Many claim petitions have been filed in the Division of Workers’ Compensation seeking awards of permanent partial and total disability as well as dependency benefits arising from exposure to COVID-19.  The high number of COVID claim petitions reflects the fact that well over 1.2 million cases have been confirmed as COVID positive in New Jersey, and more than 28,000 deaths have been traced to COVID exposures.  Given the high number of claim petitions already filed and the expectation that thousands of more petitions will likely be filed, this blog focuses on some of the important considerations in defending COVID-19 claim petitions.

Is The Petitioner Entitled To A Legal Presumption Of Compensability?

That is the first consideration that practitioners must focus on when receiving a COVID claim petition.  The Essential Employees bill was signed into law on September 14, 2020 retroactive to March 9, 2020.  The law creates a presumption of compensability for certain categories of employees:

1. Public safety workers or first responders, including any fire, police, or other emergency providers;
2. Those involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes.
3. Those who perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel and supplies for conducting essential business and work at home, or;
4. Anyone deemed an essential employee by the public authority declaring the state of emergency.

What does the presumption mean? Does it mean that the employer automatically loses?  No, it means that the burden of proof does not rest on the Essential Employee to prove that he or she contracted COVID from work.  It is presumed to be work related.  The burden shifts to the employer to disprove the case.  The statute provides that the presumption is “rebuttable.” An employer could rebut the presumption, for example, if the Judge of Compensation were to find that the employee more likely contracted the virus from his or her spouse or children or from travel to another state or country rather than from work.

Has The COVID Presumption Ended?

Most defense practitioners think the answer is affirmative on this question.  The reason is that Governor Murphy declared the end of the public health emergency on July 3, 2021.  The rationale for the Essential Employee Law rested on the public health emergency and refers to it in the law itself.   While the Governor never specifically said on July 3, 2021 that the COVID presumption in workers’ compensation no longer prevailed, many practitioners reason that the presumption must have ended because the law was in response to the existence of a public health emergency.

If defense counsel are correct that the presumption ended on July 3, 2021, what are the implications for workers’ compensation claim petitions?  Right now the end of the presumption does not mean all that much because many claim COVID petitions are still getting filed.  Without a presumption, the claimant has to prove more likely than not that he or she contracted the virus at work.  That is just like all other occupational disease claims in New Jersey where the burden rests on the petitioner to prove his or her case on compensability.  But over the long term, as COVID becomes more community based and more prevalent in our population, it will be harder for petitioners to prove exposure at work.  Some scientists predict that eventually most Americans will contract some version of COVID-19, and it will be more like the flu – for which employers almost never get claim petitions.

Why Are Special COVID Occupational Interrogatories So Important In COVID-19 Claim Petitions?

In all occupational claims, such as COVID claim petitions, both parties can propound interrogatories on the other side to answer.  Unfortunately, New Jersey uses form interrogatories in occupational disease claims. These are mostly outdated and focus heavily on exposure to asbestos or industrial pollutants. There are no questions about family exposure, travel exposure, or community exposure in the approved form interrogatories. There are no questions about quarantine or mask use.   Counsel on both sides should prepare relevant interrogatories customized to address COVID claim petitions.  Otherwise answers to the form interrogatories will come back with nothing but objections such as “this interrogatory is irrelevant.”  If there is an objection to the use of special interrogatories, then counsel should file a motion for permission to serve special interrogatories with the Judge of Compensation. 

From the defense side, interrogatories must address exposure potential at home with relatives or friends, out-of-state vacations or travel, holiday gatherings, dates of positive testing, quarantine periods, and current symptoms and treatment.  The timing of COVID diagnosis is always important to focus on.  A little less than one year ago, just after Thanksgiving 2020, there was a massive surge in positive COVID testing in every state. The reason was that people were gathering in homes without necessarily taking precautions that are generally required in their workplaces.  

In cases where there is no presumption of compensability, interrogatories are still very important. Where this is no presumption, the burden rests on the employee to prove that he or she more likely than not contracted COVID-19 at work.  The proofs may focus on specific individuals who tested positive and who were in close contact with the petitioner. The employer will have to contact such individuals or check personnel information when such claims are made.  All the same investigation and discovery is done by defense in a non-presumption case as in a presumption case.

Who Has The Burden Of Proof On Permanent Partial Disability?

The claimant always has the burden of proof on impairment and disability.  The Essential Employee Law did not change that.  One does not automatically get an award of permanent partial disability for having work-related COVID.  There must also be proof of an impairment which substantially limits one’s activities of daily living or materially impacts one’s working ability.  COVID cases are being settled in the Division, but this practitioner is not aware of any full trials yet on COVID claims. 

Is There Any Other Law That May Provide A Presumption Relevant to COVID-19 Cases?

The Thomas P. Canzanella Law passed in 2019 states that public safety officers have a presumption of compensability in a variety of circumstances, including exposure to communicable diseases. The statute references exposures during epidemics as well as airborne exposures.  This presumption is also rebuttable. 

What Kinds Of Allegations Are Contained In COVID-19 Claim Petitions?

This practitioner has scores of COVID claim petitions, and the variety of physical and psychological injuries is noteworthy.  Some of the claim petitions involve only a very short absences from work with no treatment at all from any medical provider.  Those are the minor claim petitions.  Others involve patients who continue to have health problems months after recovering from the initial bout of COVID, namely “long haulers.”  Those can be high exposure claims.  In addition, most large defense firms are defending COVID dependency cases in the Division. 

Although it is difficult to generalize about the types of allegations, the most common allegation appears to be respiratory because the virus often attacks the lungs first.  There are many COVID claim petitions where the claimant was diagnosed with lung damage or pneumonia.  Another common allegation is anosmia and ageusia (loss of smell and taste).  There are allegations of cardiac injuries, visual disturbance, as well as neurological injuries, such as severe migraines and brain fog. There are also claims for causally related anxiety and depression.  Clearly every case is unique, which underscores the need to do detailed investigation and discovery.

What Sort Of Medical Experts Are Being Retained By Respondents In COVID Claim Petitions?

If you think about most workers’ compensation claims, orthopedic experts are mostly used to assess permanency.  That is not the case with COVID claim petitions.  The experts most suited to assess causally related permanency in COVID cases, in the opinion of this practitioner, are physicians with a background in internal medicine, occupational medicine or physiatry.  There are also cases where both sides need to retain an ENT, ophthalmologist, psychiatrist or psychologist.  This is a major challenge in COVID claims for both sides precisely because both sides are used to retaining orthopedic doctors who are familiar with workers’ compensation and who understand the legal standards.  Most of the COVID claim petitions in the Division have not gotten to the permanency stage, and it will be interesting to see which experts emerge in this area.

Why Is Past Medical Discovery So Paramount In COVID Claim Petitions?

More is known about COVID at the present time than was known in March 2020, but much more remains to be discovered.  No one really knows what the long term effects of COVID are.  Practitioners often find in defending COVID claim petitions that someone with prior medical issues often files a claim petition for a worsening of that preexisting condition.  The COVID virus seems to frequently attack preexisting medical conditions.  Employers, adjusters and practitioners have to obtain PCP records to assess the prior medical diagnosis.  PCP records may have very important information about prior conditions and also about initial conversations regarding the source of the COVID exposure. 

Depending on the allegations in the particular case, it may be necessary to obtain prior allergy records, prior records of treatment for diabetes, prior treatment with pain doctors for migraines, prior psychological treatment, prior cardiology records, and prior ophthalmological records among others.  This information may be directly relevant to causation.  Is the worker being treated now for a long standing condition?  Is it a prior condition that has been worsened by COVID?  In the latter example, the employer may be entitled to a credit at the time of the permanency award.  In short, medical discovery remains crucial to explore in formal and in informal discovery in order to properly defend COVID claim petitions. Collaboration among carriers, employers, adjusters, and nurses will be needed to identify appropriate experts to perform permanency examinations around the state.

The post Practical Advice In Defending COVID-19 Claim Petitions appeared first on NJ Workers' Comp Blog.

Every defense lawyer knows that success in workers’ compensation court is the ultimate team sport.  There are many key participants:  employers, supervisors, adjusters, counsel, account managers, brokers, experts, IME doctors, physicians, nurse case managers and vendors such as investigators.  All play important roles but more often than not, the adjuster is the quarterback.   It has been this practitioner’s experience that the role of the adjuster is absolutely vital to the outcome of a workers’ compensation case. There are many dozens of skills needed to be a successful adjuster.  This blog focuses on only eight skills which successful adjusters all have in common.

• Understanding That Not Everything That Happens At Work Is Compensable.

Good adjusters have a sound understanding of their state workers’ compensation laws. They know that claims must arise out of and in the course of employment.  They will deny a case, for example, where an employee is just walking along a corridor at work and feels knee pain but does not fall or strike anything, or an employee puts on a coat to leave for home and feels a tear in the shoulder, or the employee starts jumping rope during a break on the premises, falls and fractures an arm. These are examples of incidents that happen at work but do not arise from work.  Good adjusters immediately flag the causation issue and focus the attention of their counsel on potential defenses. 

• Mastering A Checklist Of Important Issues In Every Case

Whether an adjuster has a written or a mental checklist of issues, good adjusters have many important tasks to complete with new files:   A) checking on prior claims; B) ordering an ISO; C) Considering whether there is jurisdiction in the state; D) Determining the accurate wage and rate; E) Investigating whether there is joint employment; F) Discovering whether there is subrogation potential and reserving lien rights; G) Evaluating whether to retain a nurse case manager; H) Deciding whether and when to put excess carriers on notice;  I) Assessing whether there is Second Injury Fund potential; J) Focusing on potential Medicare and Medicaid liens;  K) Properly reserving the file, and L) Taking statements from the injured worker and witnesses.   These are just some of the many analytical issues that adjusters focus on every day and all day long.  Defense counsel and clients in every state can attest to how invaluable it is to receive a well prepared and comprehensive file.  It speeds up the life of the file and puts the case on the right path.

• Knowing When To Do Surveillance Or Social Media Searches

A talented adjuster has an intuitive sense of when to do surveillance.  Many times defense counsel will receive a file pre-packaged for success.  For example, in one case our office received a file from an adjuster with surveillance videos showing a man working a physical job over a period of days while out of work and receiving temporary disability benefits for an injury.  When I asked the adjuster what led her to obtain surveillance, she said, “The doctor said his injury would require him to remain home and rest.  I called several days in a row, and he never answered his phone.  So I assigned surveillance right away and found him working another job.”  The case was dismissed for fraud.  

There are various points in the case when adjusters will consider surveillance and social media investigation.  The adjusters know the case better than anyone, having read all the treating notes, and often having spoken with the injured worker before counsel is retained. 

• Reading All The Medical Records And Physical Therapy Notes

Good adjusters read everything of a medical nature, including PT notes.  In fact, they will often say that the most helpful records are the PT notes because physical therapists ask a lot of questions that doctors often do not ask, including recent recreational or home activities.  In one of our firm’s cases an adjuster pored over dozens of pages of PT notes involving a worker who was having protracted problems with his knee long after surgery.  The doctor was puzzled by the slow recovery.  The adjuster sent us PT records, called our office and said, “See page 17, first paragraph.  The petitioner was hiking in New Hampshire six weeks ago, jumped from a height, reinjured his knee and went to the ER.”  That brief comment in the PT notes observed by the adjuster won the case.

• Focusing On Subtle Changes In The Mechanism Of Injury

Every good adjuster pays very close attention to changes in how the injured worker says he or she got injured, and then checks for any significant variation in the mechanism of injury.  It may be that the worker initially says he or she slipped but did not fall or strike anything, but when seen by the treating orthopedic doctor sometime later, the history suddenly changes to falling out of a truck and landing hard on one’s spine.   Adjusters live their cases and seldom miss material changes in the history of the accident.  They spot the red flags that then become the basis for defense counsel to contest the claim petition.  

• Knowing When To Settle And When To Try The Case

As Kenny Rogers so famously said,  “You’ve got to know when to hold ‘em and know when to fold ‘em.”  The decision when to settle and when to go to trial is seldom a simple one. There are often many complicated factors having to do with the proofs in the case and the chances of success at trial or on appeal.  Good adjusters are in constant communication with their clients throughout the case, and collaboration is critical on this issue.  Ultimately the carrier or the client makes the final decision on whether to settle or to go to trial, but defense counsel and the adjuster must be on the same page.

• Recommending Highly Credentialed Treating And Evaluating Doctors

Sometimes adjusters make recommendations on the appropriate treating and evaluating doctors, and sometimes nurses or defense counsel make recommendations, or all of the above.  Experienced adjusters know the reputation for excellence of many physicians and they also know which physicians understand the workers’ compensation system.  The physician must not only have great credentials but he or she must understand what terms like “maximal medical improvement” or “aggravation” mean in the context of workers’ compensation.   Adjusters also know which doctors take the time to obtain a detailed past medical history and which doctors ask about other potential causes for the impairment at issue.   

• Quarterbacking The Case

One of the most significant skills of a good adjuster is the ability to keep all stakeholders informed, move the file from point A to point B and keep the file moving toward closure.  Skilled adjusters know the importance of communication and keeping clients, brokers, counsel, nurses and all those involved in the case well informed.  No matter how involved or complex the file is, the skilled adjuster strives for timely communication.  It is certainly true that the best adjusters are proactive.  They anticipate issues and they make suggestions throughout the life of the case.  Success in court depends heavily on timely and frequent communication.

The job of a workers’ compensation adjuster can be challenging, sometimes stressful, and is always impactful.  In this practitioner’s view, adjusters are the lifeblood of every insurance company or third party administrator.  There are probably dozens of more skills that make a huge difference on the outcome of a case, far more than the eight mentioned briefly above.  For example, every adjuster must  communicate effectively with injured workers and their attorneys, document their files and keep on diary.   Those skills alone could be the subject of an interesting blog.

From a defense lawyer’s standpoint, the importance of having an talented adjuster on a file can never be overstated. Time and again it is the adjuster’s good work that allows defense counsel to reach a successful outcome in workers’ compensation court.

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