With concerns about the Coronavirus, employers and insurance carriers are dealing with the consequences to their existing, litigated workers’ compensation matters as well as potential claims made as a result of the Coronavirus. Below are some frequently asked questions regarding the Coronavirus and Iowa workers’ compensation matters.
Q: We have a deposition/mediation scheduled. Will that move forward?
That will depend on the attorneys and parties involved. If it is important to have the deposition/mediation in person, those may have to be rescheduled, especially if one of the parties/attorneys is in a high-risk category. This will obviously depend on court deadlines, the ability to continue the hearing, etc. However, many court reporters and mediators are using video conferencing and telephone conferencing to do depositions and mediations electronically. Davis Brown has had success deposing and mediating electronically. Whether to do so will depend on the facts of your case and you should seek the advice of your attorney.
Q: What is the status of workers’ compensation arbitration hearings?
The Commissioner has filed an Order that all in-person hearings scheduled between March 18, 2020 and June 16, 2020 will be conducted via CourtCall, an internet-based video platform. There will be no in-person hearings.
Telephonic hearings for alternate medical care applications, independent medical examination applications, etc. will proceed by telephone as normal. However, if a party has requested an in-person hearing for these proceedings, the hearing will be held using CourtCall.
Q: I want the Deputy to be able to assess the claimant/witnesses in person, which is important to our defense. What can be done to make sure the hearing is in-person?
Either party can move to have the hearing continued so an in-person hearing can be held. A continuance can be requested up to 24 hours prior to the scheduled start time of the hearing. The continued hearings must be rescheduled for a date between June 22, 2020 and December 18, 2020.
Q: If we chose to do the hearing via CourtCall, how much does this cost?
The Division of Workers’ Compensation is paying all fees associated with conducting a hearing using CourtCall between March 18, 2020 and June 16, 2020.
Q: An employee tested positive for Coronavirus and alleges the exposure arose out of and in the course of employment. Is the employee entitled to workers’ compensation benefits?
This will depend on the facts of each case, but most likely no. Whether this type of claim is compensable involves a similar analysis as if you were dealing with an employee that has the common cold or flu. Generally, an employee is not entitled to workers’ compensation benefits for common illnesses because it is near impossible to determine if the illness arose out of and in the course of employment.
Only if there is a novel virus like the Coronavirus, with limited exposure, and an identifiable disease agent, will the claim possibly be compensable. The most likely scenario of a compensable case would be a healthcare worker exposed to a patient with the Coronavirus prior to there being a large infected pool in the area. Several factors should be considered in making a compensability determination:
- How long was the employee exposed to a co-worker/client/customer/patient with the Coronavirus?
- How was the employee likely exposed (in-person contact, sharing of food, touching the same equipment, etc.)?
- Was the employee exposed to others outside of work who have tested positive for Coronavirus?
- Did the employee quarantine outside of work?
- What were the employee’s activities outside of work? Did they travel anywhere? Go shopping, visit friends, etc.?
- When did symptoms begin and does the incubation period correspond with the employee being at work at the time he/she was likely exposed?
- How many people in the area have tested positive for the Coronavirus?
If an employee merely contracts the Coronavirus without a strong link to their work environment or activities, then the claim will likely not be compensable. As the number of positive Coronavirus cases increases in Iowa, claims are less likely to be compensable. Taking appropriate steps to secure the workplace as discussed by Jo Ellen Whitney will help eliminate exposure risks at work and workers’ compensation claims.
Again, it is extremely important that you contact your attorney to discuss compensability issues. These situations must be analyzed on a case-by-case basis and will involve in-depth fact investigation.
Q: If an employee believes he/she may have a work-related exposure to the Coronavirus, should the employer direct the medical care?
While an employer in Iowa has the right to direct medical care for work-related injuries, this may be a situation where the employer will want to waive that right. If an employer directs the medical care, they are responsible for payment of those expenses until they issue a denial of additional medical care. Even if the employer were to direct medical care and the employee tests negative for the Coronavirus, the employer and insurance carrier is still responsible for payment of that medical treatment. However, if the claim is being investigated as to compensability, the employer can waive their right to direct care. If the claim is ultimately found compensable, the employee may later seek reimbursement for their medical care.
An employer should consider telling their employees who have alleged/suspected work-related Coronavirus exposure to treat on their own with their primary care physician until a compensability determination can be made. If an employer directs medical care to an authorized physician related to an infectious illness, then this could cause congestion in the authorized provider’s clinic and result in over-reporting. Even if the claim is later determined to be compensable, it is unlikely that medical care provided by the employee’s primary care physician will substantially differ from that of the employer’s usual authorized provider.
You should speak with your attorney about whether to waive the right to direct medical care so the benefits and consequences can be weighed on a case-by-case basis.
Q: What if I send an employee home because he/she may have been exposed to the Coronavirus, do I have to pay workers’ compensation benefits for the employee’s time off work?
No. For workers’ compensation benefits to be payable, there must first be an “injury.” If the employee has not tested positive for Coronavirus, there is no injury.
If the employee does test positive, then the question becomes whether the exposure arose out of and in the course of employment, as discussed above. If you and your attorney determine there is a compensable injury, then workers’ compensation benefits may be payable for medical appointments and time off work.
Q: When do I need to submit a workers’ compensation claim related to a Coronavirus exposure to the insurance carrier?
An employer should submit a claim to its insurance carrier when the employer has knowledge that an employee has tested positive for the Coronavirus, there has been direct contact with a known Coronavirus agent, and there has been no known exposure outside of work. A claim should also be submitted if an employee submits an injury report or gives other written or oral notice to the employer that the employee feels he/she has Coronavirus from a work-related exposure. Finally, anytime a petition has been filed by an employee for work-related condition, even exposure to the Coronavirus, a claim should be submitted to the insurance carrier.
Q: Do I need to submit a First Report of Injury if an employee tests positive for the Coronavirus?
An employer or insurance carrier is only required to submit a First Report of Injury to EDI if the employee alleges the exposure was work related and:
- the injury results in incapacity for more than three days
- the Commissioner orders a report be filed, or
- a petition is filed.
