department at 404-656-3692 for the name of your company’s insurer, then contact them yourself.
Bonus tip: Keep copies of all documents related to your injury, including medical reports, appointments, and any paperwork from your employer or the insurance company. This will be crucial if you need to file a workers’ comp claim.
Last but not least, if you believe you should file a workers’ compensation claim, contact an experienced lawyer at the Georgia law office of Gerber & Elkins Workers’ Compensation Attorneys. We charge no attorneys’ fees if we cannot help you receive the full workers’ compensation benefits you are entitled to for your injuries.
As diligent and dedicated Atlanta work injury lawyers with over 100 years of combined experience, we have helped thousands of injured workers like you overcome various workers’ compensation obstacles such as denied claims, pre-existing conditions, returning to work and more.
COVID-19 resulted in many industries shifting to at-home work. Many employees like remote work, and some employers still encourage it. Along with other benefits, many accommodations have been made to facilitate remote workplaces.
Workers’ compensation benefits are still serving our workforce. But claims are expected to rise with the return to offices and workplaces.
Additionally, since it appears that remote work is here to stay in greater numbers than before the pandemic, there are new considerations as to when a remote worker’s injuries can be linked to the workplace.
It’s also expected that employers will pay more attention to their workers’ health in the workplace, particularly mental health. COVID-19 has brought with it an increased awareness that good mental health contributes to better workplace safety. Many employers are considering flexible work schedules as well as other measures to establish a better work environment, and remote work arrangements established during the pandemic will continue for many workplaces.
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Challenges in the insurance market
Insurance companies marketing workers’ comp coverage are not alone with new challenges brought on by COVID-19. The insurance industry is facing necessary changes in all risk facets, including property, casualty, and auto.
Inflation growing out of demand and supply chain problems have led to increased claim costs. The disruption will continue with price hikes for a limited supply of construction materials, semiconductor chips, and auto parts. In the 3rd quarter of 2021, claim costs reached the highest levels in 20 years. The squeeze puts pressure on premium schedules, including the costs to employers for workers’ comp insurance.
One unfortunate consequence of these forces is that employers and their insurance companies will get stingier. They have a natural incentive to deny claims anyway, and it will only get worse for workers.
Litigation management challenges
Litigation management is part of an insurer’s overall risk management. In addition to claims losses, litigation costs insurers millions of dollars. The aim of litigation management is not just to avoid losing but to avoid being sued.
Insurance companies must advise their employer clients to implement safety policies and practices, and these employers must be persuaded that such measures limit workers’ comp claims and promote savings for both employers and insurance companies. The place to start on a litigation management program is the safety standards required for business by the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA). OSHA also publishes compliance guidelines for special industries such as construction and healthcare.
But an employer’s litigation management program must go beyond OSHA’s requirements. They must tailor their program to their workplace and workers’ job descriptions, which can be more difficult with hybrid and remote workers.
Above all, employers must diligently enforce the rules after plainly and succinctly explaining them to their employees, and workers must be frequently reeducated in periodic safety meetings—yet another challenge for remote work.
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Redefining workers’ compensation
The original concept of workers’ compensation was to compensate workers in traumatic accidents at their workplaces. This was particularly needed when a greater share of the population was engaged in manufacturing jobs.
When COVID-19 came along, health care workers were increasingly vulnerable to exposure to the virus. Workplace COVID-19 infection in the healthcare industry became almost as prevalent as physical injuries to steelworkers. But challenges remain in meeting the statutory requirement of linking COVID-19 directly to the workplace.
The workers’ compensation law and its administration must adapt to these new realities. Some states have enacted a presumption that a health care worker’s COVID-19 infection came from the workplace. The employer can rebut the presumption, but the burden of proof is shifted from the employee to the employer.
Contact a Georgia workers’ compensation attorney for help with your workers’ comp claim
Workplace illnesses and injuries have become more complicated since the start of the COVID-19 pandemic. With remote and hybrid work becoming more prevalent and issues emerging, such as vaccine mandates and tying COVID-19 exposure to the workplace, new questions have arisen as to when an illness or injury qualifies for workers’ comp benefits.
If you’ve suffered a work-related illness or injury in Georgia, it’s essential that you consult an experienced workers’ comp attorney who is up to date on the latest laws and developments around COVID-19 in Georgia.
