Coronavirus and Washington workers’ compensation

March 19, 2020

Shawna G. Fruin

A few weeks ago, we shared our initial thoughts on coronavirus (“COVID-19”) and workers’ compensation. Since then, the World Health Organization classified COVID-19 as a pandemic, and the Department of Labor and Industries (“Department”) has offered additional guidance on how to handle COVID-19 claims. The attorneys at Reinisch Wilson Weier continue to closely monitor this developing issue and how it will affect our industry. Although each case is different, we wanted to provide some general guidance on the intersection of COVID-19 and Washington workers’ compensation (as of this publication date.)

Compensability of COVID-19-related workers’ compensation claims

The Department recently published guidelines about compensability of COVID-19 claims (link here). There are special rules for first responders and health care providers, offering greater coverage. Otherwise, compensability of COVID-19-related claims will be analyzed on a case-by-case basis, but according to the Department, “when the contraction of COVID-19 is incidental to the workplace or common to all employment (such as an office worker who contracts the condition from a fellow employee), a claim for exposure to and contraction of the disease will be denied.”

Penalties for COVID-19-related delays

Our attorneys are continuing to work with the Department to find out how it will address possible COVID-19-related delays in replies to a worker’s requests for a claim file update (for example, if an employer is unable to provide a full claim file update within the timeframes of WAC 296-15-420 because its employees are quarantined, staying home due to school closures, etc.). As of March 18, 2020, the Department has indicated that it will consider COVID-19 business impediments in assessing whether to impose a penalty, and will likely extend claim file update deadlines by an additional five days.

Loss of earning power and time loss

Due to COVID-19, many businesses are temporarily closing or having a limited workforce. A few common ways that may affect workers’ compensation benefits are as follows:

Light duty:

If an injured worker has modified duty restrictions, is working a temporary modified-duty position, the employer continues to have available light duty work and the worker can continue performing the light duty work, the employer will likely need to continue providing the light duty job and paying loss of earning power as appropriate. This is true even if the job of injury is not available, although the lack of job of injury wages may affect the loss of earning power formula.

If an injured worker has modified duty restrictions, is working a temporary modified duty position, and the employer cannot continue to provide the light duty job due to COVID-19, the employer will likely need to start time loss compensation. If the light duty job comes to an end before the attending provider approves the job of injury, then time loss must be reinstated.^[1]

If an injured worker has claim-related modified duty restrictions, and the employer continues to have available light duty work, but the worker’s doctor restricts the worker due to COVID-19 or the worker self-quarantines due to COVID-19, then employers should address loss of earning power and time loss compensation obligations on a case-by-case basis. If the light duty job impedes a worker’s recovery and the attending provider decides the worker should not continue the job, then full time loss should be resumed.^[2] The Department’s internal policy 5.15 indicates that if the worker’s attending medical provider approves a written light duty or transitional job description offered to the worker and the worker chooses not to accept the work, the worker is not entitled to loss of earning power or time-loss compensation. Situations where a worker leaves light duty due to COVID-19 may not perfectly fit into that statute or policy, and should be decided based on the facts specific to that case.

Time loss:

If a worker is excused from work due to an industrial injury or occupational disease, and is receiving time loss compensation, most likely time loss compensation will continue, even if the job of injury is no longer available. RCW 51.32.090 directs the payment of time loss compensation when a worker is temporarily and totally disabled, and does not provide exception for instances when the job of injury is unavailable.

Independent medical examinations

The Department held a March 18, 2020 webinar regarding ongoing independent medical examinations in the context of COVID-19. The Department acknowledged that independent medical examiners currently have less availability, and that workers may be unwilling or unable to attend an independent medical examination due to COVID-19 concerns, quarantine, etc. The Department indicated that independent medical examinations are essential services, given workers’ compensation statutory deadlines (for example, there are statutory deadlines for reopening applications and an independent medical examination may be needed to meet those deadlines), and therefore the Department is not cancelling the independent medical examination program at this time. The Department is considering independent medical examinations via telemedicine, especially psychiatric examinations. If you need an independent medical examination on your claim during a period of COVID-19 restrictions, you should expect potential delays; consider whether telemedicine is an option or consider a records review if you cannot obtain an in-person examination.

Vocational services

With school closures across Washington state due to COVID-19, it is possible that workers who are participating in retraining will not be able to complete their programs within the two years allotted under RCW 51.32.096. When a vocational plan interruption is beyond a worker’s control, employers must recommence plan development, and if necessary, the new retraining plan may include credit for time and costs expended prior to the interruption.^[3] A vocational plan interruption is considered outside the control of the worker when it is due to the closure of the accredited institution, when it is due to a death in the worker’s immediate family, or when documented changes in the worker’s accepted medical conditions prevent further participation in the vocational plan.

Reopening applications

If the Department does not issue an order denying a reopening application within 90 days of receipt of the application, or issue a 60-day extension for good cause, the reopening application will be deemed granted.^[4] To date, the Department has not yet issued any determination that would loosen the strict “deemed granted” deadlines for reopening applications in light of COVID-19. If you receive a reopening application, be aware of the “deemed granted” deadlines and that obtaining an independent medical examination to address reopening may take longer than usual. If needed, an independent medical examiner could perform a forensic review to provide input on a reopening application.

Conclusion

Although the COVID-19 issues are unprecedented, the attorneys and staff at Reinisch Wilson Weier continue to be impressed by the hard work and dedication of the workers’ compensation community. We want to specifically thank the doctors and other medical professionals who are working tirelessly and putting themselves at risk during this challenging time. We hope that this blog will help navigate you through some of the workers’ compensation issues coming up in the near future. However, we acknowledge that every case is different and unique, so please do not hesitate to contact a Reinisch Wilson Weier attorney to discuss claim-specific issues.

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