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Presumption trend changing comp industry: Panelists

covid workers

The trend of workers compensation presumptions could be a turning point for the industry, according to presenters at a Tuesday session during the Risk & Insurance Management Society Inc.’s 2021 conference.

Dozens of states have in place presumptions for certain workers — mostly first responders — who suffer from various cancers, heart disease or post-traumatic stress disorder. And now COVID-19 is compensable in some cases, with employers on the hook to cover infections that have been presumably contracted at the workplace.

Sixteen states currently have such COVID-19 presumptions in place and several more are considering them, retroactive to the start of the pandemic in March 2020.

Presumptions present challenges for employers in part because “COVID-19 is something you can be exposed to anywhere,” said presenter Max Koonce, chief claims officer for third-party administrator Sedgwick Claims Management Services Inc.

“The risks of COVID-19 are simply associated with the risks of daily living,” he said. “If you are at an employer for eight hours a day you have sixteen other hours a day that you are out there in the environment when you can be exposed to it just carrying on with your life.” 

He spoke briefly about similar challenges regarding cancer presumptions and the inherent risk that about one-third of adults will get cancer in their lifetime.

Such presumptions are problematic in that they are a “broad brush” for compensability, said Joan Vincenz, managing director of operations risk for United Airlines Inc., which has implemented COVID-19 safety precautions for workers as the Centers for Disease Control and Prevention introduced them.

“As every recommendation has rolled out we implemented it,” she said.

Most of the COVID-19 presumptions are rebuttable, meaning if an employer can prove the worker was infected elsewhere it can deny the claim. Under some state laws if an employer is taking all safety precautions the claim is rebuttable, Ms. Vincenz said, adding that this “intent” – ensuring employers take safety precautions seriously — is understandable. 

Ms. Vincenz said it’s the things employers can’t control that make her “uncomfortable with the presumptions.” She noted that living environments or off-duty activities can expose someone to COVID-19 and that “sometimes it’s safer” for an employee to be at work because of the safety measures in place.

“We are doing everything we can. … We can’t control the home environment. That’s where I don’t think presumptions are meeting the intent,” she said. “Similar to flu, it’s hard to tell where you got it.”

Asked by Mr. Koonce whether trend toward presumptions is “changing the dynamic with workers compensation?” Ms. Vincenz said, “I think it could.”

“It is always dangerous to use a broad brush; it is all about the details” of an injury, she said. “We need to be ready to investigate each (claim) and make sure that you are deciding on the merits. … That’s what I think presumptions are in danger of taking away.”

More insurance and workers compensation news on the coronavirus crisis here