Previously, we’ve touched on the types of workers’ compensation cases that have already or will arise because of COVID-19. These include COVID-19 diagnoses, injuries because of poor ergonomic at-home workstations, and mental stress claims for first responders. Just as any other workers’ compensation claim, however, if the insurer denies coverage, the case will enter the same workers’ compensation system as other cases. First a mediation occurs, and then if no resolution is reached at mediation, the parties are scheduled for a hearing before an Administrative Law Judge. The Workers’ Compensation Board experiences the same administrative delays as other court systems, so even before COVID-19, it was not uncommon to wait several months for a hearing to be scheduled. No special treatment or “fast-track” option has been created to address COVID-19 cases any faster than other workers’ compensation cases.
Another hidden COVID-related issue is the change in how the Workers’ Compensation Board is conducting fact-finding. Unfortunately, like many other offices in Maine, the Workers’ Compensation Board offices have been closed to the public for several months to protect the health of its employees. Hearings and mediations are no longer conducted in-person and instead, are either conducted telephonically or using video conferencing mechanisms. In-person hearings are not likely to occur for several more months. Even when those are conducted in-person, it is hard to imagine a situation where witnesses and other parties are not wearing masks during a hearing. From my perspective, as an attorney who represents employees, the hearing is usually a great opportunity for the Administrative Law Judge to judge my client’s credibility and in many cases, assess how “employable” they are. That becomes much more difficult, if not impossible, to accomplish if my client is wearing a mask. Over the past few months with mask-wearing becoming more and more commonplace – if not required – we now seem to realize how much we communicate with more than just words, but also facial expressions and intonation. For example, I’ve often caught myself telling people that “I’m smiling” as I speak with them because my mask hides my expression.
In cases where a client is not receiving benefits, the difficult choice must be made to whether to ask for a continuance to allow for an in-person hearing thereby further delaying the process, or proceeding with a telephonic or video hearing and accounting for a less than personable experience. It is certainly a decision that none of us anticipated, but it appears to be a new reality that we will be grappling with for the foreseeable future.