By Charlene Stewart Barnaba and Anthony M. Napoli.
During the COVID-19 Outbreak, many of us may be directly affected by the coronavirus, experiencing financial hardships, working remotely and practicing social distancing. This includes claimants seeking workers’ compensation benefits and attorneys as well as judges and staff. However, this presents new challenges to keep everyone safe and healthy while still conducting business before the Board. In PMT’s continuing efforts to keep you informed, below are some of the recent updates in New York, Pennsylvania and New Jersey which we feel are important for you to know.
Please use these links to view how it’s affected your state: New York, Pennsylvania & New Jersey
New York
May Updates to Workers’ Compensation Rules and Procedures
Below are some highlights of the updated NYS Workers’ Compensation Board emergency amendments, adopted in April 2020. The Board’s specific Response can be found at its website:
http://www.wcb.ny.gov/content/main/TheBoard/WCBcovidresponse4-20.pdf
- In situations where payers are not sure if a claim is compensable, they are encouraged by the Board to consider issuing payment without initially accepting liability, rather than disputing the claim.
- Telemedicine and telephonic visits in some circumstances for social distancing purposes are permitted.
- Deadlines have been extended for healthcare providers to obtain authorizations for certain medications.
- New nature and cause of injury codes are now available in response to the pandemic and the Injury Description Tables have been updated to reflect this specific coding.
- The use of email, rather than fax, should be utilized for the efficient transference of communication and information.
- Injured workers need not demonstrate attachment to the labor market to continue receiving partial disability payments during this emergency period. Those cases will be adjourned pending the ability to demonstrate attachment. This also applies to cases ready for permanency classification.
- Carriers are expected to voluntarily comply with Executive Order 202.13, to cease canceling, non-renewing and conditionally renewing policies issued to an individual or small business (or, in the case of a group policy, cease insuring certificate holders that are individuals or small businesses). The 60-day moratorium took effect March 30, 2020
The situation is continually evolving. As it does, it is more important than ever to check back for all updates to the Board’s Response to the Outbreak.
Pennsylvania
May Updates to Workers’ Compensation Rules and Procedures
Claim professionals are confronted with COVID-19 claims among healthcare providers, first responders, essential workers, and those on the front line of protecting and serving the Commonwealth. Thus far the claims have been generally accepted for these categories of employees. When the Commonwealth reopens for business, people who have been sheltering in place for months will return to their places of employment. We can only speculate at this point whether those claims will be or should be accepted as compensable given the community spread of the coronavirus. Each will be analyzed on a case-by-case basis. It is arguable whether COVID-19 claims will be filed under Section 301(c)(1) of the Pa. Workers Compensation Act, the “injury” section, or the occupational disease Section 301(c)(2) of the Act with the rebuttable presumption section 108, in particular 108(n) “catch-all” provision. The determination of what classifications of workers might be entitled to a presumption is an evolving and complex issue (i.e., will this extend beyond the traditional first responders to potential industries like meat packing, transit, or grocery stores).
The Pennsylvania Legislature solved these questions for those professions entitled to Heart and Lung Benefits, renamed in 2016 to Enforcement Disability Benefits. On April 29, 2020, Governor Wolf signed into law Act 17 (formerly House Bill 1969), providing COVID-19 benefits to enforcement officers which include police officers, correctional officers, firefighters, the National Guard, and other employees. These employees will receive medical benefits and their full pay up to sixty days should they contract COVID-19 because of their employment.
More immediately, the effects of COVID-19 on the workers’ compensation system may arise in the context of claimants with existing injuries who are asking for reinstatement of temporary total disability benefits where they had been back to work at light duty or even full duty but their job was eliminated due to the COVID-19 emergency situation.
Procedurally, there are no new updates to report since our last reporting. Telephonic and virtual hearings appear sufficient. However, judges and practitioners have expressed a disadvantage in assessing credibility of a party when there is not face-to-face interaction.
New Jersey
May Updates to Workers’ Compensation Rules and Procedures
The Division has not issued any specific directives on the handling or compensability of COVID-19 cases at this point. However, note that there has been proffered new legislation per a proposed Bill S2380 to create a rebuttable presumption that all COVID-19 infections contracted by essential employees during the New Jersey State of Emergency are work related. The proposed draft of the bill may be read to define essential employees to include not only the traditional considerations of public safety and healthcare workers, but also any employee whose duties are considered essential to the public health, safety, and welfare or if the employee is considered to be essential in support of gubernatorial or federally declared statewide emergency response and recovery operations.
The presumption may only be rebutted by clear and convincing evidence by the respondent that the employee was not exposed to the disease at work. This is only a proposed Bill and not enacted law. Clearly, this would be devastating to certain industries (any business still operating during the COVID-19 emergency could be considered essential) and the respondent would be in a nearly impossible situation to prove that the employee was exposed elsewhere and not at work. Currently, guidance for compensability of COVID-19 exposure claims would look to the 2019 Thomas P. Canzanella Twenty First Century First Responders Act, 34:15-31.2 – 32.9. The genesis of the Act arose in the context of 9/11 claims. In short summary, the Act provided a rebuttable presumption of compensability for certain occupational illness to specific public safety workers and to also include certain medical professionals. The Act did not address “essential workers” but obviously that had yet to become a term of art in the context of COVID-19 shutdowns. If the employee’s job classification is not one which is entitled to a presumption, the employee would have the traditional and difficult burden of proof of proving his occupational disease claim.
Hearings continue to be held remotely at least through May 26, 2020 per the Division. On April 27, 2020, additional Workers’ Compensation Judges have been assigned to handle remote hearings from the various vicinages. The Division has been extending out the ban to the public on about a two-week basis. Given that Governor Murphy extended the Public Health Emergency for another thirty days (until June 5, 2020) and the State of Emergency remains in effect indefinitely, it is expected that the in-person hearing closure will extend beyond May 26, 2020. Hearings are being conducted remotely, with each Workers’ Compensation Judge having his or her individual procedures. Generally, it is the responsibility of Respondent’s counsel to provide the “markings” of the list in advance. Settlements and conferences are more likely to go forward than witness testimony (far less a frequent occurrence than in Pennsylvania) at this point. While there may have been some slowdown of cases in terms of disruption of medical treatment and availability of IMEs, this is a slowdown, but not a total standstill. IMEs are not banned, and we do see authorized treatment including authorized specialist’s office visits proceeding now. The ban on elective surgeries by Governor Murphy’s Executive Order 109 remains in effect, so that may put some matters on hold in the case of pending authorized surgeries.
Should you have any questions, please call our office at (914) 703-6300 or contact:
Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com