April 4, 2020 -
The ongoing COVID-19 pandemic has led to significant uncertainty among employers, employees, insurance carriers, and third-party administrators as to the effect that COVID-19 is having – and will continue to have – upon the workers' compensation system in the State of Michigan. While we recognize that the COVID-19 crisis remains a fluid and ever-changing situation, the attorneys at Charfoos Reiter Hébert, P.C. have prepared a comprehensive and informative update which we believe addresses the most currently pressing issues for employers/carriers and provides our recommendations for the continued administration and defense of Michigan workers' compensation claims.
On March 16, 2020, the Michigan Workers' Disability Compensation Agency formally suspended all in-person hearings for the next five weeks, or until April 20, 2020. It is our understanding that the current restrictions as to in-person hearings may be subject to additional extension, pending further assessment by the Workers' Disability Compensation Agency as to the ongoing public health emergency. In the meantime, however, the Board of Magistrates has issued a blanket adjournment for all hearings that were previously scheduled during this period of closure and distributed new dates for each Magistrate's docket. We will advise clients of the rescheduled hearing dates accordingly.
During the period while in-person hearings remain suspended, the Board of Magistrates is still conducting Redemption Hearings and Facilitation Hearings via telephone. We encourage our clients to continue extending settlement authority on cases that are ripe for Redemption, as plaintiffs and their attorneys may be more amenable to resolving claims via lump sum agreements during these trying and uncertain economic times.
On March 18, 2020, Michigan Governor Gretchen Whitmer enacted Emergency Administrative Rules for the Workers' Disability Compensation Agency relative to all "first response employees," as the Workers’ Disability Compensation Agency has deemed those individuals to be the most susceptible to COVID-19 exposure within the course and scope of their employment. These Emergency Rules were subsequently amended on March 30, 2020. The Emergency Rules currently define a "first response employee" quite broadly, including almost every health care provider working in a health care organization/agency/facility, as well as any person working as a paid or on-call police officer, fire fighter, EMT, volunteer or civil defense worker, as well as state correctional and local corrections officers.
Under the Emergency Rules promulgated on March 18, 2020, a "first response employee" is automatically presumed to have suffered a compensable Personal Injury arising out of and in the course of their employment if that employee meets ONE of the following criteria:
• The employee is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure;
• The employee receives a COVID-19 diagnosis from a physician;
• The employee receives a presumptive positive COVID-19 test; OR
• The employee receives a laboratory confirmed COVID-19 diagnosis.
The Emergency Rules, at that time, did not differentiate between occupational and non-occupational COVID-19 exposure. Thus, all "first response employees" who met one of the above criteria would have been able to successfully establish a compensable work-related Personal Injury arising out of and in the course of their employment, regardless of any epidemiological source information which may suggest a non-occupational exposure.
The March 30, 2020 amendment to this Emergency Rules, however, changed the causation analysis to one more akin to a rebuttable presumption analysis. Although compensability is still presumed for “first response employees,” the employer/carrier is able to rebut this presumption with proof that leads a “denial based on specific facts demonstrating that the first response employee was not exposed to COVID-19 at work.”
On March 24, 2020, Governor Whitmer enacted Executive Order No. 2020-21, which required all Michigan residents to remain at home or at their place of residence through April 13, 2020. The Governor's "Stay Home, Stay Safe" Order specifically excluded any individuals whose work has been deemed necessary to sustain/protect life or to conduct minimum business operations. However, all other residents have been prohibited from engaging in employment activities outside of the home while the Order remains in effect.
Although the "Stay Home, Stay Safe" Order does allow a Michigan resident to leave his/her home for regularly scheduled medical appointments, we believe that it would be reasonable for a workers' compensation claimant to cancel/postpone/reschedule a pending medical appointment, given the current quarantine situation and the social distancing guidelines/recommendations from the Centers for Disease Control. We do not recommend utilizing this situation as a basis to dispute ongoing medical or wage loss benefits. We would also suggest the postponement and rescheduling of any currently pending independent medical evaluations.
Many of our clients have inquired regarding the question of wage loss benefits for claimants who were previously being accommodated in a favored work position with light duty restrictions and are now unable to work due to COVID-19 closures. Pursuant to Section 301(9)(e) of the Michigan Workers' Disability Compensation Act, if an individual has been employed in a favored capacity for fewer than 100 weeks and loses his/her job through no fault of his/her own, that individual is entitled to a resumption of workers' compensation benefits based upon the wages established at the time of the alleged work injury. Thus, we recommend that employers/carriers resume payment of wage loss compensation during any period when the employer is unable to accommodate light duty restrictions as a result of issues related to COVID-19.
Michigan employers should prepare for an influx of workers' compensation claims related to the COVID-19 pandemic. The attorneys at Charfoos Reiter Hébert, P.C. remain available at any time to consult regarding any questions or concerns that employers or carriers may have as to this rapidly evolving situation.