Tag: 2020 News

Californians stricken with COVID-19 took the first step in filing more than 5,000 workers’ compensation claims from January through May, according to state data released to CalMatters.

More than 1,000 of those claims were denied, most of them before Gov. Gavin Newsom signed a May 6 executive order extending protections for essential workers infected on the job on or after March 19, the day California’s lockdown order went into effect. The order presumes that essential workers – including nurses, first responders, farmworkers and grocery workers who contracted COVID-19 – were infected on the job, and puts the burden on employers to prove otherwise.

At the same time, overall workers’ compensation claims plummeted during California’s lockdown as workplaces shut down and fewer employees were injured at work. Only 1,098 claims were filed in May, compared with more than 50,000 in January.

While a number of states have extended similar “presumptive eligibility” protections to varying groups of workers – mostly health care workers and first responders – California goes further than many in protecting all essential workers.

As of Tuesday, more than 10,000 health care workers have been diagnosed with COVID-19; 63 have died. More than half worked in nursing homes.

Analysts originally estimated that California employers and their insurers might face COVID claims of up to $33.6 billion annually but later downgraded that to about $2 billion.

COVID-related claims were denied at a rate of 10 to 60 percent depending on the month. In April, about 13 percent of claims were denied. Under Newsom’s executive order, essential workers, such as nurses or first responders, have to show that they were infected within a certain period after the statewide shutdown began; they also had to be diagnosed by a physician.

Alex Swedlow, president of the California Workers’ Compensation Institute said that even before Newsom’s order took effect, the majority of COVID claims were approved.

The shortage of diagnostic tests – a significant problem for workers in March and April, when most of the claims were filed – may have contributed to some of the denials, Swedlow said. Other workers may have been denied because they tested negative at a time when some COVID-19 tests have produced false negatives.

An Institute report released earlier this month found that about 41 percent of workers’ comp claims were made by health workers, with another 32 percent by first responders including police and firefighters. Some workers were denied because they worked at home; others because they declined to be tested, according to the report.

Swedlow anticipates that denials may decline as workers get more access to testing and California’s workers’ comp system adjusts to dealing with an entirely new disease.

Stuart Waldman is president of the Valley Industry & Commerce Association (VICA), which works to enhance the economic vitality of the greater San Fernando Valley region by advocating for a better business climate and quality of life.

He just published his views on the workers’ compensation presumptions that he says burdens the COVID-19 recovery in an opinion article published by the Los Angeles Daily News.

He says that the consequences of the governor’s COVID-19 “presumption” for workers is far-reaching and will potentially add billions in new costs to California’s already cost-laden system, especially as employers struggle to bring jobs and public services back online.

Now, he points out that state lawmakers stand ready with several legislative proposals which threaten to burden the relatively modest workers’ compensation system with an outsized responsibility for California’s response to COVID-19, even though the connection to the workplace may be tenuous or even nonexistent.

To be clear, he points out that employers have raised no objection to paying COVID-19 workers’ compensation claims that can be traced to the workplace. In fact, these claims are being paid in cases where there’s a positive test. The objection is that presumptions leave employers virtually defenseless against claims that originated outside the workplace but must be accepted as workers’ compensation claims.

Yet he makes four arguments against adding more presumptions to the current worker’s compensation compensability architecture.

First, there’s no evidence that a COVID-19 presumption is needed. In addition to unprecedented safety measures and expansions of sick leave, all evidence points to employers accepting claims for COVID-19. Early reports suggest workers’ compensation claims are only being denied when COVID-19 tests come back negative.

Second, wholesale presumptions fail to consider whether a worker has any greater risk of COVID-19 sickness. Even if they leave their home, many workers are working with ample social distancing and do not interact with the public. Personal errands for these workers likely come with far greater risk than the workplace.

Third, California’s re-opening from the pandemic is not limited to workplaces. People are easing back into broader socializing and recreation. Presumptions assume that people are merely going to or from work. That is not the current reality. The “industrial causation” standard exists precisely because people have lives outside of work.

Fourth, presumptions lay billions of new costs on employers at the exact moment when they can least afford it. For many employers and most public agencies (cities, counties, schools, and others are also employers), workers’ compensation costs are not an indirect cost paid for through insurance. They are a direct, pay-as-you-go cost that redirects critical dollars away from other business needs or public services.

The architecture of the California workers’ compensation system will be changing to favor compensability for health care workers’ who contract COVID-19 from exposure to patients on the job. The number of cases that will follow is difficult to estimate. However, an estimate by an international organization of nurses paints a stunning picture of the size of potential claims.

The International Council of Nurses is part of a global voice that has been speaking for nurses around the world for 120 years. The ICN represents 130 national associations and more than 20 million registered nurses.

ICN claims that more than 600 nurses worldwide are known to have died from COVID-19, which has infected an estimated 450,000 healthcare workers.

The death toll among nurses more than doubled in the past month from 260 on May 6, according to its figures, which are based on data from more than 30 countries.

“In the last two months, we have seen the number of deaths of nurses as a result of coronavirus around the world rise from 100 to now in excess of 600 and we think worldwide the number of healthcare workers who could be infected by the virus is around 450,000,” Howard Catton, chief executive officer of the Geneva-based ICN, told Reuters Television.

“These are numbers that keep going up,” he said.

The pandemic’s true cost among health professionals was not known, the association said, renewing its appeal for greater protection for them and systematic collection of reliable data.

On average, 7 percent of all cases of COVID-19, the lung disease caused by the novel coronavirus, are among healthcare workers, which means that nurses and other staff are at great personal risk “and so are the patients they care for”, it said.

Extrapolating from more than 6 million reported cases gave its estimate of some 450,000 infections among healthcare workers.

Infection rates among healthcare workers vary greatly between countries, with fewer than 1% in Singapore and more than 30% in Ireland, it said. Spain and Germany have recorded low numbers of fatalities among healthcare workers despite large outbreaks, it added.

“Why do the rates of deaths among nurses appear higher in some Latin American countries?” it asked, referring to the region that the World Health Organization (WHO) says has emerged as the new epicentre for the pandemic.

“Why are some countries reporting disproportionate deaths among black, Asian and minority ethnic HCWs (healthcare workers)? This is an issue raised directly by the Philippine Nurses Association to ICN, concerning Filipino HCWs in the UK,” it said.

California has experienced dramatic drops in employment as the COVID-19 pandemic continues to unfold. About 4.3 million first-time Unemployment Insurance claims were processed in the first ten weeks since the start of the pandemic. This comprises more than 20% of California’s total labor force prior to the pandemic.

The impact of this COVID-19 induced economic downturn on the workers’ compensation system is unclear given the magnitude and suddenness of the employment drop, uncertainty surrounding the economy reopening, trends in post-termination claims and potential future waves of COVID-19 infections.

Patterns of historical impacts of prior economic downturns on the workers’ compensation system may shed light on what we could anticipate in the California workers’ compensation system.

In this study, the WCIRB analyzed historical impacts of economic cycles between 1961 and 2017 on workers’ compensation claim frequency, provided forecasts of claim frequency changes in light of the current economic situation and summarized the potential impact of post-termination and COVID-19 claims on claim frequency. The WCIRB’s findings include:

— While many factors influence claim frequency, between 1961 and 2017, overall claim frequency decreased modestly more during years of economic recession than during years of expansion. The modest decline during economic downturns was partly due to cumulative trauma (CT) claims, which, unlike other claims, often increased during downturns.
— For industry sectors that were hit the hardest during the 2001 recession and the Great Recession, claim frequency tended to fall along with job losses or fall faster during economic downturns compared to economic expansions.
— Based on the post-COVID-19 national unemployment rate for April 2020 of 14.7%,3 the WCIRB’s econometric model projects indemnity claim frequency to decline by 14% in 2020. This estimate accounts for several economic and claims related factors but does not fully reflect recent trends in post-termination claims or the impact of COVID-19 claims.
— Since 2012, about 25 post-termination claims (most are CT claims) have been filed for every 1,000 jobs lost. If only 50% of the rate of post-termination claims is applied to the 4.3 million Californians who have lost jobs, about 54,000 post-termination claims could be filed over the next year, increasing statewide indemnity claim frequency by approximately 25%.
— Many claims with a COVID-19 diagnosis are emerging in the workers’ compensation system. Based on two cost estimates of presumptions of compensability that the WCIRB recently published, the estimated frequency increase from COVID-19 claims ranges from 14% over a four-month period of a rebuttable presumption applied to all workers directed to work outside of home to 42% over an annual period of a conclusive presumption to all essential workers.

Historically in the California workers’ compensation system, indemnity claim frequency often declined during economic downturns at modestly greater rates than in periods of economic expansion. The rate of CT claims, on the other hand, often increased significantly during economic recessions. Non-economic factors also impact claim frequency.

The WCIRB’s econometric frequency model that accounts for both economic and non-economic factors suggests that with the dramatic post-COVID-19 economic slowdown and unprecedented job losses, indemnity claim frequency will drop significantly.

However, the model does not reflect any claims arising from COVID-19 diagnosis nor does it fully reflect recent trends in post-termination CT claims. It is possible and perhaps likely that growth in these types of claims will more than offset the impact of the economic slowdown on claim frequency.

The following WCAB offices are closed effective Monday, June 1 until further notice due to the impact of violent protests in the area: Fresno, Long Beach, Los Angeles, Oakland, Pomona, Redding, Riverside, San Bernardino, San Diego, San Francisco, San Jose, Santa Ana, Santa Barbara, Santa Rosa, Stockton, and Van Nuys

However, the Division of Workers’ Compensation and Workers’ Compensation Appeals Board continue to improve their operations during the COVID-19 pandemic. The following changes are effective June 8:

Updated Hearing Procedures Starting June 8:

DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences, case-in-chief trials and expedited hearings telephonically via the individually assigned judges’ conference lines as announced in DWC’s Newslines issued on April 3 and April 28.

Beginning June 8, DWC will hear up to 3 lien conferences per judge per calendar session via the individually assigned judges’ conference lines. Lien conferences in excess of that number will be continued.

All parties scheduled for a hearing should call the conference line for the judge in front of whom the case is set, at the designated time listed on the hearing notice. When prompted, the parties should enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call.

All lien trials will be continued during this time. District offices will not hold in-person hearings.

Continuing Filing Procedures:

DWC will not accept walk-in filings, walk-through documents, or in-person requests at this time. DWC will only accept electronic filing via EAMS and JET File, and paper filing by U.S. mail.

DWC will accept limited email filings pursuant to WCAB’s en banc dated April 6 and its Newsline issued on April 23. Email filings are limited to documents that are subject to a statute of limitations that cannot otherwise be efiled, JET filed, or filed by U.S. mail.

DWC has posted additional information to assist parties with filing settlement documents in EAMS. Refer to the district office page for email and other contact information.

DWC will continue to accept an electronic signature on any settlement documents, applications, pleadings, petitions or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules.

Injured workers who are unable to file utilizing the available options or need assistance may contact DWC’s call center at (909) 383-4522.

The WCAB Commissioners’ office is closed to the public for in-person inquiries and requests until further notice. The Commissioners and staff are working remotely during the closure.