Langham: A Strenuous Policy

Wednesday, May 27, 2020 | 0

Arizona made the news recently with a memorandum regarding COVID-19/Wuhan/SARS-CoV-2.

Judge David Langham

The state Industrial Commission issued a substantive policy statement effective May 15, 2020. It says that those "administering Arizona workers’ compensation claims may not categorically deny COVID-19 claims" (emphasis original).

Such a statement might lead one to wonder if the commission views non-COVID-19 claims less emphatically. Later in the statement, the commission perhaps disabuses any such misconception: 

"Like all workers’ compensation claims, a denial of a COVID-19 claim must be based upon a reasonable investigation and must be based on facts and evidence relevant to the claim." 

Such denial of COVID-19: 

"... like any claim denial, must be 'well-grounded in fact' and 'warranted by existing law' (or based upon a good faith argument for the extension, modification or reversal of existing law)." 

That clarifies it, perhaps. But if all denials must be so predicated, some may question why a separate and special statement was deemed necessary as regards COVID-19 (we object to you denying claims without reasonable investigation or in bad faith, but we STRENUOUSLY object to you doing so regarding a COVID-19 claim).

The implication also reminded me of a question raised on one of the national webinar discussions of COVID (which seems like eons ago, but was likely in April). The foundation was, essentially, "Why not just accept such claims? They should not be that expensive."

Economically there may be merit in that thought process. As mentioned recently in COVID-19 Again, a New Week, a great many may only suffer minimal injury-caused (direct) loss from this virus. But there are also indications that some state presumptions may implicate billions of dollars in liability. That post also describes an attempt to categorize the damages from COVID infection into "immediate," "intermediate" and "long-term" categories. 

Those with immediate costs (the quarantine period, the COVID test, etc.) might comprise the majority of affected employees. But, there are also those who have suffered long-term infection. One in Canada has tested positive eight times. She has been experiencing symptoms for about 50 days, including shortness of breath. 

CNN reported on a Floridian who has been stuck for 62 days on a ship, also testing positive eight times. Thus, the initial quarantine for some may be more lengthy, and thus more costly, than for others. 

There is debate as to when a patient has recovered from COVID. That has led some jurisdictions not to report how many have "recovered," as described by The News and Observer in North Carolina. Is it primary symptoms, active infection or the end of "residual symptoms and complications?" At what moment is one "recovered?"

The Dallas Morning News reports that various questions lead to doubts in the definition and reliability of recovery figures. Therefore, some elect not to publish such conclusions. In that environment, a payer might likewise wonder how serious, or potentially serious, any particular case might be. 

At this stage, we wonder if recovery from COVID-19 brings immunity from future infection. Some have expressed doubts as to herd immunity, as reported by the Mirror. There have been studies that support monkeys do develop immunity, as recently reported by Reuters. SkyNews recently reported doubts as to the longevity of immunity, perhaps lasting only six months after infection. The various studies, reports and news merely leave us all with conflicting hopes and varying conclusions. 

The World Health Organization (WHO) as recently as April suggested that "the idea that one-time infection can lead to immunity remains unproven." But, the WHO's credibility has been called into question, according to the Wall Street Journal.

Overall, finding credible COVID-19 news can be a challenge. MarketWatch recently reported on a study of news coverage. A study of over 1,500 articles rated news providers on their content found "not a single major news outlet cracked the top 10" in the rankings.

The number one news source for COVID, according to that research, was Smithsonian Magazine.

Thus, today we wonder where this virus is taking us. We hear reporters tell us of the "new normal," but some encourage us not to reach conclusions just yet on what that will look like. 

A patient apparently might find himself infected, reinfected and reinfected yet again. The serious and long-term medical downsides like fibrosis or other complication could occur through any one of those infections.

As an employee progresses through life, it is possible that litigation might eventually ensue as to which of several infections caused the need for particular care or resulted in the particular disability or impairment for which compensation is sought. The facts are, as of May 2020, no one credibly and completely can claim to know what all the COVID-19 facts are. We perhaps don't even yet know what we don't know. 

There is potential for permanent, or at least long-term, health issues. Healthline reported that "respiratory infections can damage lungs." The risks include asthma, wheezing or a persistent "shortness of breath — even after lung function returns to normal." 

ABC News reports that some believe a patient could "develop lung fibrosis" from the infection. There is some suggestion that some patients might "never regain lung function," and there is some risk of lung tissue being permanently damaged or "destroyed by the virus." 

There are many questions at this stage. As ABC noted: "The very first people who contracted COVID-19 and recovered are less than six months" into recovery. It is seemingly too soon to make valid predictions on the future impacts this disease may hold for various individuals. Thus, assessing the cost of accepting the compensability might be equally challenging at the present time. 

It is worth mentioning that there are, notably, limitations on workers' compensation death benefits in most jurisdictions. Thus, those benefits are perhaps more readily predicted. However, they might not be the most expensive element of a COVID-19 workers' compensation claim.

Intensive care hospitalization, ventilators and more could result in significant costs rapidly. Fortunately, at least thus far, the frequency of death has not been as high as initially forecast. One model predicted 2.2 million dead, according to the CATO Institute. Instead, most appear to suffer far less severe outcomes. Some conclude that as many as 80% of those infected exhibit little or no symptoms. 

There is much uncertainty, and there are many questions. In the midst of this uncertainty, a payer might accept such a claim in 2020 with less than full knowledge of what the medical or impairment future holds for a particular patient. In some states, the acceptance of such a claim predicated upon a "cost" perceived to be in the immediate category might preclude that payer from later changing course or denying further care and treatment of the condition or the damage it causes. 

In the end, the valid conclusion today seems to be uncertainty. Where this condition will lead a particular patient seems unclear and difficult to predict. That is perhaps not different from various other health challenges faced by various patients. Some state action regarding presumptions is perhaps making those compensability decisions for payers.

Possibly, the Arizona directive regarding denial is less conclusive or directive than a presumption, but nonetheless "encouraging acceptance" of diagnosis. Time will tell where this malady leads, and what responses were appropriate.

There appear to be many concerns for us personally and as a society. Government is making decisions about the disease, sometimes on less than perfect information as the science continues to struggle with interpretation and prediction. The effects, in the long term, personally and beyond, are elusive.

Time will tell all. Hindsight is always 20/20.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.