COVID-19 Claims Growing Among California Workers

workers' compensation claims

The number of COVID-19 workers’ compensation claims in California has seen a steady climb, reaching a total of 31,612 from when the pandemic started until the end of July, according to the latest figures from the Division of Workers’ Compensation.

In July, 9,515 California workers filed COVID-19 workers’ compensation claims, as well as 74 coronavirus-related worker deaths ― bringing the total to 140 fatalities. The total claims account for 10% of all claims filed between January and July, despite the first claims being filed only in March.

These numbers are fluid and are certain to grow as more claims are filed after the fact, as there are often time lags in claims filings.

For example:

May claims ― As of July 6, there were 3,889 claims, but as of Aug. 10 the number had risen to 4,606.

June claims ― As of July 6, there were 4,438 COVID-19 workers’ comp claims. But as of Aug. 10, that figure for June claims had more than doubled to 10,528. 

Based on these claims development stats, the California Workers’ Compensation Institute projects there could ultimately be 29,354 COVID-19 claims with July injury dates and 56,082 COVID-19 claims with January through July injury dates.

Who is filing claims?

The top five sectors reporting COVID-19 workers’ compensation claims during the first seven months of the year are:

  • Health care workers (40% of all claims)
  • Public safety/government workers (6%)
  • Retail workers (8%)
  • Manufacturing (7%)
  • Transportation (5%).

Handling workers’ comp claims

In early May, Governor Gavin Newsom signed an executive order extending workers’ compensation benefits to California employees who contract COVID-19 while working outside of their homes during the state’s stay-at-home order.

To qualify for the presumption, all of the following conditions must be met:

  • The worker must test positive for or be diagnosed with COVID-19 within 14 days after a day they worked at your jobsite at your direction.
  • The day they worked at your jobsite was on or after March 19.
  • Your jobsite is not their home or residence.
  • If your worker is diagnosed with COVID-19, the diagnosis was done by a medical doctor and confirmed by a positive test for COVID-19 within 30 days of the date of the diagnosis.

Even when an employee is presumed to have become ill from COVID-19 at work, the employer may dispute that conclusion. In such a case, however, you bear the burden of proving that the injury or illness did not occur at work.

The executive order does not apply to COVID-19-related claims, regardless of date of injury, that were accepted by the claims administrator as compensable prior to May 6.

All of the typical workers’ compensation benefits apply:

Medical care ― Reasonable and necessary medical treatment paid for by your employer to help you recover from an injury or illness caused by work.

Temporary disability benefits ― Payments if you lose wages because your injury prevents you from doing your usual job while recovering.

Permanent disability benefits ― Payments if you don’t recover completely.

Supplemental job displacement benefits ― Vouchers to help pay for retraining or skill enhancement if you don’t recover completely and don’t return to work for your employer.

Death benefits – Payments to your spouse, children or other dependents if you die from a job injury or illness.

The takeaway

If you have an employee who is working on site and who tests positive for COVID-19, you should let them know about their rights to file for workers’ compensation if they miss work and/or need treatment.

The state’s insurance commissioner has approved new rules that bar insurers from using any COVID-19 claims against your experience modifier (X-Mod), so it won’t hurt your workers’ compensation experience if a worker files a claim.

Why Workers’ Comp Claims Spike in the Summer

Construction Site

Workplace injury rates rise during the summer months. When summer rolls around, companies in many sectors, including agriculture and construction, significantly increase production.

Increased road construction raises risks for workers and drivers. Many of the newly hired workers are young and inexperienced, creating a high potential for workplace injuries.

Toiling in the sun is also a leading cause of weather-related injuries, including heatstroke, heat cramps and heat exhaustion. Heat illnesses occur when the body overheats to the point it cannot cool off, even with profuse sweating.

Young workers

Too often, young workers enter the workforce with little or no on-the-job safety training, heightening safety risks.

Recently, the Washington State Department of Labor & Industries released a report showing that teens are twice as likely to be hurt on the job as adults.

In Washington state, a total of 547 youths aged 17 and under were injured in the workplace in 2014, up nearly 14.7% over the previous year. Of the total, 173 were in the food and hospitality industries. The next largest total, 80, was reported in both the retail trades and agriculture.

Falls to the floor increased 77%, to 55 cases, as the chief cause of injury.

Young workers, aged 14 to 24, have more accidents because they lack the knowledge, training, and experience to prevent them. Some common issues employers encounter with young workers are:

  • They do not understand what can go wrong.
  • They do not always follow the rules.
  • They fail to use personal protective equipment (PPE) or use it incorrectly.
  • They horse around on the equipment.
  • They do not ask questions.
  • They think they are infallible.

It’s also important for supervisors to recognize the physical, cognitive and emotional developmental differences between young and adult workers. It takes extra effort to train and supervise seasonal employees on working safely.

Here are some training suggestions:

  • Repeatedly demonstrate job procedures and safety precautions. Don’t overlook the basics, such as starting and stopping equipment.
  • The step-by-step instructions for any task must include the task’s hazards and how to avoid them. Take the time to clearly explain the risks of not following the proper steps. Use examples.
  • Explain when and how to use PPE, as well as where to get it, how to inspect it, and how to remove and store it properly.
  • Train one-to-one with young workers and observe them performing tasks.
  • Encourage them to report problems and to ask questions.
  • Assign specific clean-up tasks and emphasize the importance of a clean, clutter-free worksite.
  • Control the hours worked. Many popular summer jobs, such as construction workers, landscapers, and jobs in hospitality and food industries, require long hours of work in the heat that can lead to fatigue, inattention, and stress, increasing the likelihood of injury.
  • Provide a mentor.
  • Demonstrate that safety is a priority at your facility. Words aren’t enough. New workers also need to see actions that reinforce the message: clean worksite, properly labeled hazardous substances and readily accessible safety data sheets, workers wearing required PPE and who are concerned about workplace safety and show it, and so on.

Heat illness dangers

While there are many excellent resources on dealing with heat, it’s important for employers to recognize that there are individual differences among workers and those who are struggling may be hesitant to complain.

The American Society of Safety Engineers calls heat the “unseen danger” at construction sites because the symptoms of heat illness can be subtle and misinterpreted as mere annoyances rather than signs of a serious health issue.

Workers new to outdoor jobs are particularly vulnerable. Implementing an acclimatization program, providing adequate water and frequent breaks are all critical, but the best way for employers to prevent heat illnesses is to consistently interact with workers to gauge how they’re feeling and provide current information on weather conditions.

Also, using apps, such as OSHA’s Heat Safety Tool, is a good way for workers to monitor their risk levels.

New Rule Simplifies X-Mod Calculation, Encourages Reporting First Aid Claims

A new method for calculating workers’ compensation experience modifications (X-Mods) took effect in California on Jan. 1.

The Workers’ Compensation Insurance Rating Bureau of California has created a new simplified formula for calculating X-Mods as part of its efforts to add more transparency to the process. The new formula excludes the first $250 of every claim for the X-Mod computation, no matter how large or small the claim is.

This also means that if an employer pays, say, $200 for first aid on a minor workplace injury, they are required to report it as a claim. Doing so will not affect their X-Mod in any way, no matter how many first aid claims they have.

The goal is to encourage employers to report all claims, even those that may require minimal medical treatment or first aid.

Examples:

  • If you have a $10,000 primary threshold and you have a claim that ends up costing $6,000, the amount used to compute your X-Mod would be $5,750.
  • If you have a $10,000 primary threshold and you have a claim that ends up costing $17,000, the amount used for calculating your X-Mod would be $9,750.
  • If you have a claim that’s valued at $250 or less, the claim will still show on your experience rating worksheet, but it will not be used at all when calculating your X-Mod.

Does this affect your current X-Mod?

Yes. Any claim incurred against policies incepting during the experience period for your 2019 experience modification, which includes 2015, 2016 and 2017 policy years, will be used in the X-Mod computation at $250 less than its reported value.

Claims costing $250 or less will be shown on worksheets, but will not be used in X-Mod calculation.

Reporting first aid claims is required

Workers’ comp regulations require that all claims that cost some amount of money to treat must be reported to your workers’ comp carrier, which in turn must report to the Rating Bureau so that it can accurately keep workers’ comp records on employers that are experience rated.

The rules have already been on the books for years, but the problem of non-reporting became too great, so the Rating Bureau has stepped up to encourage employers to follow the rules. And in this case, it can’t work against you.

Employers Failing to Report Serious Injuries to OSHA, DOL finds

Workplace Injury

A recent federal government report has urged the Occupational Safety and Health Administration to take steps to ensure that employers report fatalities and injured worker hospitalizations.

Many employers may not be aware, but in 2015 OSHA amended its severe-injury reporting rule to require that employers report the inpatient hospitalization of a single injured employee. Prior to the new rule, they only had to report to OSHA if three or more workers were hospitalized.

Other parts of the rule were left unchanged, including:

  • The requirement that employers report to OSHA workplace fatalities within eight hours.
  • The requirement that employers report any amputations or the loss of an eye within 24 hours.

 

Amputations are defined by OSHA as: “… the traumatic loss of all or part of a limb or other external body part. This would include fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; and amputations of body parts that have since been reattached.”

Inpatient hospitalization is defined as: “A formal admission to the in-patient service of a hospital or clinic for care or treatment. Treatment in an emergency room only is not reportable.”

Between January 2015 (when the new rule took effect) and April 2017, employers reported 23,282 severe injuries to OSHA in addition to 4,185 workplace fatalities, according to the report by the U.S. Department of Labor’s Office of Inspector General.

OSHA shortcomings

But the report found that OSHA had no assurances that employers reported hospitalizations, amputations and losses of an eye – and that only about half of those injuries were reported.

It also found that the agency was not consistent in citing employers that failed to make the reports in a timely manner.

Overall, the report found that OSHA had not been consistent in monitoring employers that it had authorized to conduct their own investigations into what had caused the incidents.

The report had sampled 100 severe injuries and found that OSHA had made inspections in only 37 of the cases and allowed employers to investigate in 63 of the cases.  But in 50 of the 63 cases that employers were supposed to investigate, the report found that OSHA failed to document its decision to allow employers to perform an investigation.

In about 87% of employer investigations, OSHA lacked justification for its decisions to allow employers to perform an investigation or closed investigations without sufficient evidence that the employers had abated the hazards that caused the accident, according to the report.

Employer takeaway

Safety specialists predict that the report could spur OSHA to take a tougher stance and improve its policing.

The report recommendeds that OSHA develop guidelines and train its staff on how to detect non-reporting of these incidents, and issue citations for late reporting or failure to report.

As an employer, you should be diligent about always following OSHA regulations, and now in particular, by following the rules on reporting serious injuries or fatalities.

If you do have a serious injury as defined above, here’s what you need to know:

 

To make a report:

  • Call the nearest OSHA office;
  • Call the OSHA 24-hour hotline at 800-321-6742; or
  • Report online, at www.osha.gov/pls/ser/serform.html.

Be prepared to supply:

  • The name of your business;
  • Names of employees affected;
  • Location and time of the incident;
  • Brief description of the incident;
  • Contact person and phone number.

Workers Who File Claims More Likely to File Subsequent Ones

A new study has found that people who have had workers’ comp claims in the past are more likely to file future claims compared to those who have never suffered an on-the-job injury.

The study – the subject of an article published in the Journal of Occupational and Environmental Medicine – concluded that a past claim is the most predictive factor in determining the likelihood of future workers’ comp claims.

While the findings shed light on a significant driver of workplace injuries, employers are in a difficult position as asking prospective employees about past claims experience is illegal in most jurisdictions.

The main findings of the study, “Reoccurring Injury, Chronic Health Conditions, and Behavior Health: Gender Differences in the Causes of Workers’ Compensation Claims,” are:

  • A higher proportion of both men and women who had filed workers’ comp claims in the past also experienced a subsequent workplace injury.
  • For both genders, a past claim is the most predictive factor in determining the likelihood of filing a future claim.
  • Women who had certain pre-existing behavioral risk factors like depression, poor sleep habits and headaches were more likely to file a subsequent claim if they had already filed one. These same risk factors did not add to the likelihood among men in filing second claims.
  • Future claims are associated with individual workers’ overall health.

 

The takeaway

Besides addressing workplace hazards proactively, anytime you have a workplace injury, you should investigate to determine how the incident occurred. Once you identify what went wrong or broke down in your processes leading to the incident, you can address the problem through new safeguards and training.
Also, if an employee does file a claim, when they are back on the job you should give them additional safety training and attention to reduce the chances of them suffering future workplace incidents.

And what about prospective employees? First off, most states bar employers from asking prospective hirees about any past workers’ comp claims they have filed with previous employers.

The Federal Americans with Disabilities Act, as well as numerous state laws, seeks to protect job seekers from discrimination in hiring as a result of filing valid claims.

The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim.

If you are considering trying to obtain past workers’ comp records, you should consult with a labor lawyer before making any moves.