What You Need to Know Now About Workers’ Compensation in COVID-19 Ohio

Workers' Compensation & OSHA
March 23, 2020
 

The Ohio Bureau of Workers’ Compensation (BWC) continues business operations providing service to employers and injured workers, but all BWC staff has transitioned to teleworking to minimize the spread of COVID-19. Likewise, the Ohio Industrial Commission (IC) will continue to adjudicate disputed issues referred by the BWC but has moved to all telephonic hearings until further notice with specific priority given to certain claim issues before the IC.

BWC Delays Premium Payment Deadline Until June 1, 2020

Among the most significant concerns for Ohio businesses during this time of hardship is whether the BWC will require insurance premium installments for the current policy year. On Saturday, Lt. Governor John Husted announced that the BWC will defer premium installment payments by Ohio employers due for March, April and May until June 1, 2020, at which time the matter will be reconsidered should conditions warrant. Therefore, BWC will not lapse coverage or assess penalties for amounts not paid by public and private employers during this period of time. Lt. Governor Husted relayed that this move would keep a total of approximately $200 million in the economy for this short term.

Is COVID-19 a Compensable Workers’ Compensation Claim Under Ohio Law?

It depends. Generally, infectious and communicable diseases like COVID-19 are not compensable claims as an “occupational disease” because people are exposed in a variety of ways, which are not greater or different in manner than the general public. While there is no way to stop an employee from filing a claim for COVID-19 as an occupational disease, the worker would have the burden of demonstrating that the specific duties in the position pose a “special hazard” or risk and that the employee actually contracted COVID-19 by exposure in the course of employment. Importantly, in its recent FAQs published on its website, the BWC did indicate that if you work in a job that poses a “special hazard” and contract COVID-19, the “BWC could allow the claim.”

The burden of obtaining a medical diagnosis establishing causation of contracting the disease as a “special hazard” to an employee is a steep climb for a filing worker, yet some issues may be difficult to navigate during a pandemic. Open questions in assessing a “special hazard” in the workplace could include whether healthcare workers and first responders are exceptions to the general rule that infectious diseases are not compensable, as well as claims by certain employees that their employers or work duties required them to come in contact with people sick with the virus. We will see how these issues develop over the weeks and months ahead and, as always, there is the potential that the Ohio General Assembly and BWC may directly address COVID-19 in the context of workers’ compensation.

Other Changes to BWC Claim and Policy Processing

  • Because of concerns of injured workers getting MEDCO-14s completed while some doctors’ offices are closed, BWC staff have been instructed to continue all current temporary total compensation payments to April 30, 2020.
  • Required job searches have been suspended until April 30, 2020, and therefore all current working wage loss/non-working wage loss and living maintenance payments will be continued through that date as well.
  • The BWC is cancelling all Independent Medical Examinations (IMEs) that had been scheduled for State Fund claims but is exploring the potential of alternative means of obtaining medical evidence, including “virtual” examinations. If an injured worker cancels an IME scheduled by the employer, his or her claim benefits will likely not be suspended in the interim.
  • All face-to-face audits for both State Fund and Self-Insured employers have been suspended. Paper and virtual audits will continue, and the BWC will issue temporary certificates to self-insured employers.

Industrial Commission to Continue Hearings by Telephone

  • The IC cancelled all hearings on March 16 and 17, but then started to conduct hearings by telephone starting on Wednesday, March 18. Importantly, the IC will only be conducting hearings on the following issues during this period of uncertainty with COVID-19: permanent total disability, temporary total disability or the termination of temporary total disability, wage loss, allowance and additional allowance. Expect hearings on other issues (i.e., treatment, permanent partial disability, etc.) to be postponed if already noticed for hearing and to be delayed in scheduling if recently referred to the IC.
  • Hearings will be scheduled two to an hour with six docket hours each day. Employers and their representatives need to file a Hearing Contact Document in each individual claim with the direct telephone contact number prior to the date of hearing. A Hearing Contact Document cannot contain information for multiple claims – just one per claim – otherwise it may constitute release of Confidential Personal Information.
  • Court reporters may still participate in telephone hearings and should attend the telephone hearing in the presence of the employer who requested the court reporter.
  • Interpreter services remain available but will only be telephonic. Interpreters will not be appearing in person.

Calfee invites you to visit our COVID-19 Resource Center containing First Alerts to help guide you through the challenges faced by individuals and organizations as a result of the novel coronavirus outbreak. We are committed to helping you meet the diverse and complex challenges and navigate the disruptions caused by this pandemic. Please check the COVID-19 Resource Center regularly for the latest updates, or subscribe to receive the most up-to-date Alerts sent directly to your email inbox.


For additional information on this topic, please contact your regular Calfee attorney or the author(s) listed below:

 
 
 
 
 
 
 
 
 

For more updates and alerts, visit the News section of Calfee.com.