by Dale Hamblin
Assistant General Counsel/Attorney Manager
Department of Workers’ Claims
COVID-19. A designation for some extraterrestrial body? Perhaps a secret government operation involving a famous British spy? Of course not. It is a word, a designation, that has forced its way into everyday speech. A way of describing a specific novel coronavirus. Not all that long ago, few of us would have known it referred to a virus of any type and even less of us would have cared. No longer. It represents a virus that has affected the lives of everyone throughout the world. It has affected commerce and altered the way we go about our daily lives. In doing so, it has exposed employees and employers alike to risk unlike any faced before and it is making its impact felt throughout Kentucky.
While the purpose of workers’ compensation legislation is the subject of several court opinions, at its heart, workers’ compensation represents a “grand bargain” between employees and employers. In short, employees receive defined wage replacement and medical benefits for workplace injuries and occupational diseases while employers are relieved from traditional tort liability. Kentucky’s workers’ compensation system has faced and overcome many challenges as it evolved from its inception in 1914 to the present iteration, KRS Chapter 342. Initially, the act contemplated only traumatic workplace injuries but, over time, came to include narrowly defined occupational diseases. It now faces a new challenge, one that would not have been conceivable two years ago; the impact of COVID-19.
The workers’ compensation system was not designed to address the adverse impact of a viral pandemic on the workforce; yet, it has been called upon to do exactly that for the past nine months. Like most other states’ compensation systems, the Kentucky workers’ compensation program has wrestled with the issues brought on by COVID-19 from both an administrative and programmatic standpoint.
As a basic matter, to receive compensation benefits an employee must have a work-related injury or occupational disease. The “injury” must be a traumatic event (or series of events) arising out of and in the course of employment and be the proximate cause of a harmful change in the human organism as evidenced by objective medical findings. By definition, “injury” does not include the effects of the natural aging process and, specifically, does not include any communicable disease unless the risk of contracting the disease is increased by the nature of employment. While an “occupational disease” does mean a disease arising out of and in the course and scope of employment, the statutory definition of occupational disease has been narrowly defined and is subject to specific conditions and limitations beyond the scope of this article.
On March 6, 2020, Governor Andy Beshear issued Executive Order 2020-215 declaring a state of emergency in the Commonwealth of Kentucky in response to the COVID-19 pandemic. On April 9, 2020, Governor Beshear issued Executive Order 2020-277, which entitled employees to payment of temporary total disability benefits pursuant to KRS 342.730(1)(a) when removed from work by a physician due to occupational exposure to COVID-19. On April 15, 2020, the Commissioner of the Department of Workers’ Claims (“Commissioner”) issued guidance regarding the scope and application of Executive Order 2020-277. In short, the guidance confirmed that the Order applied only to payment of temporary total disability benefits prospectively from April 9, 2020, did not extend benefits to workers not otherwise subject to coverage under the Workers’ Compensation Act, and provided examples of evidentiary considerations in determining compensability.
What impact has this had on Kentucky’s workers’ compensation system? Employers are required to report to the Department work-related injuries that result in absence from work for more than one day, including COVID-19-related work absences stemming from both actual infection and exposure-related quarantine. As of this writing, more than 11,000 COVID-19-related reports have been filed with the DWC; however, only a handful of those have resulted in a claim filed for adjudication.
The long-term impact of COVID-19-related claims on the workers’ compensation system remains an unknown for now because COVID-19’s effect on the human organism is still being discovered. Workers’ compensation benefits for permanent disability are predicated on impairment ratings assigned by physicians applying the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th Ed). At this point, there is insufficient medical data to determine the extent, if any, to which COVID-19 will result in permanent functional impairment ratable under the Guides. As a consequence, while the impact of COVID-19 on claims for indemnity and medical benefits will become more clear in time, it is difficult if not impossible to predict at this time.
To make the prediction more difficult, at the time of this writing, a COVID-19 vaccine has just become available, though not yet to the public-at-large. What influence the availability of this vaccine may have on the spread of the disease is unknown. New issues arise with its existence. For instance, can an employer mandate that an employee take the vaccine as a condition of employment? Can an employee’s refusal to take the vaccine constitute the failure to follow medical advice? A good lawyer can and will raise a plethora of issues stemming from this pandemic, its cause and cures. However, outside of guidance currently offered and programmatic changes made to accommodate a no-contact world, the Department is unlikely to issue guidance regarding those types of issues.
The Department of Workers’ Claims is, at its core, an administrative court system. It strives very hard to be and remain neutral in that role. The Department’s reach is limited to and its boundaries set by KRS Chapter 342. Many of the issues that arise from this current pandemic exceed the scope of those boundaries and the Department will not venture into them.
ABOUT THE AUTHOR
graduated from the University of Louisville Louis Brandeis School of Law and was admitted to the Bar in 1998. He was in private practice before joining the Department of Workers’ Claims in 2006 where he has held various titles, including general counsel and his current title, assistant general counsel/attorney manager.