*   Is the WC risk one that is manageable or one to which the federal immunity will apply?

Here's a terrific response to my musings on Worker's Comp and sheds valuable insight into the issue. -----Original Message----- From: Suzanne Berger <sberger@baltimorecountymd.gov> Sent: Thursday, May 14, 2020 2:58 PM To: Chuck Thompson <cthompson@imla.org> Subject: Re: Workers Comp This article speaks to estimates of costs. https://www.insurancejournal.com/news/national/2020/05/06/567595.htm Speaking for Baltimore County, in Maryland, where we have WC as the exclusive remedy for work related injuries and occupational diseases: (a) Yes- there is the potential for significant workers comp risk/exposure should employees contract Covid 19. The obvious hurdle for the employee is establishing causation and a work related exposure or source contact. That said, if there is no evidence of contact with a contagious non-work contact, and the employee's duties put him/her in close contact (within 6 ft) with members of the public/others who are symptomatic (or even asymptomatic but with unknown testing status), we feel there is a good likelihood a claim for the employee who contracts the virus within the 2 week period thereafter will be found compensable. The same holds for essential employees alleging they contracted the virus from their co-workers in the same work environment, where the co-worker may be asymptomatic but contagious. Consider that co-workers may have been infected and be asymptomatic and report to work, where they have close contact with co-workers in situations that are difficult to control for safe distancing, i.e., altercations with suspects, emergency medical calls, correctional facility events, etc. When one employee tests positive, all those who worked closely with that person are at risk. Because of the lack of available testing, issues with causation and the fact that public safety employees are on the front line with the public, there is a move underway by the public safety unions in Maryland and several other states to add a presumption for COVID19 to their WC law. In some states this has already been accomplished by way of Executive Order. In Maryland there has been discussion about adding it to the existing presumption section of our WC statute, (Md. Code Ann., LE Section 9-503). Costs are potentially very high for this disease due to the evidence showing long term damage to lungs, nuerological, cardiac and other effects from the 'cytokine storm' associated with infection. The science continues to evolve on this issue. Then there is the higher than normal mortality rate for our older employees, which will result in death claims by surviving dependents. Maryland has a presumption for heart, hypertension and lung diseases for a wide range of public safety employees, and it is likely that any affect on those body parts due to Covid 19 may already fall under the existing presumption. To put a dollar value on a single hypothetical claim in Maryland, if we assume a Paramedic contracts Covid19 from transporting a patient and his illness is limited to respiratory damage, we would have a claim for any lost time (paid at 2/3 of his average weekly wage)until able to resume at least modified duty. We would be responsible for all associated health costs, including any home health care needed after discharge. While these employees are generally covered by health insurance, any compensable claim under WC would result in the County being 100% liable for the medicals, with no co-pays, etc. We would obtain a medical assessment of any permanent impairment impairment. To get a sense of the potential long term lung damage from Covid 19 please refer to this recent Johns Hopkins release: https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs Assuming our paramedic is earning a weekly wage of $1,080 ( $56,160 per yr.) and sustained a 25% permanent impairment to his respiratory system, the 'permanency' benefits in Maryland would be worth approx. $45,000, just for that initial 25%, with additional benefits available for any subsequent "worsening of condition". If this employee had a significantly serious level of permanent damage and was found to have more than a 50% permanent partial impairment, the threshold level for permanency benefits at the "serious disability" level in this case would be $239,760. Additional benefits would be available for worsening. Employees can also add together smaller impairments from different body parts (heart, lung, etc. ) to reach an overall "serious disability". So clearly a single case can amount to a big dollar case, without death or even total disability. (i) Paid leave is offered for the first 14 days of Covid 19 illness. After that point, the employee would be required to use their accrued leave. This is likely to lead to claims being filed to preserve accrued leave balances in cases of prolonged illness. Payment under WC is considered an insurance payment/benefit and does not affect the employees accrued leave. Baltimore County ( like many municipal employers in our state) pays employees full pay in lieu of their WC benefit for up to the first year of lost time. This is considered "in lieu of" payment under WC and is not paid from the employee's leave balance. Payment under the WC statute is limited to 2/3 of the employees average weekly wage, so we ( and other municipal employers) actually pay more than the statute requires. (ii) WC benefits in our state would be substantially more than any offsets unless the employee retires on disability directly related to COVID19 and is awarded an accidental disability retirement, paid by our self funded Employees Retirement System. Such benefits are paid at 50% of the employees salary and are considered tax exempt. While it might offset WC it would still be a cost for our self funded pension system. (iii) I do not know the average age of our workforce. For our organization, it would be highly relevant to consider the average age of employees in "higher risk" jobs such as healthcare and public safety/first responders, in order to make this assessment. (b) The risk may be a difficult one to manage, especially in conjunction with any presumption that is added to support causation, and depending on the number of claims and the long term effects on the claimants. Unless there is federal legislation to pre-empt our current State law, these claims will fall under the State WC statute. [https://www.hopkinsmedicine.org/-/media/images/health/1_-conditions/coronavirus/what-coronavirus-does-lungs-teaser.ashx]<https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs> What Coronavirus Does to the Lungs | Johns Hopkins Medicine<https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs> www.hopkinsmedicine.org <p>COVID-19 can cause lung damage and breathing problems that can persist even after recovery. An expert in lung disease explains.</p> 1. Maryland law provides that WC is the exclusive remedy against the employer for all work related injuries and occupational diseases. However, if a 3rd party is responsible for the accident or occupational exposure, the employee has the option of filing suit against the 3rd party and waiving a WC claim against the employer or filing suit against the 3rd Party, along with a WC claim against the employer, and reimbursing the employer out of the 3rd party recovery. Best regards, Suzanne T. Berger Assistant County Attorney Baltimore County Office of Law (410)887-7200 (office) (410)887-8981 (direct) (410)832-2327 (fax) ________________________________ From: Disasterrelief <disasterrelief-bounces@lists.imla.org> on behalf of Chuck Thompson <cthompson@imla.org> Sent: Tuesday, May 12, 2020 3:56 PM To: disasterrelief@lists.imla.org Subject: [Disasterrelief] Workers Comp CAUTION: This message from disasterrelief-bounces@lists.imla.org originated from a non Baltimore County Government or non BCPL email system. Hover over any links before clicking and use caution opening attachments. On the call today I was interested in the discussion of workers comp issues. A couple of questions: 1. If your state has workers comp and as a result prohibits suits by employees against the employer; * Would there be a huge worker's comp risk should employees get covid19? i. Because most offer paid leave that offsets benefits, offer medical insurance that offsets benefits and offer death benefits that offset benefits so would not the WC risk be incrementally small? ii. Or would the benefits in your state be substantially more than your offsets? iii. I'm assuming death is not the likely norm and risk would be under 2% or so, since your workforce will likely be made up of younger people than the folks my age who are at risk. * Is the WC risk one that is manageable or one to which the federal immunity will apply? 1. Does your state allow employees to sue the employer despite WC in place and if so, must they choose the remedy? * If a tort action is available, what are the damages in excess of the offsets you're already paying for and do you see a jury accepting an argument that getting sick on the job a high damage tort? Again, if there's a death or serious long term disability, that could be an issue. Any thoughts you'd be willing to share? [photo] Charles W. Thompson, Jr. Executive Director/General Counsel International Municipal Lawyers Association, Inc. 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