As lawmakers debate issues surrounding the COVID-19 pandemic, including the role that workers’ compensation systems in California and elsewhere should play in responding to the virus and the potential impact of COVID-19 presumptions of compensability, the California Workers’ Compensation Institute (CWCI) has issued a white paper that looks at the historic role of workers’ compensation presumptions, the current and proposed COVID-19 presumptions and results of a survey detailing characteristics and outcomes of initial COVID-19 claims.
On May 6, Governor Newsom issued Executive Order N-62-20 creating a disputable presumption of compensability for COVID-19 as it relates to California workers directed by their employers to work outside the home. The order applies to work performed on or after March 19, 2020 and unless extended, will remain in place until July 5, 2020. Beyond that, a legislative approach has been proposed in SB 1159 (Hill, Daly) which would create a disputable COVID-19 presumption with an extended timeframe for first responders and “critical” workers, a group that has yet to be specifically defined, but that would include public or private sector employees working to combat the spread of the virus. The CWCI analysis compares the differences between the current and proposed presumptions, but notes that both shift the traditional burden of proof found in workers’ compensation by no longer requiring employees to prove the illness is work-related, instead requiring employers to accept compensability for a COVID-19 claim unless they can overwhelmingly prove it is not work-related. Although COVID-19 is new to workers’ compensation, the analysis also reviews existing precedents and policies regarding presumptions that policymakers should consider in evaluating the potential impacts of modifying the existing workers’ compensation legal architecture in regard to compensability and coverage.
The white paper also adds real-world perspective to advance the presumption debate by providing results of a survey of 28 insurer and self-insured CWCI members that encompassed 1,077 California workers’ compensation COVID-19 claims filed before April 30, a week before the governor’s Order granted the disputable presumption. Among key results, the survey found that 35% of the COVID-19 claims in the study sample were denied, but 7 out of 10 workers whose claims were denied tested negative for the virus, with the balance of the denials made after it was found that the employee had not been exposed at work, or for other reasons including the lack of a diagnosis, lack of symptoms, or that the employee had been working at home or refused to take a COVID-19 test. CWCI has released the white paper as a Report to the Industry, “Integrating COVID-19 Presumptions into the California Workers’ Compensation System.” The free report is available on the CWCI website, www.cwci.org/research.html.