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Gathering Information to Make Decisions on Compensability of COVID-19 Cases

By on June 25, 2020 in Compensability with 0 Comments

Employers, third party administrators and insurance carriers have for months been expending a great deal of time collecting information needed to make compensability decisions in respect to COVID-19 claims.  There are many important questions to be asked in making such decisions.  This blog focuses not so much on specific questions but on areas of inquiry.

PCP and Hospital Records

Primary care physician records as well as hospital records related to COVID-19 are often pivotal in making compensability decisions.  The PCP records often document when symptoms first appeared and what those symptoms were.  The physician almost always asks the patient questions about the source of the coronavirus, specifically whether that source is a family member, friend, work associate, or someone whom the employee was assisting or caring for.  Similarly, initial hospital admission records may assist in confirming the start of symptoms and source information.  

Source and Exposure Identification

Questions should focus on where and how the employee believes he or she contracted the virus. Sometimes the employee knows no specific source and other times the employee is quite certain of the source.  Whether the employee indicates the source is a colleague, patient, or customer, follow-up questions should address how much time the employee spent working with this individual or individuals and how close they physically were.  Was there daily contact and what was the physical work situation?  Does the employee know whether the source has tested positive for COVID-19? Were masks or protective devices being used?

Quarantine Issues

One area of inquiry should be whether any colleagues, close friends or family members have been quarantined within the past month.  If the answer is affirmative, follow-up questions need to focus on the reason for the quarantine and whether the employee is aware of positive or negative test results for the individual who was quarantined.  If the quarantined individual is a family member, it is important to ask about contact which the employee had with the family member before, during and after the period of quarantine.  The dates of the quarantine period should also be identified. 

Travel Issues

Each states has had somewhat different approaches to responding to the coronavirus, so it is important to ask questions about travel both within and outside the employee’s home state and places where the employee visited and stayed.  By the same token, inquiry should be made about any friends or relatives who have visited the employee in the last month and the health of the visitor.

Timeline Questions

The CDC advises that respiratory symptoms of COVID-19 usually appear an average of 5-6 days after exposure, but symptoms may appear in as few as 2 days or as long as 14 days after exposure.  This is important to keep in mind in the event that the employee has just recently tested positive for COVID-19 but is pointing to a source that the employee has not been around for four weeks.   It is often difficult for any of us to remember what we were doing a few weeks ago.  Calendars and emails are often helpful in refreshing recollection. 

                                                    Outside Activities

Questions need to be asked about recent gatherings, whether they be religious, social, or entertainment oriented. Family get-togethers have been documented in many articles as a source of spreading coronavirus.  It is worthwhile to ask the employee whether he or she has been shopping in the past month and worthwhile to confirm that the employee wore a mask or similar covering.

Symptoms and Medications

Questions about symptoms and medications are significant because one can have COVID-19 long before a positive test confirms it.  The questions should document when symptoms occurred, what they were, what medications were taken, and whether symptoms changed over time.  This information can often be checked against family doctor or hospital records.  For those who have had symptoms, it is helpful to pin down the nature and severity of the symptoms.  This information may take on added significance if a claim petition should later be filed in the Division with allegations of impairment of specific bodily organs.  Of course, as has been well documented, some people who are positive for COVID-19 have no symptoms at all.

                                                   COVID -19 Testing

It is necessary to ask about positive and negative COVID-19 test results and the dates of those tests. If a physician or hospital was involved in facilitating the testing, those records should be obtained.

Last Employment Date and Second Jobs

An employee who reports a COVID-19 claim should be asked when he or she last worked, whether the work was performed on site or remotely, and whether the individual has another job.  There are hundreds of thousands of employees in New Jersey who work part-time jobs.  An EMT may work part-time in that position but have another full-time position.  A nurse or technician may work part-time for two hospitals.  Decisions on compensability are obviously much more complicated when someone has two jobs since there may be potential exposure in one or both jobs or no exposure at all.  In multi-employment situations, it becomes critical to obtain a record of the days worked in each position.  That information should be compared with the timeline of symptoms and illness.

Summary

These are some of the key areas of inquiry that will facilitate decisions on compensability.  Employers, third party administrators and carriers should bear in mind that when if a decision is made to accept a COVID-19 claim, that does not mean that the allegations of the formal Claim Petition have necessarily been accepted.  For instance, if an employee has contracted work-related COVID-19 and files a claim petition alleging permanent pulmonary impairment and psychiatric impairment, the pulmonary and psychiatric aspects of the claim petition may still be denied.   Just as in any workers’ compensation claim, there must be a showing of objective evidence of causally-related impairment to support an award in workers’ compensation.

The author has a useful list of questions for clients and readers to help make COVID-19 determinations.  Readers are welcome to send an email to jgeaney@capehart.com for a request for this list.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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