Workers' Compensation: Innovation is Necessary to Meet the Challenge of COVID in 2022

COVID is the most extensive occupational exposure event in the history of the United States. Workplaces are now primed for a massive wave of compensation claims due to the Omicron variant. A recent study provides a potential opportunity for employers and insurance companies to reduce their risk exposure through early sequencing and treatment proactively.

Background

The workers’ compensation system faces an enormous challenge in 2022 as the novel consequences of the most recent surge of SARS-CoV-2 infection engulf the nation. The issues will include: evaluating temporary disability benefits, delivering medical treatment, and estimating the nature and extent of disability. The duration of this extraordinary event will be further complicated by the lifetime consequences of “Long COVID.”

Occupational Exposure as a Claim

Occupational exposure claims were not initially included in the model workers’ compensation of the early 1900s. These claims were added during the mid-twentieth century as employers intended to cap their economic liability from a flood of silica claims—an ingenious theory that back-fired. Eventually, occupational claims morphed into product liability actions, and an epidemic of liability civil actions resulted in the longest tort in litigation history.

The Tail Wagging The Dog-Long COVID

The causes of "Long COVID" [Post -Acute Sequelae of COVID, (PASC)] flow from three origins. One is from organ damage generated by respiratory scarring, fibrosis forming in the lungs. It has also been described as flowing from the inflammation of the heart muscle, myocarditis. PASC has been attributed to acute inflammations of the blood vessels or brain, which causes a loss of sense of smell and other symptomatology such as a fast heart rate, severe fatigue, breathing problems, and countless other issues.

Another biological cause of PASC has been attributed to the residuals of the viral symptoms. Those symptoms appear not to dissipate.

PASC has also been related to the consequences of brain damage, including a loss of smell, “Brain Fog,” and an increased heart rate.

Who is at Risk for “Long COVID” [PASC]?

Before the Omicron variant surge in late 2021, it was estimated that over 2 million people in the United States suffered from PASC. That number is likely to increase dramatically as the Omicron variant proliferates.

Traditional Proactive Mitigation of COVID Risk

Complete vaccination has been reported to cut the risk by 50%. Multiple lawyers of pandemic preparedness precautions in the workplace, including making, social distancing, and ventilation, will reduce the overall risk of severe disease and hospitalization.

New Innovative Medical Testing to Mitigate COVID

The delivery of medical treatments for emerging Omicron variant are in short supply and, like vaccines, may result in adverse consequences, further stressing workers’ compensation programs. Guidance from the government concerning isolation and quarantine testing is inconsistent. Experts dispute this approach.

Medication is in short supply. “…the U.S. Food and Drug Administration issued an emergency use authorization (EUA) for Merck’s molnupiravir for the treatment of mild-to-moderate coronavirus disease (COVID-19) in adults with positive results of direct SARS-CoV-2 viral testing, and who are at high risk for progression to severe COVID-19, including hospitalization or death, and for whom alternative COVID-19 treatment options authorized by the FDA are not accessible or clinically appropriate.”

Compounding the complex and rapidly changing treatment protocols requires identifying the infectious disease quickly to select the appropriate treatment modality. There is currently a national shortage of rapid tests, long lines at state-established testing sites, and a soaring rate of hospitalizations.

New sequencing testing provides hope to speed identification and treatment, and those should be rapidly deployed in the workers’ compensation medical delivery system over the next few weeks. Employers and insurance carriers should actively encourage adopting and implementing new innovative testing and treatment avenues to limit their risk exposure. A mere scorched-earth policy to delay and deny occupational disease claims will ultimately result in catastrophic risk exposure and the prosecution of mass occupational disease claims.

“Gatekeeper Responsibility”

Employers and insurance companies should admit claims and prevent contagion rather than delay and deny claims. Failure to act with haste to outrun the spread of the virus will result in enormous adverse consequences.

In evaluated denied claims, compensation hearing officials need to be their gatekeepers of credible evidence to adjudicate COVID claims. Since judicial artificial intelligence programs through machine learning are unavailable, hearing officers must thoroughly study the scientific evidence presented.

Confusing and conflicting evaluation guidelines exist. Examples are those issued by the US Centers for Disease Control and Prevention (CDC). The CDC has recently shortened “the recommended time for isolation for the public. People with COVID-19 should isolate for five days and if they are asymptomatic or their symptoms are resolving (without fever for 24 hours), follow that by five days of wearing a mask when around others to minimize the risk of infecting people they encounter.” Scientists have been divided on their approval of this recommendation, and further changes are anticipated.

Dueling “experts” will leave workers’ compensation hearing officials with conflicting evidence to establish adjudicate claims. In re Accutane Litigation, 234 N.J. 340, 191 A.3d 560, Prod. Liab. Rep. (CCH) P 20407 (2018). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Where does the universe of disability terminate?

A recent study has attributed COVID-19 as a cause for multi-organ dysfunction and acute infections that produce prolonged symptoms. This condition is commonly referred to as “long Covid,” and medically has been given the term Post-Acute Sequelae of SARS-CoV-2 [PASC].

The National Institute of Health [NIH] reports that the burden of COVID infection was not confined only to the respiratory tract. It was also distributed and replicated with cell-type-specificity across the entire human body, including the brain. This distribution throughout the body followed up to 230 days from the symptoms of the virus’s onset.

The study will impact the evaluation and assessment of the nature and extent of disability in workers' compensation claims. Not only will it extend the period of temporary disability far beyond the quarantine or isolation period, but it will also support the need for a comprehensive course of medical treatment until the medical consequences of the disease are resolved, if ever.

What was once thought to be a short duration of time from onset until recovery COVID, like a common cold, now supports the payment of permanent disability, that may be partial or total, and requires medical treatment, including pharmaceuticals, for the entire course of the residuals of the disease and mortality?

The New Territory of “COVID Disability”

“The purpose of workers' compensation benefits is to alleviate the consequences of disability by providing economic benefit to the injured worker. The Workers' Compensation Act intends to be generous to the injured worker who has lost part of his body's function. However, a petitioner has the burden of going forward with the proof to demonstrate that they are entitled to receive disability as a result of injury flowing from the accident/occupational exposure.” Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 12.9 (Thomson-Reuters 2021).

The ability of SARS-CoV2 to infect multiple organs outside of the respiratory track places uncertainty as to the extent of financial costs for medical treatment and temporary and permanent disability claims. The widespread infection caused by the virus and its persistence to continue for a long duration may require extended periods of disability payments as well as ongoing medical monitoring.

Conclusion

This year will present unique challenges to the workers’ compensation benefit delivery system as it attempts to meet the demands of widespread infectious disease in the workplace. Multiple factors will stress the system beyond what the program was designed to handle. Significant coordination by all stakeholders in cooperation with non-political objective science public health programs will be needed for the system to meet the enormous demands that it will encounter. Employers, insurance companies, and Labor organizations should pro-actively encourage and implement new and innovative diagnostics and treatments to facilitate recovery as quickly as possible.

Recommended Citation: Gelman, Jon L., Innovation is Necessary to Meet the Challenge of COVID in 2022, Workers' Compensation Blog (Jan. 5, 2022), https://workers-compensation.blogspot.com/2022/01/innovation-is-necessary-to-meet.html

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 5 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

Twitter: jongelman