Maine Workers' Comp Alert: Areas of Consideration Due to COVID-19

This alert addresses certain areas of concern with respect to the COVID-19 pandemic and Maine Workers’ Compensation. This alert touches upon new issues to consider, issues of concern for existing claims, and general concerns in the context of settlement and valuation of claims.

The Statistics to Date

• As of the week of April 10, the Maine Workers’ Compensation Board reported that there have been 264 COVID-19-related cases reported, broken down as follows:
  • 208 lost time
  • 21 medical-only
  • 35 incident-only claims.

Issues of Concern For New Claims

• If an employee develops COVID-19, this may prompt a formal claim under Maine’s Workers’ Compensation Act (the “Act”).
• Coverage under the Act is limited to injuries or occupational diseases that “arise out of and in the course of employment.” 39-A M.R.S.A. § 201(1).
• Most employees are likely to allege traditional workers’ compensation claims in the context of COVID-19 (rather than occupational disease claims).
• An injury is not compensable if the employee was at no greater risk than the general public. The employee bears the burden of proof. When analyzing whether an injury arose out of and in the course of employment, injuries that are “a consequence of life in general” must be separated from injuries that are a “consequence of industrial activity” with only the latter being compensable. An injury arises out of and in the course of employment, “when there is a sufficient connection between the injury and the employment.”
• Key questions: (i) was the development of the disease likely caused by the work environment?; and (ii) is it possible to know where an employee may have been exposed?
• As with other injuries, an employee must meet his or her burden to prove that the employee acquired COVID-19 from some risk specific to employment, beyond that which the general public is exposed to.
• Certain professions/work environments may be more directly linked with transmission of COVID-19. This must be reviewed depending upon the facts. Also, if COVID-19 becomes more widespread, it may be more difficult for an employee to prove a condition is work-related rather than an ordinary injury/disease of life to which the general public is exposed.
• Fewer workers may make workers' compensation claims during stay-at-home orders, with less people working. On the other hand, there may be significant increases in claims associated with remote work.

Issues of Concern for Existing Claims

• With increased job losses and layoffs there may be more claims for increased incapacity.
• Because of extensive changes in the workplace, and the number of individuals out of work, identifying light-duty and modified work with existing employers may become more difficult.
• There may be additional delays in litigation, scheduling of hearings, mediations, and settlement hearings. The system is attempting to adapt with phone mediations and remote hearings, but the State independent medical examination process has been stayed.
• There may be delays in medical treatment for individuals with worker's compensation injuries. Injured workers might delay in-person medical treatment because of stay-in-place directives. Remote treatment options are being developed but they may create their own issues.
• Economic loss claims may become more expensive. The labor market has deteriorated; it is uncertain when and how slowly the Maine labor market will recover.

Concerns and considerations with respect to resolution of claims

• There will likely be less certainty in the context of settlement. Some employees may desire to have money at the current time, even if it reduces the value of a long-term claim. Employers and insurers may wish to settle based on current exposure projections. The value of settlement may be more expensive. The discount rate is changing. Earning valuations have generally decreased and will likely remain decreased until there is a recovery from this anticipated recession. This will likely make it more difficult to discount the value of a claim based upon an employee’s assumed earning capacity.

Looking forward

There are several considerations to keep in mind when dealing with COVID-19-related workers’ compensation claims. There are also many considerations for existing claims affected by this pandemic. We will continue to monitor the situation. Stay tuned for further updates on this evolving subject matter.