Employer Liability & COVID: A Tale of Two States

As is typical in every state-based worker's compensation (WC) case, determining relevant legal factors requires a balance of both state and federal law. The arrival of the COVID-19 pandemic and the workplace challenges it poses require employers to perform that same federal/state balancing act when their workers contract the disease.

However, the WC rules in each state can differ significantly from those of their neighboring states. Because of those disparities, how individual states are reacting to the health concern can dramatically impact the services and support employees might receive should they contract the illness at work. For example, Florida and Georgia are responding differently to the viral concern, which impacts the possible resolution of their WC cases. WC cases with similar fact patterns that arise in the separate states may resolve entirely differently based on where the injury/illness occurred.

No Federal WC Law ... There is no federal law that requires each state to have a WC capacity; every state has established its own WC industry. (The federal government itself has also established a WC system for workers who work in federally based jobs.) The consequence of having no federally defined WC requirement is the development of a loose, state-based network of WC laws and practices that operate differently from and independently of those found in the other states.

In some ways, the lack of standard, nationwide WC regulations is good because it allows the citizens in each state to determine the depth and breadth of their WC rules. In other ways, the lack of uniformity causes problems, as states make different determinations about whether their laws will include or exclude specific injuries or illnesses from WC protections.

... But Yes, Federal Occupational Safety and Health Law

While the federal government doesn't regulate WC issues per se, it does regulate how employers maintain their workplaces to keep their employees safe while at work. The 1970 Occupational Safety and Health Act (OSHA) established a 'general duty' clause that incorporates worker health and safety rules that are applicable in all states. It requires each employer to keep its workplace "free of recognized hazards that can or are likely to cause death or serious physical harm." The intent is to reinforce the basic principles set out in the state-based WC statutes: employers are responsible for the costs incurred when employees suffer injury, illness, or death while on the job.

Consequently, because the federal government enforces workplace safety rules and state governments enforce WC rules, employers must navigate between the two when

setting up the safety standards for their employees and then maintain those compliances when work-based injuries or illnesses occur. In many, many cases, a state-based WC case becomes more complicated and complex based on how its rules interpret and apply the relevant federal statutes.

(A relevant side note: there are federal laws that every state must follow because they flow from constitutional principles, such as those that prohibit discrimination against pregnant workers or workers with disabilities, as just two of many examples.)

WC Laws and the COVID-19 Pandemic

The lack of uniformity of WC rules across state lines has exacerbated the confusion around potential WC coverage for covid infections, causing significant consternation to many injured or ill workers who believe they may have contracted their COVID-19 illness while at work. The discussion centers around two critical points:

1. Do the states' WC laws provide guidance to include or exclude coverage for potentially work-caused COVID infections as a matter of course? In some states, an illness contracted due to exposure at work is considered a work-related illness and is covered. In other states, legislatures considered the virus to be within the class of 'routine community spread' diseases such as the flu, chickenpox, or measles. Community spread diseases are typically not considered covered by WC insurance.

2. If WC insurance doesn't automatically cover the costs of the illness, is there some circumstance at the place of business that increases the risk of contracting the virus, whether that's by the nature of the work or through a lack or lapse of compliance with proper safety protocols? Negligence or recklessness regarding COVID protections on the part of an employer may trigger WC coverage anyway or give rise to a separate civil claim for damages.

Having WC coverage for a work-related illness, including COVID-19, offers significant benefits for workers:

· It can provide supplemental funding to replace lost wages when local mandates require the worker to quarantine because of exposure or contraction of the disease.

· It can also cover medical and healthcare costs for care and treatment of the disease, which can be especially high if there's hospitalization involved.

· It may also provide a basis for long-term medical care and costs if the ill person develops long-term symptoms or permanent organ damage from the virus.

· For workers who are also Medicare recipients (or within Medicare eligibility limits), having employer-supplied WC insurance to manage covid-related health concerns alleviates any future challenges that may arise with their Medicare benefits. The Mandatory Secondary Payer Act (MSA) prohibits Medicare from paying for healthcare expenses that are legitimately the legal obligation of another party.

Not having WC insurance coverage for a COVID infection eliminates these supports for workers who cannot work because they've contracted the disease.

Because of these critical factors, and even with the federal governance in place, how a state government elects to manage its internal WC laws can profoundly affect how well its labor force withstands and survives the pandemic.

Florida and Georgia: A Tale of Two States Florida and Georgia present two very different WC perspectives that provide a good contrast for how, despite a common workplace safety mandate, workers in one state will (most likely) do better through the COVID crisis than those in the other.

How They are Similar

In many ways, the two states are similar regarding their policies for WC insurance:

· Florida requires every business with four or more employees to carry WC insurance; construction businesses in the state must cover all employees, regardless of their number and even if they are contractors and not employees in the technical sense.

§ Georgia requires companies with three or more workers to carry the insurance.

· Florida requires coverage for part-time workers unless they are independent contractors not employed in the construction industry.

§ Georgia includes part-time workers within its 'employee' classification.

· In both states, achieving a WC claim resolution usually happens through a negotiation between the injured worker, the employer, and the insurance carrier.

§ In Florida, these negotiations encompass all aspects of the case.

§ In Georgia, settlements fall into two classes:

§ a liability class that resolves all the liability concerns with the insurer making the required payment, and

§ a non-liability class that results in a closed case even when there's a dispute about 'benefit eligiblity' amongst the stakeholders.

· Both states have statutes of limitations for their WC rules, which govern when an injured worker can file a claim after an injury or an injury-related event. With a few exceptions, Florida claimants have two years to file claims for WC benefits, to receive medical care, or for lost wages.

· Georgia divides its limitation statutory provisions into three provisions:

· Injured or ill workers have one year from the date of injury to file a claim;

· If the worker receives temporary, total, or partial disability benefits that end, they have two years after that date to file a claim, and

· Each injured employee has one year after receiving a bill for medical treatment to submit it to their employer or the insurance company.

Both states will assess civil or criminal penalties on companies that fail to carry WC insurance or to follow the rules within those jurisdictions.

How They are Different

While the two states mandate similar but not identical standards for worker's compensation purposes, they differ significantly in their determination as to whether they consider a COVID-19 infection a 'work-related injury' to trigger WC coverage.

Florida In Florida, in Spring 2020, 2020, the Chief Financial Officer issued a directive (2020-05) declaring a presumption of WC coverage for that the state's 'Frontline State Employees' who test positive for COVID-19. The directive defines 'Frontline State Employees' as workers who 'require substantial contacts with populations known to or suspected of carrying a COVID infection.' Those workers specifically identified in the directive include police and law enforcement officers, firefighters, emergency medical technicians, paramedics, those who work in the healthcare field, corrections officers, and the FL National Guard members. The directive also contains a clause allowing for the state to deny coverage if it can prove that the sickened worker did not contract the infection while on the job.

Within months, however, the challenges of trying to provide healthcare support for a very indiscriminate illness became apparent. By the end of July 2020, nearly 12,000 Frontline employees had filed for WC benefits due to a COVID infection (65% of all claims made within the previous four months), but state insurers have refused all or some coverage for almost half of them. Despite the consequent uncertainty roiling the state's business community, state lawmakers have not stepped in to address the situation.

Georgia

Unlike Florida, Georgia has not designated any individual occupation as one that is at higher risk of a COVID-19 exposure, so there are not yet any declared presumptions on behalf of frontline workers.

Instead, in August 2020, the Georgia governor signed into law the Georgia COVID-19 Pandemic Business Safety Act, which actually shields employers from liability for both workers and patrons who contract a COVID infection while on the business's premises. The law creates a presumption that anyone who enters a publicly open business or facility during the time of COVID-19 assumes the risk of contracting an infection. Therefore, the business owner is not liable for their illness, any injury it causes, or medical costs it incurs.

Remarkably, even healthcare facilities gain protection from liability unless their claimants can prove "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm" regarding contracting a COVID-19 while on the facility's premises.

Conclusion

At the heart of the WC/COVID liability question is the reality that no one - not employers, employees, or WC insurers - considered the possibility of a global pandemic when establishing the terms and parameters of the WC agreement. Add that confusion to the already delicate federal/state law balancing act, and it's become clear that employers, employees, and lawmakers will have a more difficult time resolving WC claims arising from a COVID infection. It appears certain now that the COVID pandemic will trigger a significant litigation boom, and that employers – in Florida, Georgia, and across the country – will have an even bigger struggle making sense of their roles in the worker's compensation/worker health and safety arena.

Why It’s Imperative to Keep Workers COVID Safe

Pam Sornson, JD

Even with vaccines being issued across the country, COVID-19 continues to pose a serious health threat, especially to those workers who must report to an office or out-of-home worksite each day. Not only can contracting the disease have lethal consequences, but it can also cause long-term side effects that interfere with the everyday enjoyment of life. Employers should take every precaution possible to avoid a COVID-19 exposure in their place of business and ensure that appropriate remediation policies are in place if it does. 

Worksite Workers May Get Sick More Often

According to investigations conducted by the U.S. Centers for Disease Control and Prevention (CDC) in summer 2020, people who routinely reported to a worksite or office each day were almost twice as likely to contract a COVID-19 infection as those who worked from home. Researchers came to the conclusion after comparing how often study participants visited other possible infection sites, such as grocery stores, gyms, or salons. Those numbers were similar for both at-home workers and in-the-office workers, indicating that exposure in the community was comparable between the two groups. The study also eliminated 'essential workers' from its cohort since those workers are more likely to be exposed to the virus simply because of the work they do. The CDC used the study to encourage employers and businesses to take every possible precaution to ensure a safe, COVID-19-free environment for staff members.    

An Expanding Complex of Symptoms

Avoiding a workplace exposure to the coronavirus is becoming even more significant as sufferers continue to report an ever-growing list of unexpected symptoms. Initially, when COVID-19 infections were first reported, the majority of reported symptoms were similar to those caused by an influenza virus and were primarily related to an upper respiratory tract infection: fever, cough, aches, fatigue, headache, etc. One symptom - loss of sense of taste or smell or both - appears to be unique to this disease.  

As the pandemic progressed, however, doctors were stymied by COVID patients reporting a plethora of symptoms that popped up during an active virus infection but weren't typically experienced as a consequence of an upper respiratory viral infection:

Gastrointestinal issues (GI)

Some COVID patients reported nausea, vomiting, and diarrhea in addition to the more typical symptoms, while others reported only these symptoms. In China, one study recorded more than half of its participants were experiencing GI symptoms.  

Skin changes

Skin rashes also developed in some patients, who described them as raised and painful bumps that showed up on various parts of their bodies that did not respond to typical, topical skin treatments. 

COVID toes  

In some patients, rashes presented as what became known as 'COVID toes,' swollen and discolored toes on one or both feet. While many sufferers noted just changes in toe color and size, others reported itchiness, soreness, and blistering. In some cases, the COVID toes were the only symptoms of the disease and presented well after their actual infection

 Hearing loss

Another confounding symptom reported is hearing loss, possibly caused by the coronavirus. Some patients report suffering an onset of tinnitus (ringing in the ears) after their COVID diagnosis, and one JAMA- Otolaryngology autopsy study found evidence of the virus in the middle ear canals of deceased patients. Several respiratory viruses are known to impact hearing, but those symptoms typically clear once the infection

is contained. With COVID sufferers, there have been reports of lingering deafness even after other symptoms have receded. The virus may also play a continuing role in balance and dizziness symptoms reported by many COVID-19 patients. 

Blood clots

Another worrisome, potentially deadly symptom that the virus may cause is blood clotting. One blood clot specialist, physician Alex C. Spyropoulos, MD, suggested that as many as 40% of hospitalized COVID patients at his hospital died because of blood clots, primarily because they cause such damaging incidents like heart attacks and strokes. He describes the disease as being particularly aggressive regarding the development of blood clots and that patients who have the virus are three to six times more likely to develop blood clots than those who don't have COVID-19.   

Brain fog

Perhaps the most troubling and surprising symptom reported by many COVID sufferers is brain fog or confusion. Sufferers report a cognitive decline during and after experiencing more acute symptoms and, in many cases, continue to struggle mentally long after the virus has cleared the body. Studies conducted at Indiana University's School of Medicine reviewed the cases of 1500+ COVID survivors and found that almost two-thirds (59%) stated they had difficulties focusing in the weeks and months after their other symptoms had resolved. 

'Long COVID'

That brain fog is apparently typical of what doctors are calling 'Long COVID,' the continuation of symptoms that linger well after recovery should have been complete. The most commonly reported 'Long COVID' symptoms are difficulty breathing, chronic fatigue, and migraine headaches. Increasingly, though, cognitive dysfunction is popping up on symptoms lists. In a global study conducted in fall 2020, researchers discovered that many Long COVID brain fog sufferers couldn't return to work at full capacity for at least six months after recovering from their more acute COVID symptoms.

The study also attempted to gather into a single list all potential symptoms caused by the coronavirus. Reviewing the files of over 3,700 people, researchers recorded over 200 individual symptoms that affected ten different systems and 66 symptoms that lasted seven months or more.     

Employers Take Note

Even with the emerging health data indicating that a COVID-19 infection can cause significant havoc in a worker's life, many employers around the country are still reluctant to assert formal COVID-19 prevention practices at their workplace. In some cases, this reluctance may be because local governments haven't issued them, and business owners don't want or can't afford to incur the expense necessary to make those changes

In other cases, however, companies ignore new regulations designed to keep workers safe. In Michigan, for example, the state's Occupational Safety and Health Administration (MiOSHA) recently issued 23 citations against companies that violated its COVID-19 related "Emergency Rules," with each violation carrying a potential fine of up to $7,000. What makes these incidents so dismaying is that the breaches were so readily avoidable: the three most cited violations across all cases involved failing to require face masks, failing to maintain social distancing, and failing to have a preparedness and response plan ready in the event an infection was discovered. Each of these elements can be relatively simple to implement and enforce, especially when the health of a worker and the business itself are at stake. 

Why employers expose their workers to such potentially damaging conditions is a mystery. If nothing else, lingering brain fog and confusion should be of great concern to companies that rely on their workers to perform at optimal levels most of the time, especially those whose work entails precise movements or activities. Further, an undetected but infected worker also has the capacity to infect business colleagues and customers, which escalates the risk of loss to the business. In all cases, even just one case of COVID-19 at a workplace carries the potential for an expensive worker's compensation claim, and may even trigger a more serious civil claim, to boot.  

Follow Federal OSHA Guidelines 

The fact that there are many states that have not yet adopted COVID-19 safety rules shouldn't deter a company from implementing them anyway using the guidelines issued by the federal OSHA agencyFederal OSHA details the many steps needed to make a corporate facility ready for worker occupation again, especially those that have been shuttered due to coronavirus lock-downs. The organization also details the steps necessary to bring a worksite into compliance with federal COVID-19 standards, including conducting a hazard assessment, developing policies that protect worker safety, and maintaining open communication channels for workers who wish to report a COVID-19 related concern.     The emerging health data should act as a warning to employers who have not yet implemented employee safeguards to prevent or curtail the spread of coronavirus disease in their offices and workspaces. While some may think that such precautions are unnecessary, it's becoming increasingly clear that leaving anyone at risk of infection could have long-term consequences that may not take a life but still seriously curtail or negatively impact a worker's life. And even one sick worker imperils the health of the business itself. 

COVID-19 Costs to Medicare Beneficiaries – Who Pays for Those?

According to recent research, the COVID-19 virus has impacted America's aging population more than almost any other group. The diagnosis carries with it almost certain and dramatic changes in lifestyle and capacity for afflicted Medicare beneficiaries, many of whom are now concerned about the subsequent costs they may have to bear as a consequence of getting sick. While Medicare is working to address the challenges posed to this population by the virus, including how to cover those costs, some employed beneficiaries might find another resource through their worker's compensation insurance.    

Higher Age = Higher Risk of Serious Illness

The data suggest that Medicare beneficiaries or those who become eligible for that status within two years are more apt to get seriously ill should they contract the 2019 novel coronavirus. That reality is a major concern both for Medicare beneficiaries who have not gotten sick, as well as those who have employed it. As of winter 2021, over 62 million Americans were enrolled in Medicare, including those who engage through a Fee-For-Service model (FFS) and those who engage through a Medicare Advantage program (MA). 

Between January 1, 2020, and November 21, 2020, of those 62+ million seniors:

Many in these groups also suffer from a co-occurring health condition, which complicates both the significance of their illness and their recovery and long-term capacity. A large percentage of the FFS beneficiaries (79%) were also diagnosed with high blood pressure (hypertension); 49% were also diabetic, and another 49% suffered from chronic kidney disease. 

Age + Illness = Expense

The age and complicated medical history of these seniors increase the likelihood that they'll suffer more significant damage due to the disease. That situation will almost certainly generate higher costs, as well, for both acute and long-term treatments, a fact which concerns over 80% of participants in a recent MedicarePlans.com survey. Additional research indicates that they are rightfully concerned about a COVID-19 diagnosis's financial fall-out. Because of the variety of available Medicare plans and the varying terms each of those contracts contains, some Medicare beneficiaries will pay more for COVID-related healthcare services than others:

Basic Medicare

Medicare Advantage Plans

Approximately 24 million beneficiaries receive their Parts A and B Medicare benefits from a Medicare Advantage program, which also usually includes prescription drugs. 

Medicare Advantage plans also cap annual out-of-pocket costs; in 2021, that figure is $7,550.

Medicare Costs Looking Forward

Medicare is also looking ahead to determine how it can assist the country in meeting its future COVID-19 threats:

The cost to Medicare for COVID-19-related care was estimated at approximately $7.4 billion just for FFS COVID-19 hospitalizations between January 1 and November 21, 2020, with an average of $23,500 per hospitalized case. 

Another Payment Alternative

Despite the pandemic, many Medicare beneficiaries continue to work. A 2017 survey indicated that the 'Baby Boomers' (those born between 1946 and 1964) were not interested in retiring early. The employment growth rate for their 65-74-year demographic was likely to surpass 60% between 2014 and 2024. Clearly, COVID-19 has slowed that progress, but there are still millions of seniors who continue to work despite the turmoil caused by the disease. Sometimes that work may increase their risk of experiencing a COVID-19 exposure. 

If or when that exposure occurs, many of these workers may have another option instead of Medicare to cover their COVID-related healthcare costs. Many states now recognize that COVID-19 can be contracted through employment-related activities and therefore can be considered a 'workplace injury' for purposes of receiving workers' compensation insurance coverage. However, if or when they make that claim, they should also be sure to establish a Medicare Set-aside Account (MSA) to protect their Medicare funding for future healthcare costs that are unrelated to their COVID experience. 

Today's Medicare recipients and eligibles are facing more than just a devastating health threat; they are also contemplating possible impacts on their economic situation should they contract the virus. However, those who are working may have the opportunity for their worker's compensation insurer to pick up COVID-19 related costs to preserve their Medicare healthcare funds for future use. They should explore that possibility at the first sign of illness,    

Nuances on Achieving MSA Approval

Last month, we covered the 10,000' view of the system used by the Worker's Compensation Review Contractor (WCRC) to determine the merits of a Medicare Set Aside (MSA) account proposal. Not surprisingly, each separate element of the system also includes a series of smaller systems designed to clarify ever more granular information about the injured party, their injuries, their prognosis, and who will be covering those healthcare costs going forward. MSA professionals who master those more precise details are better prepared to achieve a swift and successful MSA acceptance when submitting their client's proposal.

 

Three Rules to Remember

When developing an MSA proposal, it's easy to miss critical but tiny details when your focus is on the much larger picture. However, in many instances, it is because of errors, confusion, or lack of the information that should be contained in these details that proposals get rejected or delayed. Delays occur when the WCRC doesn't get the data it needs to conduct a thorough review. Rejections happen when ill-prepared proposals reveal a claimant who is not eligible for Medicare, whose case doesn't meet the threshold, or when the case's legal issues aren't resolved (among many, many other reasons). Both delays and rejections are expensive because they mandate either additional work or waste the work that's been done. They also drag out the case for a longer period of time, incurring additional legal and other fees for associated services.

 

Here are three rules to remember when crafting an MSA proposal. Professionals who want to achieve the swiftest acceptance of their accurate and appropriate MSA proposal will have paid particular attention to these suggestions.

 

1)      Don't Skip the Prerequisites

It's best practice to ensure that all essential information is accurate and included in every MSA proposal, yet, often, it is these precise details that get missed.

 

Complete Information about the Claimant

In addition to the basics, the Claimants' name, date of birth, address, and Medicare Identity number (or social security number if not yet Medicare-eligible), the proposal must also include:

 

Proposals filed on behalf of claimants who are Medicare eligible must include:

 

Complete Information about the Legal Case

Because a workers’ compensation claim is at the heart of most MSA proposals, it is crucial to include:

Additionally, it is important to list out the details of the proposed settlement costs, including the total proposed settlement amount, which should cover economic values for:

Perhaps most importantly, include the total and detailed itemization of the proposed MSA amount, including the presumed costs of both medical care and drug costs. This itemized value is the cost Medicare would avoid paying because the WC insurer is assuming that obligation.

 

Complete Information about the Substance of the MSA

The proposal should also include clear documentation for each element of the MSA case - those details that are of specific interest to Medicare, including:

 

 

Complete Information about the Administration of the MSA

In addition to the factors indicating the case's financial resolution, the WCRC is also interested in the administration of the MSA once it is established. The MSA proposal should, therefore, include data detailing these activities, such as:

 

 

2)      Don't Muddy the Water

It's not unusual for an MSA proposal to include more than one injury, and CMS details how to manage those circumstances, too.

 

Document, Document, Document

The mandate to protect Medicare from paying for costs that aren't its rightful obligation is always the WCRC's primary concern, and multiple claims within a single submission can cloud the specifics of each. Ergo, asserting numerous injuries in a single MSA proposal also triggers the requirement to provide additional information to inform the WCRC about the proposed resolution of each of the cases. In these cases, the WCRC separates out each case according to the relevant date of injury (DOI).

 

Start at the Top

It is critical to inform the WCRC in the cover letter:

 

The WCRC wants assurance of a complete accounting for each individual claim, so it will look to the Claimant's proposal for information supporting those declarations. Some Claimants can lump all the DOI cases into a single MSA amount and are also able to describe how those distributions will work in execution. Other Claimants may separate each DOI case into a separate MSA and build out those MSA amounts accordingly.

 

If the WCRC doesn't get enough information about managing multiple injuries, it will close the file until it receives that data in writing.

 

Parse Out the Data for Each DOI

The proposal should include all relevant information identified by DOI regarding accepted and alleged injured body parts. Most helpful for the WCRC reviewer are the appropriate ICD-9 or ICD-10 codes (noting that the ICD-9 codes apply only to injuries sustained before September 30, 2015). Accompanying the codes should all associated payment histories, medical records, and detailed prescription histories for all medications received as a consequence of the injury.

 

Note, too, that if less than all claims have resolved sufficiently for an MSA discussion and claims will remain open, then the overall case is not yet eligible for review. 'Open' cases include those where there are some body parts still receiving treatment, where the insurance carrier continues to pay from some but not all treatments on a particular body part, or where medical claims are settled but pharmaceutical claims are not.

 

3)      Don't Miss the Mark on the Drug Data

A significant percentage of every MSA proposal covers the cost of prescription medications, and the WCRC will pay careful attention to the adequacy of the proposed prescription drug costs.

 

All treatments included in the MSA proposal must also be covered by Medicare and follow both national and local coverage guidelines.

 

The Medicare Set Aside account provides the best possible support for an injured worker who needs ongoing medical care for that injury. When carefully crafted and correctly submitted, the MSA proposal avoids unnecessary delays and provides the documentation required to get the account established and the Claimant moving forward.

The MSA – A Nexus of Legal and Medical Interests

Just as no two car crashes are the same, neither are two Workers’ Compensation cases (WC), especially when the need for a Medicare Set Aside (MSA) account is a possibility. To ensure the protection of the interests of both the injured worker and the Centers for Medicare and Medicaid Services (CMS) throughout the WC claim process, CMS uses both medical and legal principles to confirm the values submitted in every MSA proposal. Companies submitting MSA proposals should be familiar with those principles to avoid unnecessary delays or other complications when working to resolve the case.

 

No Two Injured Workers are the Same

Lawyers will tell you that every legal case is unique. Even incidents with almost identical fact patterns will differ based on the individual circumstances of those specific occurrences. Doctors will tell you the same thing; patients with identical diagnoses will have different treatment plans and prognoses based on their biological circumstances. Consequently, when the Workers’ Compensation Review Contractor (WCRC) reviews an MSA proposal, they look at the individual and unique circumstances of both the legal and medical situations when deciding to accept, modify or reject it. Not surprisingly, those reviews are comprehensive and complex. WC claimants and parties to the WC case who understand and follow the WCRC's procedural review guidelines stand a better chance of obtaining a swift response and acceptance of their proposal so they can resolve the case and move on.

 

New Guide - Clearer Guidelines

CMS recently updated its Workers’ Compensation Medicare Set Aside Reference Guide (now version 3.2) to clarify the steps its WCRCs take when reviewing submitted MSA proposals. Any party seeking an MSA should follow these guidelines and use the same tools used by the WCRC to determine the values they include in their documents.

 

Legal Principles and Factors

The WC case incorporates both legal and medical factors. To resolve the issues in the legal proceeding, the parties work together to determine the exact cause of the injury, who (or what) was responsible for causing it, the nature and extent of the damage, and who will pay for the medical costs needed to help the injured worker recover from it.

 

The WCRC begins its review by ensuring all the legal requirements are met and appropriate:

 

Medical Principles and Factors

The medical evaluation is more complicated than the legal review. Every claimant presents with individual characteristics, each of which can influence how they experience their injury, the choice of treatment they receive, and the nature and extent of their recovery period. To properly evaluate every claimant, the WCRC team uses a series of tools to ensure their review is as comprehensive to that individual as possible.

 

The MSA Proposal Review

After the relevant medical and legal elements are clarified, the WCRC then reviews them to determine whether the MSA values suggested are appropriate in this circumstance. This review also looks for other factors that might influence their final valuation estimate. Questions they might ask include:

The WCRC team also reviews the details of treatment and therapy already received as an indicator of the level of treatment that may be needed in the future. This review includes not just doctor visits and lab tests but also pharmaceutical recommendations and allocations, specialist inputs, and any other factors that might influence the claimant's recovery period and the cost of future medical care. At any time in the review process, the team can send the proposal back, requesting more information or corrections for information previously submitted.

 

Getting to Approval

The WCRC team looks at all this documentation to determine whether the proposed future treatment costs - medical, pharmaceutical, and therapeutic - are acceptable, given the parameters and protocols required by CMS and MSA rules. When they conclude the review, they submit a recommendation to CMS about accepting the proposal and whether it protects Medicare's interests:

 

Developing an MSA proposal requires attention to detail and extensive legal and medical knowledge. The revised Reference Guide provides a roadmap for MSA professionals to craft a comprehensive document that should move quickly through the CMS approval process.

 

 

 

The New Business "Best Practice:"

Last month, we discussed how the lack of CMS guidance in liability cases leaves Medicare and Medicare-eligible people ('Beneficiaries') in the dark about paying for injuries and illnesses they've developed due to exposure to the coronavirus. Many companies count on those populations to make their living. Potential coronavirus exposures that occur in their place of business are now creating liability exposures if/when their clients and customers can tie those exposures to their time within those walls. Those company owners who want to both open their enterprise and reduce their risk of liability for inadvertent COVID-19 exposures should review their reopening processes carefully and build in as many "virus-avoidant best practices" as possible.

 

It's No Longer Business as Usual

It's hard to know where to start reopening a business that has been shuttered since the onset of the COVID-19 pandemic. Every company that routinely welcomes paying customers onto their premises must make accommodations to keep them safe from a potential coronavirus exposure. Employers are doubly taxed: they must provide as safe an environment as possible for their workers and their customers. Not only could an outbreak at their site create resonating workers’ compensation issues, but it also poses a risk of liability issues when it's a customer who falls seriously ill with the disease.

 

And those concerns layer over the challenges arising when trying to resume 'normal' operations:

With so much to think about, it seems apparent that moving forward requires a well-thought-out strategy that balances every contingency, identifies and manages each risk, and maximizes as much as possible the profitability of each transaction.

Managing the Risks Inherent in Reopening During the COVID-19 Pandemic

Perhaps the biggest threat to the reopened company is the risk of inadvertently causing a COVID-19 outbreak. Company owners must manage two separate but similar concerns to ensure their enterprise isn't the next COVID-19 hot spot:

 

Protecting Workers

Some businesses have a higher risk of triggering an outbreak simply by their nature. Restaurants, hotels, gyms, and spas, to name just a few, must welcome the general public to stay in business. Their workers, therefore, are exposed to whatever contagions their customers carry. The close physical proximity and being indoors contribute to the spread of the virus among patrons and staff alike.

 

From a workers’ compensation point of view, the answer to one specific question arising from the situation has the potential to impact every employer in the country:

 

Is COVID-19 an 'Occupational Disease'?

Traditionally, the employer's workers' compensation (WC) insurance policy covers both injuries and 'occupational diseases,' when those arise within the 'course and scope' of the job. The coronavirus and its consequent disease, COVID-19, present a new wrinkle in the discussion about what constitutes 'course' and 'scope' of employment.

 

'Occupational diseases' typically develop when workers are exposed to toxic substances or materials inherently contained within production processes or employment practices. Firefighters and coal miners frequently develop occupationally-caused lung diseases related to the inhalation of toxic fumes and dust. Healthcare workers often contract the highly infectious conditions they find in their patients, such as tuberculosis or hepatitis.

The coronavirus is not an 'occupational disease' in the traditional sense because its contraction isn't limited to a specific occupation or job. Instead, because it spreads via airborne particles exhaled wherever an infected person might go, it can infect anyone in any position when there are insufficient protections in place to prevent that infection.

 

The hospitality industry is particularly vulnerable to triggering coronavirus outbreaks because of the frequency of customer turn-over. The more people there are entering the business, the higher the risk that one of them is an asymptomatic person carrying the virus, who, thereafter, unknowingly infects a staff person. Because hospitality workers must - by the nature of their work - interact with potentially infected customers, they can argue that their subsequent infection was, indeed, contracted within the 'course and scope' of their job. Their healthcare costs should be born by their employers WC insurer. The argument tries to move the job-related COVID-19 infection into that class of employment-related 'occupational diseases' that enjoy a "presumption of compensability:" if you contract the virus from a presumed work-based source, then your related healthcare costs are expected to be covered by the WC insurer.

 

Not surprisingly, there is a lot of push back against the 'presumption of compensability' that limits the employer's opportunity to point out the worker's other possible transmission points (family members, i.e.) and thereby deflect the burden of added COVID-19-related WC premiums.

Also, not surprisingly: those arguments and more are now the focus of discussion for more than one state government and WC insurer.

 

Protecting Customers

We noted last month our belief that COVID-19 cases will trigger thousands of liability lawsuits, as infected sufferers look for ways to obtain and cover the cost of the healthcare services they need. For sufferers who are also 'Beneficiaries,' those lawsuits will take on added significance. This population is at risk for worse infections with more severe symptoms and often take longer to recover. Further, because they often also have underlying health conditions that complicate their COVID-19 case, they are also more likely to suffer permanent damage and injury. In those cases, they will need COVID-19-related healthcare services for the rest of their lives. Lawsuits filed by members of this population will provide the necessary evidence to ensure that CMS doesn't bear the brunt of those added COVID-19-related expenses in its future healthcare payments. By bringing the suit, Beneficiaries will have access to a separate healthcare fund without imperiling their future Medicare healthcare coverage.

 

Sensible Precautions for All Populations

Fortunately, implementing safeguards and precautions to prevent business-based coronavirus infections protect all populations as much as is possible, considering what is currently known about how the virus spreads. Today's best business practice is implementing a virus-protection plan to avoid getting hit with unnecessary WC or liability claims for COVID-19 infections.

 

There are two fundamentals to consider when developing your plan: how to make the physical plant safe, and how to modify business practices to keep workers and customers safe.

 

Steps to Safeguard Your Workplace

A walk through the place of business and a review of current practices will each reveal vulnerabilities that might cause a virus exposure. Manage whatever threats exist, then change your policies to prevent those risks from emerging again.

 

It's abundantly clear that covering the healthcare and related costs of just one COVID-19 case are high, and that they become exponentially greater when staff and customers are the sufferers. Establishing appropriate safety precautions throughout the enterprise to protect both staff and customers is imperative for every business struggling to keep afloat in the wake of the COVID-19 pandemic. It's always better to prevent a disaster than recover from one, and all too often, a COVID-19 outbreak has caused the demise of many excellent companies. Don't let yours be one of them.

 

The MSA & Liability Cases: Who’s Going to Pay for That?

Decades of continuing silence on the role of Medicare Set Aside (MSA) accounts in liability cases may prove disastrous in the face of the injuries and damages caused by the COVID-19 pandemic. America's aging population is growing, and more people reach Medicare-eligibility every day. Any injuries they suffer due to the virus and its debilitating disease will become an issue for the Centers for Medicare and Medicaid Services (CMS).

 

 

Liability Cases Raise Different Issues than Workers Compensation Cases

The challenge is this: any entity - any business, any service provider, and even any individual - could be found liable if something they did or didn't do is proven to have caused a COVID-19 infection in a successful plaintiff. When that plaintiff is also a Medicare recipient or is Medicare-eligible (Beneficiaries), resolving the liability case should also include the establishment of an MSA to ensure compliance with the Medicare Secondary Payer Act (MSP) and to protect CMS from paying for injuries that are rightly attributed to that primary payer.

 

However, that there are no clear rules in place regarding MSAs in liability cases will create havoc for all entities involved in the issue:

 

There’s Not So Much Awareness of MSAs in the Liability Community

Most employers and insurers are aware of the MSP obligations mandated when Beneficiaries are injured on the job (although many entities are looking to limit that liability for workers who contract COVID on the job). However, the general public may not be mindful that those mandates also apply to non-WC cases where a person or entity is deemed responsible for injuries occurring to a Beneficiary outside the workplace setting. The majority of the general public may not have ever heard about the MSP. They aren't aware that the Act requires no-fault and liability insurance to be the primary payer for accidental or 'other situation-related health care services, claimed or released' when the injured party is a Beneficiary. When these cases arise (and they will), those entities grappling with confounding legal concerns will be even more baffled by a lack of CMS guidance on the wisdom of including MSA calculations for the liability lawsuit.

 

Making things worse are two aspects of the pandemic that are converging ominously:

 

The American Population is Aging

The 'Baby Boomer' generation, those born between 1946 and 1964, is aging, and now numbers more than 52,000,000. In 2011, the first wave of these 'Boomers' hit Medicare eligibility, and the last of them won't cross that threshold for another nine years. Further, of the 52 million, approximately 45 million are retired and drawing their Social Security Benefits. Those who contract the COVID-19 virus and require medical help to recover from it will have to find another healthcare resource to pay for those services. For many, that identity of that resource may only be revealed in the courtroom.

 

Non-Workers are Beneficiaries, Too

Almost everyone in that older population group has the potential to be a Beneficiary plaintiff:

 

 

 

 

 

 

 

Still No CMS Guidance on MSAs for Liability Cases

The CMS has promised some form of 'guidance' on using MSAs in liability cases for years. In its Fall 2018 notification, CMS indicated that the new rules would give Beneficiaries better opportunities to manage their future healthcare needs while also protecting Medicare's interests. It suggested the new guidance would be issued sometime in 2019. That didn't happen.

 

Instead, in 2020, an updated notice stated that the new rule would 'clarify' that it would be the Beneficiary's responsibility to protect Medicare's interest in the liability suit and that more information would be made available by August. August has now come and gone, and still, no word from CMS about the liability MSA question.

 

The delay is, however, causing its own angst:

 

 

 

Clearly, the process of designing and implementing an MSA strategy for liability cases involving Beneficiaries is complex at the best of times. The COVID-19 pandemic makes these, arguably, the worst of times to be mandating the use of such a complicated tool in an entirely new class of cases. However, the MSP is clear: Medicare is the mandatory secondary payor for Beneficiary healthcare costs caused by a third-party. Failing to clarify that point in any Beneficiary-related liability lawsuit threatens the stability of that case resolution, and/or opens CMS to risk of using Medicare funds to pay for another entity's errors.

 

What we do know is this:

 

 

 

 

There are (most likely) a lot of Beneficiary-related, liability-based lawsuits on the way. Planning now to manage a possible CMS MSA application within them will save all parties time, money, and stress.

Coverage in the Age of COVID-19

The COVID-19 pandemic has dramatically changed life around the world, halting whole global industries while shutting down cities, regions, and countries. The necessity of shuttering a company due to the coronavirus has caused immense financial and personal distress in virtually all industrial sectors. Millions of workers no longer have jobs as their employers closed up their business before its staff could transmit the virus. For many companies, that stress will be ongoing until society contains the spread of the virus, a valid vaccine is issued, or both.

 

At the same time, millions of others have also remained on the job, continuing their daily work despite the virus that permeates their community. Some fortunate employees can work from home, where they can stay both productive and safe. However, the nature of work of others exposes them to risks that did not exist before the time of the COVID-19 pandemic. Many of these 'essential' workers must continue clocking in, knowing that the style of their work or the people they serve might make them vulnerable to catching the coronavirus themselves. For these employees, the question of whether they can file a Workers’ Compensation (WC) claim because they got infected on the job remains unresolved.

 

When Not Working is Not an Option

'Essential' businesses provide or maintain the country's fundamental infrastructure: its food supply, energy supply, healthcare services, and more. Without them, other essential workers who are actively battling the virus would have no resources available to sustain their effort.

 

From a WC perspective, however, these essential workers are regularly exposed to the virus while at work. Their employers are rightfully nervous about a variety of possible scenarios:

 

The challenge is heightened by the fact that liability issues may arise if WC coverage is not available. COVID-19 has created a nightmare scenario for both workers and employers, where neither group has an assurance that the systems they have in place will protect them if they are affected by the virus.

 

WC Standards Also Cause Confusion

Fundamental realities of settled WC law may or may not apply to COVID-19 cases, but they will certainly pose a hurdle to those who want to resolve these claims expeditiously.

 

At first blush, several initial questions come to mind:

 

Monitoring Medicare Concerns

Employers who have employees who are (or soon will be) eligible for Medicare, or who already have a Medicare Set Aside (MSA) account should be very attentive to those life circumstances while the pandemic remains extreme. In many cases, these workers are members of vulnerable populations due to their age, ethnicity, etc., and a coronavirus infection could prove fatal to them.

 

Both situations raise questions about how the healthcare system will engage with those workers if they become sick with COVID because of their job. They will also muddy the legal water around the extent of the employer's mandate to cover the cost of work-related injuries or illness when those injuries occur due to a COVID-19 infection.

 

Eligible or Soon to be:

Workers who are moving onto the radar of the Centers for Medicare and Medicaid Services (CMS) because of their age or disability status must be conscientious about how they manage and record their risk of exposure to the virus. Most, if not all, of this population group will already have some form of pre-existing condition that will be covered by CMS funds once they begin drawing from their Medicare healthcare account. Assuming the worker can prove they became COVID positive while in the course of their employment, they'll also need to specifically parse out the healthcare services received in response to that illness and attribute those costs to the WC funder. It's crucial that they don't bill CMS for those expenses. They should also note that the COVID-19 disease may exacerbate their pre-existing conditions, which may require long-term WC coverage through an MSA to cover the expenditures flowing from that element of their recovery.

 

Workers with Existing MSAs

These workers have an established MSA account for a previous on-the-job injury, and the care they receive for that should not be affected by the fact that they've contracted COVID-19. However, they should note that many healthcare facilities are overwhelmed by treating COVID cases, so their ongoing treatments may be delayed or postponed until after the pandemic subsides.

 

This situation also raises the question of what would happen if the worker caught COVID on the job, got sick, and developed permanent damage requiring long-term medical services. Would that worker need to pursue an independent MSA to cover those costs? Could they add those costs to their existing MSA and have the WC carrier increase that fund value?

 

Again, careful diligence about recording healthcare practices and adverse symptoms by both eligible and existing Medicare recipients will help them determine how contracting the virus at work will affect their Medicare or Medicaid funding in the future.

 

Conclusion

This coronavirus is changing virtually all aspects of American life, including how workers receive care for on-the-job injuries or illnesses. The patchwork of state-by-state WC laws will enhance the confusion as those industry stakeholders struggle to comply with both their local and federal regulations around WC injuries and healthcare services. One thing is certain, however: the COVID-19 pandemic will cause not only millions of illnesses but also changes to long-settled WC laws as employers, employees, insurers, and government work to 'standardize' an unmanageable situation.

CMS is Hard at Work in Summer 2020

Incoming Changes to WCMSA Activities

Even in the face of the health and civic challenges the country is enduring, the Centers for Medicare and Medicaid Services (CMS) maintains its pursuit its institutional goal of keeping its constituents current with evolving standards. Recently, the CMS issued two new directives, one for MSA calculations and one for improved MSPRP portal functionality, which became or will become operable on April 25 and July 13 of this year, respectively. Readers are encouraged to update their practices and policies to reflect the changes.

 

New 'Life Table' for MSA Life Expectancy Estimates

On April 25, the Agency switched over to using the 2017 version of the United States Life Tables for calculating life expectancies, as the National Vital Statistics Report publishes those. The 2017 table replaces the 2016 schedule, which has been in official use just since October 12, 2019. The newer version, reflected in Manual Version 3.1 released May 11, 2020, reflects the differences in life expectancies revealed by 2017's final mortality data.

 

The CMS uses life expectancy tables for many reasons, only one of which is to calculate an estimated term for the duration of a Medicare Set-Aside Account (MSA). The life expectancies' statistical values provide guidance for MSA participants to determine the number of years and the projected value of costs to include in the overall calculation of the MSA financial reserve.

 

Many Uses for Life expectancy Data

The availability of an MSA is an enticing option for anyone who suffers a debilitating injury that will impede their earning capacity for their foreseeable future. The account will ensure that the costs incurred because of those injuries will be paid for by the entity legally responsible for making those payments. Only a small percentage of Medicare-eligible or recipient people will suffer injuries that will require the establishment of a life-long MSA. At this time, only those injured on the job and who have Workers’ Compensation claims are specifically identified as appropriate candidates for an MSA. However, CMS has recently been considering also adding cases involving injuries legally caused by neglect or intention (claims arising from 'liability' cases) to their roster of 'encouraged' MSA candidates.

 

But, as an agency, CMS also has an interest in establishing an MSA for any person who may need long-term funding for injuries AND who is also Medicare-eligible or will be eligible for Medicare within two years. By law, CMS is responsible for funding healthcare costs for millions of current and future Medicare beneficiaries. The Agency must manage the funding received for that purpose to allow for comprehensive coverage as its recipients need it, and that pool of beneficiaries is growing as the general population ages. Also, by law, however, CMS is NOT responsible for covering healthcare costs for injuries or damages caused by a third-party, such as injuries that occur in a job-related accident or car crash. Any healthcare costs attributable to those injuries must be paid for by the legally responsible entity. To establish an MSA for any reason, the claimants must clarify which entities are responsible for covering costs of specific injuries or damages, to ensure that Medicare doesn't inadvertently pay for something that is rightly the responsibility of another person or company.

 

Data Reveals Significant Changes

CMS's capacity to properly manage Medicare payments is becoming more complex, too. In just the last ten years, the number of Medicare recipients has more than doubled, rising from 11.1 million in 2010 to over 24 million today. By 2060, the number of Americans aged 65 and over will grow by 23% (up from 16% in 2018). CMS will be responsible for funding the healthcare services for most, if not all, of them. During that same decade, as well, improved living standards and evolving healthcare capacities are also helping Americans live longer lives, and the healthcare funding supplied by CMS will have to cover those extended lifespans as well. Accordingly, when Medicare-eligible people or recipients are injured, their potential lifespan - the number of years they expect to live - becomes an integral factor in the calculation of their long-term healthcare costs.

 

According to the Vital Statistics Report, between 2016 and 2017, overall life expectancies declined by .1, from 78.7 years to 78.6 years, for whites in general (primarily white males) and non-Hispanic whites. It did not change for blacks, non-Hispanic blacks or Hispanic populations, however. MSA applications submitted on or after April 25, 2020, are required to be calculated per the new statistical measurement. Considering the size of the Medicare-eligible population, even small drops in lifespan can make a difference in long-term CMS funding decisions.

 

 

 

Making CMS Recovery Cases Easier to Manage

 

As readers know, CMS works hard to recover payments made on behalf of Medicare beneficiaries that should have been made by other parties or entities. The recovery of unnecessary fees is critical to the mission of CMS, which must limit its healthcare coverage payments only to legitimate Medicare and Medicaid beneficiaries, including those who have established a Workers’ Compensation Medicare Set-Aside Account (WCMSA). The CMS Benefits Coordination and Recovery Center (BCRC) will open a recovery case to retrieve funds when the Agency makes provider payments erroneously or as a conditional payment made before the establishment of legal liabilities.

 

To facilitate the recovery action, the BCRC provides an online portal - the Medicare Secondary Payer Recovery Portal (MSPRP) - through which third-parties and MSA case participants can communicate about recovery case data and details. Cases that originate through the BCRC and through the Commercial Repayment Center (CRC) can be managed through the portal. Users of the portal include claimants, their representatives, attorneys, insurers, beneficiaries, and recovery agents. The portal allows users to interact digitally with the Agency about the case, whether they're requesting updates, contesting claims, or signaling that a resolution has been reached, among many other actions.

 

In recovery cases, the Agency has begun proceedings to retrieve reimbursement of previously made payments from the claimant or party that is ultimately responsible for paying an obligation. To maintain current recovery-related communications among the parties and with CMS, users can access the portal to retrieve files needed to support their claims or record their activities. The recovery case file is organized around the various actions taken by both the Agency and case parties and includes tabs related to:

The portal helps users find the information they need to respond to, defend, and resolve the recovery case.

 

Currently, however, the portal isn’t particularly user-friendly. Users haven't been able to view or print documents contained in the Letter Activity tab, which has hindered their capacity to maintain a complete file of documents issued by the Agency, or track case developments. CMS has recently remedied that situation, however, and, as of July 13, 2020, users who access the site through double authentication procedures will be able to both view and print the documents they seek through the portal's Letter Activity tab.

 

The Letter Activity tab is rife with crucial case data because it contains all the documents generated by the Agency concerning the claim. Maintained chronologically, each record sets out information about the status of issues arising within the materials, including the opening date of the document, its closing date, and a sent date if the Agency moved the matter onto another agent or office.

 

Accessing the portal to view and print documents gives users better control over the information they need, so there is no longer any confusion about the opinion or standing of the CMS at any point within the recovery case. The CMS issued version 4.8 of the MSPRP User Guide on March 30, 2020.

 

 

 

 

 

 

 

 

 

 

 

COVID-19 and the Evolving Landscape of WC Litigation

For America’s employers, the COVID situation is creating havoc. Those who have shuttered their businesses for the duration of the crisis may not be able to open again once it subsides. Those who are open, however, especially those that offer essential services like grocery stores, are finding themselves facing workers’ compensation (WC) concerns that are unique to this pandemic. These businesses are already facing the challenges that typically arise from public crises and their subsequent recessions. Now, they must also navigate the new world of work-related injuries and illnesses directly related to the COVID-19 virus itself.

 

Nowhere is that concern more significant than in those companies whose workers are on the front lines of the challenge.

 

Healthcare Organizations

The healthcare industry, as a whole, is reeling from the effects of managing the virus. Not enough supplies and too many patients have overwhelmed entire healthcare systems. As the pandemic evolves, healthcare workers themselves are contracting the disease caused by the virus, which reduces the number of people who work in the clinics and wards. Further, the virus is not only impacting the capacity of the medical professionals, but it is also compromising the capacities of lateral and support services upon which they rely, such as lab services, clinic technicians, and even the janitorial crews. Employees working in a healthcare setting or with healthcare professionals are exposed to a heightened risk of being infected with the virus.

 

First Responders

Community services providers aren't immune from the concern, either. Firefighters, ambulance personnel, and distributed healthcare clinic workers, as well as the staff who work with them, are also exposed to the virus through their work. Frequently the first on the scene of a healthcare crisis, these workers face any number of threats posed by the environments in which they find their patients, in addition to the threat posed by the virus, all of which increase the likelihood that they will suffer an injury or illness while on the job.

 

Essential Services Personnel

Services deemed 'essential' are those that provide the goods and services people need simply to survive even when there isn't a viral threat in the air. Grocery stores, gas stations, pharmacies, and the like provide vital supplies that keep communities functioning. However, every day, their workers face health threats posed by shoppers who are infectious but not yet symptomatic, a circumstance that is unique to COVID-19. Without knowing they are infected, these workers can infect their coworkers and customers for days before they become symptomatic themselves.

 

The organizations and businesses that employ these vital workers must now attempt to prevent the virus from causing illness or injuries in their workplace. The fact that there is still much that is unknown about the virus and few proven resources available to avoid or combat it makes their jobs that much more difficult.

 

Consequently, today's employers are not just facing increased WC and SSDI claims due to the unemploymentcaused by the coronavirus, but they are also facing a new wave of a different type of WC created by the health threats caused by the virus.

 

COVID Will Change WC Litigation

The unique and evolving constellation of symptoms and conditions caused by the virus are not just confusing medical personnel, however. Legally, there are new challenges presented by the virus that have never before been seen by the WC and legal systems. As cases flowing from these issues mature and claimants seek support as they recover, their claims will most likely change how work-related COVID cases - and cases originating from the pandemic itself - are managed in the legal setting.

 

Legal Cause Concerns

One fundamental legal mandate will trigger much of the incoming legal deluge: proving 'cause.' The legal system flows from a simple relationship: cause and effect. Lawyers must identify the cause of a legal issue and connect the damage that it creates (its effect) directly with the entity presumed responsible for the action or situation where the injury or damage occurred. Defenses to the 'cause' element center on two possible options: nothing the defendant did (or did not do) caused the injury, and/or the claimant themself contributed to the cause of their own damages.

 

COVID cases confound this fundamental legal concept because, in many cases, there's no way to prove with certainty that any one location or exposure 'caused' the transmission of the virus. Yes, healthcare personnel are more likely to contract the virus because of their exposure to it through their occupation or workplace. However, science has determined that asymptomatic people are spreading the disease - people who show no evidence of being sick. So, while, yes, healthcare workers are more likely to contract the disease at their workplace, they also live in a community where the virus is active. These workers are also susceptible to contracting the virus through their interactions at home, while at their grocery store, or any place where they may come in contact with an asymptomatic person.

 

The virus's capacity to spread via non-symptomatic people makes it extremely difficult to assign 'cause' to one specific entity or location. This challenge to proving 'cause' poses new questions to all parties to a WC case:

 

Legislative Changes

As if the legal challenges aren't tricky enough, WC cases will also face challenges posed by the increased flood of local, regional, and national legislative efforts to stem the spread and contain the damages caused by the virus. Every state has been scrambling to manage their specific COVID crisis, with many passing laws and emergency regulations on a weekly (or sometimes daily) basis.

 

However, these short-term legislative fixes address only the crisis of the day. In many (if not most) cases, their potential long-term impacts have not been fully vetted, and those who act in accordance with the new rule may create additional challenges and liabilities in the future.

 

These issues and more will be the subjects of an increasing number of litigations as future lawsuits and WC claims are processed in the coming months and years.

 

 

MSA Litigations May Also Increase

Increasing numbers of COVID-related WC claims will almost certainly prompt a rise in MSA applications, as claimants seek as much coverage as possible for future services related to their COVID injuries. In these cases, it will be even more important to consider the interests of the Centers for Medicare and Medicaid Services (CMS) when crafting those MSA documents. As the Mandatory Secondary Payor, CMS is not authorized to spend Medicare resources on health conditions caused by or the responsibility of a third party. The 'COVID cause' concern will pose challenges in these cases, too, if there is an insufficient declaration of cause in the MSA application.

 

(On a side note, the COVID crisis may also trigger a rise in Social Security Disability Insurance (SSDI) claims, too. The number of those cases also rises in the aftermath of a societal crisis. These SSDI claims will also be plagued by the 'COVID cause' challenge insofar as science has yet to determine if the virus can cause permanent disabilities as well as as-yet-undiscovered injuries and illnesses.)

 

The COVID-19 virus has already caused countless job-related injuries and illnesses in businesses and industries across the country. It is on track to generate thousands more before healthcare and scientific resources can fully contain it. Even without the myriad of legal challenges it is engendering, the related WC claims it will generate will also trigger the demand by both injured parties and the CMS to develop comprehensive MSA applications to manage the costs of covering those injuries. As the country works through both the pandemic and its ensuing recession, the coronavirus of 2019-2020 will almost certainly restructure how America's workers' compensation and Medicare Set Aside sectors operate in the future.