As COVID-19 cases continue to surge, keep in mind OAR 436-060-0141 requirements before issuing a denial
As COVID-19 cases continue to surge in Oregon, it is reasonable to anticipate a corresponding surge in workers’ compensation claims related to confirmed COVID-19 cases and/or presumed exposures that require quarantine. When processing these claims, keep in mind the Workers’ Compensation Division’s temporary rule, OAR 436-060-0141, that went into effect on October 1, 2020, and remains in effect through at least March 29, 2021.
In most workers’ compensation claims, it is the worker’s burden of proof to establish his/her disability and/or need for treatment. However, the temporary rule adopted by the WCD establishes a “presumption” of compensability, placing the burden of proof on the employer/insurer/administrator to establish the propriety of a COVID-19 claim’s denial. The temporary rule requires that, for all claims filed for COVID-19 or exposure to SARS-CoV-2 on or after October 1, 2020, the employer/insurer/administrator must conduct a “reasonable investigation” before denying the claim. This reasonable investigation must include:
(a) Investigating whether or not the nature of the worker’s employment resulted in a likely exposure to COVID-19 or SARS-CoV-2;
(b) Determining whether the worker did not work for a period of quarantine or isolation at the direction of a medical service provider, the Oregon Health Authority Public Health Division, a local public health authority as defined in ORS 431.003, or the employer, for purposes of discovering information that may be relevant to the compensability determination;
(c) Obtaining a medical or other expert opinion if, before a compensability denial is issued, the worker tests positive for COVID-19 or a medical service provider diagnoses a presumptive case of COVID-19, the insurer is aware of the test results or presumptive diagnosis, and the source of the exposure is unclear; and
(d) Determining whether medical services were required as a result of potential workplace exposure to COVID-19 or SARS-CoV-2, even if the worker ultimately did not test positive for COVID-19.
As you can see, the temporary rule requires investigation regarding the nature of the likely exposure, determining whether a period of consequent quarantine/isolation led to a loss of wages, determining whether consequent medical services were required, and, perhaps most importantly, obtaining medical/expert opinion that the source of exposure is at least “unclear,” prior to issuing a denial.
Any employer/insurer/administrator that reports five or more COVID-19 claims will be subject to automatic audit by the State regarding the propriety/reasonableness of any denied claims, and/or any other failure to comply with the above requirements. The audit could subject the employer/insurer/administrator to civil penalties.
Here is a link to the WCD’s temporary rule. If you have any questions or concerns regarding the processing of your claim(s) for COVID-19, or any other Oregon workers’ compensation questions, please contact me at aevenson@sbhlegal or 503-595-6109.