Member Alert: COVID 19 Presumption and CWCI Webinar
As widely anticipated, Governor Newsom today signed an Executive Order (click here) creating a presumption of compensability for COVID-19 as it relates to certain California workers. CWCI now provides the following synopsis:
WHAT: The Executive Order creates a rebuttable presumption of compensability for COVID-19. The employer may produce “other evidence” that the disease was acquired outside of work – but unless controverted, the WCAB is bound to apply the presumption.
WHO: The presumption will apply to any employee who
- reported to work outside of the home AND
- such reporting to work was made at the direction of their employer AND
- the worker received either
- a positive COVID-19 test OR
- a diagnosis of COVID-19 by a physician (licensed by the California Medical Board), with the additional requirement for a subsequent positive test within 30 days in order for benefits to continue
- The test or physician’s diagnosis must be made within 14 days of the worker’s last day working outside the home AND
- the employee must have last worked at the place of employment on or after March 19, 2020.
WHEN: The timeframe for the claims administrator to determine compensability is reduced from 90 days to 30 days from the filing of a Claim Form. However, denials after this deadline are still permitted where based on newly discovered information, akin to the current rules under Lab. C. §5402(b).
TD Indemnity: Before entitlement to TD indemnity (or §4850 time) kicks in, injured workers must first exhaust all eligibility for state and federal sick leave specific to COVID-19; however, there is no waiting period applicable once entitlement to TD begins. Inasmuch as TD indemnity is designed to provide immediate benefits to cover a wage loss, the requirement to use up other benefits is likely to prove burdensome for the worker, especially as there is no immediately apparent mechanism to demonstrate that the other benefits have been exhausted. It may also prove unwieldy for the claims administrator, as it will require an accounting from the worker’s employer as to the total amount of accrued benefits prior to commencement of the TD or §4850 benefit.
MEDICAL CERTIFICATION: The Executive Order requires medical recertification of ongoing temporary disability every 15 days instead of the 45-day reporting requirement under 8 CCR 9785(f)(8). If the diagnosis was made prior to today’s Order, initial certification must be obtained within 15 days of the Order and must document the period of disability. In all instances, recertification must be obtained every 15 days for the first 45 days (the Order does not address continuing certifications beyond 45 days). In a particularly troublesome detail, the Order apparently does not limit the certification process to MPN providers. Instead, if the employee does not have “a designated workers’ compensation physician or group health plan,” the employee should be certified by a physician of the employee’s choosing. It is possible that the Claims Administrator will be able to place the employee into its MPN immediately, and thereby satisfy the “designated workers’ compensation physician” requirement.
MEDICAL: All medical benefits are subject to the presumption rules. However, both UR and IMR medical dispute resolution processes remain untouched. The Executive Order does not mention benefits such as temporary housing and living expenses — benefits which have been proposed by some of the bills pending in the State Legislature and which could still be enacted.
APPORTIONMENT: The Executive Order expressly states that presumption claims shall be subject to apportionment under Lab. C. §§ 4663 and 4664. So unlike most compensability presumptions contained in the Labor Code, the rules on apportionment of permanent disability for this presumption remain unaltered by the Executive Order.
DEATH BENEFITS: Unless the worker has dependents, no death benefits are payable. This provision is directly contrary to the rules governing the Death Without Dependents Unit under Lab. C. §4706.5 and apparently means that in the absence of dependents, the Claims Administrator owes no death benefit at all.
HOW LONG: The presumption rules will be effective retroactive to the Governor’s original March 19 stay-home order, and extend to 60 days after the issuance of the Order. Thus, the presumption would apply for DOI from March 19 through July 6, and persons with COVID-19 diagnosis prior to March 19 would not receive the benefit of the presumption.
The Institute is presenting a short “Ask The Experts” webinar on Thursday May 7, at 10 a.m. (Pacific time). The webinar will provide a unique opportunity for CWCI members to submit questions regarding the Executive Order to a panel of legal experts: Ellen Sims Langille (CWCI General Counsel) and David Skaggs (VP-Legal at Pacific Compensation, a CopperPoint Company). Space is limited, so please register asap. We hope you can join us! Click here to sign up, and log-in instructions will be emailed to you directly. If you have questions, please call CWCI at 510-251-9470. We hope you can join us!
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