I have received a few questions regarding COVID-19 claims that have been accepted as compensable as occupational disease claims, but no actual treatment is needed. By one report, 85% of those testing positive have little to no symptoms, and no treatment. Meaning the claimants don’t return to the doctor for MMI.
(The CDC recommendations do not require a claimant get a medical release to RTW, so there may be no option to obtain MMI: “Employers should not require a sick employee to provide a negative COVID-19 test result or healthcare provider’s note to return to work. Employees with COVID-19 who have stayed home can stop home isolation and return to work when they have met one of the sets of criteria found here (https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html)
The concern is regarding Statute of Limitation issues, in light of the Gauthier v. FIU case. In Gauthier, the claimant had an eye injury, resulting in surgery and a significant loss of vision. The claimant was instructed at the end of active treatment to return for annual visits. The E/C made two attempts to get MMI and the impairment rating from the eye doctor, but there was no other follow up. When the claimant tried to schedule a follow up 13 months later, the E/C denied the claim because the SOL had expired.
The 1st DCA disagreed, and found the E/C had knowledge of the claimant’s severe ocular injury. The employer is under a continuing obligation to furnish benefits when they know or reasonably should have known that such benefits are due. The court found the E/C abandoned their duty to get the impairment rating and pay impairment benefits. Therefore the SOL had not run. (Underlying this would be that the rating probably would have been in the 20% range, and had they confirmed and paid the impairment benefits, the SOL would not have expired.)
Since Gauthier, there has been a concerted effort to obtain MMI and impairment ratings so that there are no SOL issues down the line. Its always a struggle when the claimant won’t return for an appointment and the doctor won’t address MMI without seeing the claimant.
In general in the cases were MMI can’t be obtained, I typically recommend getting an IME, a peer review or at least an estimate from the NCM, and pay the impairment benefits, if any. That way at least there is a documented opinion. Or set an appointment or two for the claimant to return to the doctor for the rating, and if he no shows, file a DWC-4 suspending indemnity and IB’s for medical non-compliance.
However, in the COVID setting with no treatment at all, those strategies don’t necessarily work to allow the SOL to run. On the one hand, you could certainly make the argument that Gauthier doesn’t apply because there is no knowledge that impairment benefits are due because there was no treatment at all. Alternatively, you could schedule a follow up with a PCP for that purpose, and if the claimant no-showed, suspend indemnity benefits. Another possible option would be to issue a DWC-12 denial of all future care at that point. Also, possibly have it addressed by a peer review that there is no impairment, and file a DWC-4 in that regard.
New challenges call for creative solutions. I hope all of you are doing well and staying safe.
Morgan Indek | Managing Partner