COVID-19 Continues to Present Evolving Challenges for Employers, Insurers and Third Party Administrators in Missouri

August 2020

By: Noah P. Hamann

COVID-19 continues to present evolving challenges for employers, insurers and third party administrators. Adjusting to these unprecedented claim situations requires a careful analysis of facts, rules, laws and the political climate.

Like many other states, Missouri’s Division of Workers’ Compensation has taken action aimed at addressing COVID-19 injuries and illnesses. While its COVID-19 rules have been in effect for several months, they are worth revisiting as Missouri is experiencing a rise in confirmed cases and hospitalizations. Recently, White House Health officials identified the St. Louis and Kansas City regions as “areas of rising infections.”[1] This uptick likely suggests the claims industry may also see an increase in COVID-19 related workers’ compensation allegations from employees. For these reasons, it is worth taking another look at the Division’s current rules relating to the pandemic.

8 CSR 50-5.005 became effective on April 22, 2020, and is retroactive in its application. It sets forth a presumption of occupational disease for First Responders.[2] Such presumption shall include situations where the First Responder is quarantined at the direction of the employer due to suspected COVID-19 exposure, or they display any COVID-19 symptoms, or receive a presumptive positive COVID-19 test, or receive a COVID-19 diagnosis from a physician, or receive a laboratory–confirmed COVID-19 diagnosis.

The rule specifically identifies First Responders as “law enforcement officer, firefighter or an emergency medical technician (EMT).” While it seems plain that only these specifically identified professions meet the definition of a first responder, it is anticipated that the employee’s bar will try to broaden the scope of covered jobs through legislation or case law. It stands to reason that claims will occur impacting “essential workers” like doctors, nurses, medical cleaning staff, grocery workers, nursing home and long term care employees, etc. The rule presently does not give these employees the presumption of a work related occupational disease, but it is foreseeable that judges will give deference to these industries. We can anticipate the Division will experience political and societal pressure to give essential workers a de facto presumption of occupational disease. Accordingly, careful attention should be paid to all COVID-19 claims, even if the employee is not a First Responder because there may be an implied burden shifting to employers.

A First Responder is not entitled to the presumption if a subsequent medical determination establishes by clear and convincing evidence that the First Responder did not actually have COVID-19, or contracted or was quarantined for COVID-19 resulting from exposure that was not related to the First Responder’s employment.

A detailed investigation will be key to overcoming the presumption. Medical records should be obtained to verify that the employee actually has COVID-19. Medical records will also be key to see if the histories point to a work related cause or if instead there are references to other causes like family or travel.

It is also recommended that you speak with the employee’s supervisor and/or coworkers to see if the claim is corroborated or if instead the employer suspects another cause. Witnesses from the employer often have a wealth of information to assist in the claim investigation.

Employees who do not meet the definition of a First Responder will not enjoy the formal presumption and will be required to prove their occupational disease like any other employee. The occupational disease must still “arise out of” and occur “during the course and scope of” employment. The employee’s work activities or the work exposure must be the “prevailing factor” in causing the condition to occur. Ordinary diseases of life to which the general public is exposed to outside of employment shall not be compensable. The disease need not to have been foreseen or expected, but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. RSMo 287.067

Without the presumption of causation, all non-First Responder employees must first prove their case, as opposed to automatically putting the employer in the rebuttal position. However, an immediate and thorough investigation is the best tool in your arsenal. Again, obtaining medical records, scrutinizing histories and talking to witnesses is the best course of action for handling these claims. All COVID-19 claims, First Responders or otherwise, are complex and are inherently sensitive for employers and employees and every effort should be made to put the best defense forward. Moreover, as previously indicated, even without the presumption of causation, we can still expect a great deal of deference to the employee in COVID-19 situations, especially for essential workers. A timely and detailed investigation is key.

Looking ahead, 8 CSR 50-5.005 expires on February 1, 2021. It is very possible that the rule will be extended. We also expect COVID-19 occupational disease claims will be addressed by the legislature when it reconvenes in January or earlier if a special session is called. Legislation could expand the employees affected by the presumption. Our office will closely monitor any such developments and will keep you apprised.

We welcome any questions you may have as we all navigate these uncharted waters together.

[1]https://www.kansascity.com/news/local/article244766807.html

[2]https://labor.mo.gov/sites/labor/files/8_CSR_50-5.005_Emergency_Final.pdf