5-12-2020; A “How To” on Defending Work Injuries for Employees Who Will Continue to Work From Home; New Proposed IL legislation to Deal with the Covid-19 Crisis and more
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Synopsis: Managing a New WC/OD World After Covid-19 Passes—A “How To” on Defending Work Injuries/Exposures for Employees Who Will Continue to Work From Home.
Editor’s comment: I feel confident Covid-19 is cresting and going back down to the point it will soon disappear from our lives. Yes, some of that sentiment may be “hopeful thinking” by me. What I do feel we are going to experience is lots of workers are going to try to remain at and work from home. I assure my readers if your account/company has folks working from home, they can and will receive WC/OD benefits for work-related injuries and exposures. In short, these benefits don’t end when the worker works from home.
This new “at home” job setting will create WC challenges for risk and claims managers across the country and the globe. When employees work remotely from home or other locations, the normal WC rules of In The Course of and Arising Out Of or ICO/AOO become complicated and challenging.
The same is true of WC/OD subrogation potential. When an employee is injured in or around their home while working, subrogation targets might be challenging. Cybersecurity can also be greatly compromised when an employee utilizes an unsecured or public Wi-Fi source and works from home using an unsecure personal laptop, notebook, cell phone, or other electronic device.
In the wake of the global pandemic involving the COVID-19 coronavirus, employees across the globe are being told to work from home or given that option. I think lots of workers are going to want to remain at home for months or maybe for all the future time they will be working. Claims handlers and subrogation professionals should be aware of the many legal nuances that arise when employees work from their couch or the local coffee shop.
The cost savings of having employees work from home, combined with convenience for workers, has made “work from home” a growing phenomenon. Rest assured, injuries/exposures occur at and around home just like they do in the workplace. As a general rule, if an employee deviates from performing their job for a personal benefit and is not furthering the business of the employer, then any injury that occurs during the period of deviation is usually not considered within the course and scope of employment and, therefore, is not covered. Once the employee returns to the home work site or returns from the deviation to the course of employment, then any work-related injury/exposure that occurs after that point is covered. This line is fairly bright when you have employees leaving their home desk/office and travelling to and from lunch.
Crucial to Managing an “At Home” Work Accident or Exposure—Seek Rapid Reporting and Thorough Incident Investigation
What you can immediately tell for all claims and risk managers trying to deal with “at home” injuries—you have a major accident investigation issue. It is crucial to do two things:
Confirm for all your workers they need to report any work-related incident or exposure at the earliest opportunity—Send the message that coverage may be blocked or unnecessarily delayed due to late reporting;
And then document, document, document what the worker did prior to, at the time of and after the incident. Do a full incident investigation protocol—consider visiting the worker at the earliest opportunity to get the scoop on what happened, where and why it occurred.
You should have something of an advantage over the workers when you diligently investigate any asserted work-related incident—you know what you are looking for and you have to hope the employee is going to tell you the truth, the whole truth and nothing but the truth.
Please remember “horseplay” is usually not a WC-covered activity in most states. If the employee is feeding their cats or emptying a litter box while at home and falls down, I don’t feel that should be WC-covered. When the instrumentality of the injury is solely within the province of the employee and the employee can say just about anything regarding what caused the injury and when it occurred, employees injured while working at home must be handled differently for purposes of both the initial claims handling and subrogation. Diligent questions must be asked, and different standards must be adhered to.
WC/OD Claims concerns involving remote employees is not limited to worldwide pandemics. According to a report published in 2010, nearly 24% of American workers reported routinely doing some or all of their work from home. A recent study revealed that more than 60% of the world’s work force works at least one day a week remotely and that almost 50% of all employees work half the week outside of the office.
Employers who are concerned with workplace safety have little or no control over the employee’s home office environment. The challenges are not the employers’ alone, either. Employees also have increased challenges and risks when working from home. It is much more difficult to prove an injury was work-related because there is usually less evidence available in these home office scenarios. An accident at a business or job site may have witnesses or be caught on security footage. Work at home employees are often all by themselves while they work, so there is often no one present to corroborate a sudden injury or accident or to help determine the precise conditions of the injury.
Another challenging WC/OD claim issue arises with regard to the “Coming and Going Rule.” Although the rule varies from State to State, it generally provides that if an employee is injured on their commute to or from work (in other words, “coming and going”) this is not considered within the course of their employment and would, therefore, not be covered. There are exceptions to this rule.
· Employee’s employment contract includes transportation to and from work;
· Employee has no fixed place of work;
· Employee is on a special mission for employer; or
· Circumstances are such that the employee was furthering the business of the employer.
WC Subro Challenges
When employees are injured while working at home, subrogation can be challenging. If the work at home injury is caused by a dangerous condition due to the employee’s roommate or the employee’s landlord, new questions of third-party liability must be examined. Contact Brad Smith who heads KCB&A’s subro team at bsmith@keefe-law.com or just send me a reply to consult in such situations, because the First Report of Injury and the first communications with the employee suddenly become subrogation-related—something most claims and risk professionals are not accustomed to.
Summary
I promise my readers we are soon to see lots of “at home” injuries and claims. You need to start letting all workers know to report any injury/exposure at the earliest opportunity and you then have to do a full incident analysis to determine compensability and possibly start reserving and paying medical bills and lost time.
If you have questions or concerns about how to best defense at home WC/OD claims, send me a reply.
Synopsis: New and Alarming IL legislation from the IL General Assembly to deal with the COVID-19 pandemic.
Editor’s comment: We first saw this proposed legislation on the IL State Chamber’s weekly update. We join in the State Chamber's opposition to this bill. Please note there is no stopping the Democrat “super-majorities” in the IL House and Senate—the only thing that can “slow” legislation in this one-party state is the media and an uprising from voters to your representatives. I recommend all my readers from the defense side of the WC/OD matrix consider joining the IL State Chamber, as they “have your back” on all issues of importance to you and your business. For more information, take a look at their website at www.ilchamber.org.
HB 5769, sponsored by Rep. Andre Thapedi (D-Chicago) would create the Personal Protective Equipment Responsibility Act (or PPERA) requiring an IL employer designated as an “essential employer” under a disaster proclamation issued pursuant to the Illinois Emergency Management Act or an executive order issued pursuant to the disaster proclamation to provide personal protective equipment to independent contractors and to all employees during the duration of the disaster proclamation or executive order. It also creates a new common law cause of action allowing the recovery of damages, including punitive damages, and attorney's fees. In my view, this is “business-busting” litigation that would crush mid-sized and small businesses under new exposures and claim costs.
First, the legislation seeks to bypass the workers' compensation system and our "exclusive remedy" doctrine. The “exclusive remedy” doctrine bars employees injured on the job from making a tort liability claim against their employer. The rapid and certain benefits provided under workers' compensation or occdisease are the sole remedy available to an injured or ill employee.
The IL Workers' Compensation and Occupational Disease Acts and case law provides that if an employee contracts a disease that is caused by the workplace, such as COVID-19, defined benefits are paid to the employee and the employer is protected from having to defend expensive and protracted litigation along with devastating legal issues like punitive damages.
Second, the PPERA provides a cause of action for independent contractors which under the law are not employees. We consider it very odd to start supervising the relationship between companies that hire independent contractors.
I join with the IL State Chamber to confirm this is a very flawed bill that could seriously harm IL employers at a time when they are struggling to remain viable and need the most help and will actively be opposing this legislation. Please watch this space for news as this legislation proceeds.
Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.
Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com
What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:
Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.
We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.
Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.
Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:
Interviewing – the ability to draw out the relevant information through effective questioning
Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations
Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation
Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk
Interaction – personal attributes that enable effective relations with other people
Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified
If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com