Washington’s Department of Labor & Industries Announces Changes to Covid-19 Presumption and IME Rules
As the saying goes, change is constant. Never, it seems, has this saying been more applicable to Washington workers’ compensation laws and claims administration. The past few years have seen drastic changes in how employers process and manage Washington workers’ compensation claims (the ramifications of Maphet continue to unfold), and more changes are in store. Just last week, the Department of Labor & Industries made two announcements that are poised to have significant impacts on administering claims.
Covid-19 Presumption Ends April 11, 2023
On April 21, 2023, the Department announced that the coverage presumption for Covid-19 ends for both health care and frontline workers exposed to the virus as a result of their work duties after May 11, 2023. The Department then announced on April 27, 2023 that the presumption was no longer in effect as of April 11, 2023.
The coverage presumption will no longer apply to claims when the alleged Covid-19 exposure occurs after April 11, 2023. Instead, Covid-19 claims for exposure occurring after April 11, 2023 will be considered under the usual occupational disease criteria.
The presumption will still apply for healthcare workers who identify an exposure date between February 29, 2020 and April 10, 2023 and for frontline workers exposed between May 11, 2021 and April 10, 2023. Workers will still have to timely file their claims and otherwise meet allowance criteria for a valid presumption claim.
If you received a Covid-19 claim after April 10, 2023, it is vital to assess the identified exposure date. You may also have to investigate whether a worker was working on or before April 10, 2023 to verify whether the presumption applies. Assessing a worker’s non-work activities and potential exposures will also remain key to assessing compensability of Covid-19 exposure claims as the employer may still be able to rebut the presumption even if an exposure allegedly occurred on or before April 10, 2023. However, evaluating compensability of Covid-19 claims for health care and frontline workers should prove less challenging in cases where the alleged exposure occurred after April 11, 2023.
More Proposed Changes to IMEs
Independent medical examination (IME) rules and administrative codes have undergone a lot of changes since the Covid-19 pandemic began. While many of us are still wrapping our heads around the impact to changes to RCW 51.32.110 and 51.36.070 and the creation of RCW 51.36.072 that led, in part, to the drastic changes to IMEs that the Department enacted last April, more changes are currently in development. These additional changes are currently scheduled to go into effect on August 1, 2023.
The Department is currently accepting written comments and a public hearing is scheduled for May 24, 2023 on two proposed administrative codes. One, proposed WAC 296-23-358, is intended to address what an employer can do when there are no approved specialty IME providers in a location that is reasonably convenient for the worker. Proposed WAC 296-23-359 is intended to address when it is appropriate to conduct an IME via telehealth rather than in person.
Proposed WAC 296-23-358 states that when there is not an IME provider in a worker’s community or a location reasonably convenient for the worker, an employer can consider whether a consultation would be more appropriate, telemedicine is possible, or whether it can notify the worker or their representative of the lack of IME provider options before scheduling the IME outside the worker’s community or a reasonably convenient location. This last option would be subject to some restrictions: 1. The travel cannot exceed any restrictions the attending provider has imposed that cannot be overcome by alternative methods of travel, 2. The employer assists the worker with travel accommodations, and 3. The employer pays for the accommodation per the Department’s fee schedule. For example, under this rule, if the employer wants to schedule an IME with a neurologist but there is not an approved neurologist independent medical examiner in the worker’s community or reasonably convenient location, an employer would be required to consider whether a consultation under WAC 296-20-051 is appropriate, a telemedicine IME is possible, or whether the worker can be required to travel to where the nearest available neurologist examiner is located.
Proposed WAC 296-23-359 would permit telemedicine IMEs for the following specialties: mental health, dermatology, speech (when there is no documented hearing loss), kidney function, hematopoietic system, and endocrine examinations. This rule appears to limit the reach of proposed WAC 296-23-358 for cases where physical examinations are usually necessary to assess a worker’s condition, work restrictions, impairment rating, etc. For the example above when an IME with a neurologist is needed, it does not appear that the employer would have to consider whether a telemedicine examination is possible to avoid requiring a worker to travel for the examination.
These rules are not final and have not been adopted. These proposed rules can be foundhere. The Department has scheduled a public hearing for these rules on May 24, 2023 that can be attended virtually or telephonically. Information on how to attend can be found here. Written comments on the rules are due before 5:00 p.m. on May 24, 2023.
The rules and landscape of Washington workers’ compensation and how claims can be administered is, true to the saying, constantly changing. Some changes, such as the end of the Covid-19 coverage presumption can drastically change how claim compensability is assessed and investigated. Others can make utilizing tools such as IMEs more complicated and require creative thinking and problem-solving skills. SBH Legal prides itself in not only consistently and carefully monitoring these ongoing changes, but also how we respond to them so that we can continue to provide high quality, informed, and results-oriented advice and services to our clients. If you have any questions or want to discuss how these latest changes impact you, please do not hesitate to contact me at 503-412-3117 or .