In North Carolina, most COVID-19-related workers' compensation cases are rightfully being denied. The thought initially with COVID-19 claims, and still to a degree with the Delta variant, was that while a claimant will have a difficult time establishing a compensable claim, there are several occupations (i.e., health care workers, first responders, etc.) that could have some compensable situations. However, with the spread and infection rate of the Omicron variant, there is an argument to be made that no COVID-19 claims are compensable at this time and that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.
For COVID-19 workers' compensation claims in North Carolina, a claimant has the burden of proving: (1) That they were at an increased risk of contracting the virus when compared to members of the general public; and (2) a causal connection between their specific infection and their employment. In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant's employment must have placed them at an increased risk of contracting COVID-19.
We are close to two years since the beginning of the pandemic and there still has not been a filed decision from the North Carolina Industrial Commission on the compensability of a COVID-19 claim. This speaks to how the COVID-19 claims are being handled in North Carolina.
Based on recent numbers from the North Carolina Industrial Commission, there have been approximately 5,364 COVID-19 claims filed with either a Form 18 or Form 19. Of those, approximately 40% have no response to the filed Form 19. Of the remaining 3,252 claims that do have some type of a response, it appears that approximately 65% of them were denied with a Form 61; approximately 13% were accepted on a Form 60; and approximately 21% were paid pursuant to a Form 63, without prejudice. In comparison to prior pandemic figures, it appears that the Form 61 denial rate has increased slightly.
Looking ahead, the denial rate likely will increase as additional Omicron variant claims are filed. Simply put, as the transmissibility of the COVID-19 variants increases, there is less of an increased risk in most employment settings, except for limited situations. Compared to the start of the pandemic, contact tracing has become impossible as individuals are more active, and masks have become optional throughout the State of North Carolina. For these reasons, we contend that COVID-19 should now be considered an ordinary disease to which the public is generally exposed and argue that almost no COVID-19 claims are compensable at this time.
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