At the start of the COVID-19 pandemic, I wrote this post about how to make a workers' compensation claim arising out of an exposure to COVID-19. Based on my experiences with other occupational diseases, I predicted that insurance carriers would likely be denying most COVID-19 exposure claims. Now, almost one year into the pandemic, we have several months' worth of data to help provide us with a better picture of how Texas workers are faring when they submit a COVID-19 claim.
The data in question come from the Workers' Compensation Research and Evaluation Group within the Texas Department of Insurance. You can read the full public report from the group here. Below, I will outline the points of interest in the data that are most useful for workers' compensation claimants and their attorneys.
First, the overall number of workers' compensation claims have increased. The research group found that the overall number of workers' compensation claims reported to the DWC between January and August 2020 was about 22% higher than the same period in 2019. This reflects a remarkable change in a 20-year trend in Texas, in which fewer and fewer claims have been reported each year.
At first glance, a sharp rise in the number of claims reported may seem odd, but I suspect the reason for the change is because already-existing (but unreported) claims started to be asserted due to general instability in the job market. All claims should be reported, but in a stable economy, employers and employees will often make "under the table" deals to not turn in the claims. I discourage injured employees from making bargains like this, because it can create a lot of problems for them down the road. Nonetheless, when layoffs and risks of layoffs loom, there is more pressure to put the claims on the books, where the employee can collect an income benefit.
Second, a relatively small number of employees have been making COVID-related claims. Between January 1 and September 27, carriers reported a total of 25,571 COVID-19 related claims. That number represents a small fraction of one percent of all Texas workers, so in the broader scheme of things, it isn't that many claims, especially considering that infection rates are much higher.
Third, the number of death claims is very low. As of September 27, a total of 103 fatality claims were reported to the DWC. This represents 4/10ths of one percent of the total COVID claims, which is well below the overall fatality rates for COVID-19. Likely, most workers who have been exposed to COVID are younger individuals who are less likely to suffer the more severe consequences of the disease. Additionally, it is possible that some claims were denied very early on in the progression of the disease, and that - after the employee died - the family and/or employer did not report the death to the carrier.
Fourth, many claimants don't have evidence of a positive test. Most claimants who are asserting COVID-19 claims do not have positive tests to prove that they have the disease. Of all of the workers who asserted COVID-19 claims between January and June, only 35% were actually able to prove that they have COVID at all. This may, unfortunately, be a product of the slow roll-out of testing availability, particularly in Texas. COVID denials also reflect a common dilemma for Texas workers, many of whom have no access to private care: you can't make a claim without proving you have the disease, and you can't get the medical evidence to prove the disease unless your claim is accepted, giving you access to care. I suspect there are a number of valid claims that were never accepted because of this catch-22.
Fifth, only 17% of all claims are accepted by carriers. This number is actually a little higher than I had anticipated. It would seem that some claimants, at least, are having success in demonstrating - through contact tracing - that their only possible exposure was at work.
What does all this mean for injured workers? Here are my five takeaways:
Don't hesitate to make a claim. While many claims are rejected, about 1 in 5 are accepted, and the ratio is even higher (almost 1 in 2) if you can prove a positive diagnosis.
Let your employer know that you have work-related COVID as soon as you suspect as much. Don't delay, waiting for a test or a doctor's visit. It is easy to wait too long to make a claim. Report first, then begin gathering your evidence. Additionally, as I frequently recommend, you should submit your report in writing (emails and text messages will work, if nothing else), explicitly stating that you believe you have a workplace exposure. It isn't enough to just report that you have COVID. You must indicate that it came from a workplace exposure. A written report will make it difficult for your employer to later deny that it was told you have a work-related exposure.
If you are going to make a COVID-19 claim, do everything you can to secure a test and diagnosis from a doctor. You won't even get in the door with your claim unless you have a positive test. Exhaust every resource possible to gain access to testing.
Be prepared to demonstrate - through contact tracing - that your only possible exposures for COVID are at work. This may mean securing statements from all of your close contacts outside of work that they have not received a positive diagnosis.
Be prepared for an initial denial of your claim. The odds are against you, even if you have taken all of the steps outlined above. You may have to pursue your claim by seeking a dispute resolution with the Division of Workers' Compensation. Retain a workers' compensation attorney, if you can find one who will take your case. This will substantially increase your chances of success.