WC Regulators Address the State of the Industry, Challenges and Insights During Virtual Town Hall

Nancy Grover

Sarasota, FL (WorkersCompensation.com) – The move to virtual workers’ compensation proceedings has been relatively smooth, despite some hiccups along the way. That’s the general consensus of state workers’ compensation regulators. Many of them also believe telemedicine will become a more widespread, permanent aspect of the workers’ compensation system, at least in some form. And they generally take a dim view of presumption laws passed in several states to ensure certain workers are more likely to receive benefits for contracting COVID-19.

Regulators for more than half the jurisdictions shared their insights and challenges about all things COVID during the National Workers’ Compensation Regulators’ Virtual Town Hall yesterday. The unprecedented event, produced by the Southern Association of Workers’ Compensation Administrators and hosted by WorkersCompensation.com’s Center for Education Excellence will be aired during a public webinar today at 1:00 EDT. Many of the regulators or their representatives will be on hand to respond live via a separate chat room.

Home Rule

“Getting my people out of the buildings was the biggest challenge initially,” said Paul Tauriello, director of the Colorado Division of Workers’ Compensation. “Our staff has a lot of risk managers who take pride in planning and preparing for eventualities for things like this, but it was hard to work with our stakeholders and policyholders as fast as we needed.”

While three of the six floors of the building the Division occupies were evacuated, some due to confirmed cases of the virus, it took roughly three weeks to get things situated to the point where the staff could work remotely. Overall, it has been a success. “We have a few gaps, we’re not in the field checking for insurance compliance, and a few other things, but otherwise we’re getting the job done,” Tauriello said.

Other regulators expressed the same sentiment; that getting to the point of being able to work remotely and handling workers’ compensation business through virtual and/or telephonic means has kept things running fairly well.

Some states had unique challenges early on in the pandemic. Virginia, for example, was forced to shut down its operations when an employee tested positive for the virus.

“I never thought in my career thought I’d have to, but we shut down the building for 14 days and all worked from home… It actually did stop our ability to process opinions, so we were sort of shut down” said Wes Marshall, commissioner of the Virginia Workers’ Compensation Commission. “As of [Tuesday] we are back in business.” Marshal expects most aspects of the system to be working normally by close of business today.

Several regulators expressed that plans for an ultimate move to at least a partial remote workforce were fast tracked into a few weeks. Wisconsin Workers’ Compensation Division Administrator Steve Peters, for example, said until the pandemic, “it was always put off until the future.”

Several regulators said that while most of the work can be done remotely, there are some tasks that must be done in office.

“A few staff come in on a rotating basis,” Said Cassie Brown, commissioner of the Texas Department of Insurance/Division of Workers’ Compensation. “Otherwise, we work from home. I think everything’s going well for us. We are holding hearings via teleconference and as of Monday through Zoom for hearings and proceedings.”

Louisiana is also doing a staff rotation from working remotely to being in the office. Different units have been able to work one day per week. “Although we are closed to the public, we’ve still been able to get the work out,” said Sheral C. Kellar, assistant secretary of the Louisiana Office of Workers’ Compensation.

Louisiana was perhaps better prepared to work during the pandemic than most other states.

“We’ve had a lot of disaster practice in the past,” kellar said. For example, with Hurricane Katrina and Hurricane Rita, we put things in place that have been helpful to us with this. We are all working remotely but have been able to process settlements. We’ve also been able to continue rendering decisions on requests for medical treatment. Our medical director is working from home and it’s all paperless … it’s the disasters we’ve had in the past that have helped us continue operating during this pandemic.”

Virtual Reality

Working virtually, whether through teleconferences, Zoom meetings and proceedings or telephonically has worked out as well or better than some regulators had expected.

“We thought a big issue would be the section that assists injured workers through the process. We typically do that in person,” said Ron Dressler Workers’ Compensation director of the Utah Labor Commission, Industrial Accidents Division. “We found doing things remotely, through Zoom, Google Hangouts, or by phone, ended up making things a little more efficient. It seems to keep the questions and issues focused on what their needs are. So our claims assistance program seemed easier.” However there have been some hurdles in terms of non-compliance with employers.

In Tennessee, workers have been increasingly working from home. The mediation system has been running for the last year with more of the work done by home-based employees.

“While I wasn’t very excited about that, it’s been a Godsend,” said Abbie Hudgens, administrator of the Tennessee Bureau of Workers’ Compensation. “A year ago we did a revamp of software for the court, so all parties can see all documents. So there’s no requirement for anyone to be in the office. It’s gone very well.”

The shift to a virtual environment is also working out well overall in Georgia. “We’ve heard three cases on appeal using the Zoom platform … it’s gone extremely well,” said Frank McKay, chairman & chief Appellate Judge for the Georgia State Board of Workers’ Compensation. “We’ve had a few more challenges in the Hearing division. But the feedback from the three appeals was terrific. It allows us to move cases along.”

An issue in Georgia, however, is that “some of us judges are not as technically savvy as others…” said Melodie Belcher, administrative law judge for the Board. “In the meantime, we are doing mediations by Zoom and telephone. As long as attorneys and clients want to go forward, we are doing it. On the hearings, it’s all voluntary. If parties don’t want to do it by Zoom we are not requiring it.”

Presumptions

With several states adopting laws that presume certain workers who test positive contracted the virus at work, the regulators were in general agreement that it could create problems.

“I have a lot of concerns about taking presumption and how that could open the door in the future,” said Vickie Kennedy, assistant director for the Washington Department of Labor & Industries Insurance Services Administration.

“I think yes it can open the door potentially for future presumptions of this regard because the argument will be how are we going to rate the impact of different kinds of viruses in the future.,” said Utah’s Dressler.

But don’t expect to see presumption laws in every state. Claims for COVID-19 are already being paid, even in states that have not enacted presumption laws. The regulators say existing laws are sufficient to handle the issue.

“We have an occupational disease statute that’s very onerous. Our answer has been, this is very similar to any other workers’ compensation case. Right now, the burden of proof is on the employee,” said Georgia’s McKay. “Our position is, for those front line workers … it’s a fairly easy burden of proof. You can show we’re working with patients with COVID and then they come down with it. That’s a pretty easy burden to meet. It gets harder in the delivery chain and supply chain, [where] people are exposed inside and outside of work. It’s still a burden of proof issue that I think we can handle under our current model of law.”

“My answer is if the system is working as it should there’s no reason for presumption,” said Abbie Hudgens, administrator of the Tennessee Bureau of Workers’ Compensation. “We have a workers’ compensation law, [that says] you must show it arose out of and was in the course and scope of employment. In Tennessee we’re a fairly conservative state so there is not a big push for presumption.

On the issue of presumptions laws, the chairman of the Mississippi Workers’ Compensation Commission offered some advice to his fellow regulators. “As a former legislator …it’s incredibly important to reach out to them,” said Mark Formby. “Most of them right now are not researching workers’ compensation issues. They are looking at budgets and economies. So it’s important that you reach out and begin to put this on their radar screen … otherwise, you’ll get a knee jerk reaction. Everybody wants to do something.”

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