04/13/2020
On Thursday, April 9, 2020, in response to the COVID-19 pandemic, Kentucky Governor Andy Beshear signed an Emergency Order affecting payment of TTD benefits in Kentucky workers compensation claims related to COVID-19 exposure. A complete copy of the order is attached. The order provides as follows:
1) "An employee removed from work by a physician due to occupational exposure to COVID-19 shall be entitled to temporary total disability payments pursuant KRS 342.730(1)(a) during the period of removal even if the employer ultimately denies liability for the claim." The order goes on to specify that, for the exposure to be considered an "occupational” exposure, “there must be a causal connection between the conditions under which the work is performed and COVID-19, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment.”
2) The usual TTD waiting period in KRS 342.040(1) is suspended in relation to TTD payments being made pursuant to the Emergency Order. TTD benefits payable pursuant to the Emergency Order "shall be payable from the first day the employee is removed from work".
3) Kentucky's definition of injury indicates, generally, that communicable diseases are not compensable "unless the risk of contracting the disease is increased by the nature of the employment". It has been assumed that doctors, nurses and other medical personnel would certainly fall into the category of increased risk. Under the Emergency Order "it shall be presumed that removal of the following workers from work by a physician is due to occupational exposure to COVID-19”:
- employees of a healthcare entity;
- first responders (law enforcement, emergency medical services, fire departments);
- corrections officers;
- military;
- activated National Guard;
- domestic violence shelter workers;
- child advocacy workers;
- r**e crisis center staff;
- Department for Community Based Services workers;
- grocery workers;
- Postal Service workers;
- childcare workers permitted by the Cabinet for Health and Family Services to provide childcare in a limited duration center during the State of Emergency
4) The Emergency Order applies to all insurance carriers writing workers compensation coverage in Kentucky, as well as self-insured groups and authorized self-insured employers.
5) Payment of TTD benefits under this order "does not waive the employer's right to contest its liability for the claim or other benefits to be provided."
Obviously, the Governor has determined that individuals in the identified high risk groups, who are ordered by a physician to remain off work due to COVID-19 exposure should immediately begin receiving TTD benefits, regardless of whether the employee has a specific statement from a medical provider establishing causation to a work-related exposure. Please note that the individual does, however, need to be off work under a physician's order. Certainly, a great many questions will arise concerning implementation of the Executive Order. Bear in mind, though, that the intent of the Order is to provide immediate payment of TTD benefits to individuals in the identified high risk groups, with other issues to be dealt with at a later date. This undoubtedly raises the possibility of payment of benefits in cases that later are deemed to be non-compensable. Nevertheless, that is the directive of the Governor. We feel confident that, when the COVID-19 crisis has passed, "normal" application of the law regarding TTD payments will resume.
Lastly, and most importantly, please understand that the TTD payments required under the Executive Order apply ONLY to individuals in the identified high risk groups. The usual TTD payment rules continue to apply to all other workers.
