Although there are some states (and unfortunately Oregon is not one of them) that have enacted a presumption for Covid-19, most states have not.  These cases are being fought (I know that’s a big surprise) by employers and insurers with workers paying the ultimate price.

Although as a society we would be saving tremendous amounts of money if we could avoid the litigation expenses surrounding fighting Covid-19 cases, and if we could avoid the adverse health outcomes of leaving the conditions untreated, employers are fighting presumptions tooth and nail and fighting these claims tooth and nail.

Here in Oregon, employers have absolutely refused to negotiate any kind of reasonable presumption.  In the health industry, one employer has a 90% denial rate for nurses and other first responders.  On the surface, that is, of course, ridiculous.

There are, however, four possible outcomes when a claim is filed.  First, the claim may be denied and the worker takes no action, allowing the denial to become final.  Second, the worker may request a hearing and settle the claim on a compromised basis and the employer saves whatever the difference is between the compromise and full payment.  Third, the worker may request a hearing and try the case and lose.  If they lose, the worker gets nothing and the employer saves the medical costs but does have to pay litigation expenses.  Finally, the worker may request a hearing, take the matter to hearing and prevail in which case the employer has spent litigation costs and they have to pay medical and disability costs.

As we watch teachers being forced to return to work in person, we know that for teachers and older, classified staff the risks are potentially huge in that they not only get sick but they could end up with a horrible outcome, including the potential of dying.

Workers’ compensation was meant as a replacement for the traditional tort litigation system, but it also acts to encourage employers to make certain (as much as possible) that the workplace is safe.  A Covid presumption would greatly enhance the safe workplace, which would result in a better outcome for employees of the school districts but also for students and parents who are accessing the benefit of sending kids to school.

Oregon continues to lag behind some other states which have found a way to get a presumption that Covid-19 is work related.  Quite frankly I have serious doubts that some work situations are safe for people to return to work, but if they do return to work they are risking everything including losing their lives.

Here is a link to a 28-year old third grade teacher in South Carolina who was at school for a week, then diagnosed with Covid-19, then died.

I used to listen to Senator Grattan Kerans speak about doing dangerous work.  He quoted a union activist (whose name I cannot remember) who used to say “We go to work to earn a living, we don’t go to work to die.”  Unfortunately, employers think we do go to work to risk dying and that is simply inappropriate.

Covid-19 Workers’ Comp Claims Are Being Held Up or Denied

Employers and insurance companies are insisting employees, even those directly exposed to the virus, can’t prove they got sick at work.

Bryce Covert, The Intercept
September 7 2020, 4:00 a.m.

Virginia Ligi started to feel really sick in the middle of her 16-hour shift in April as a corrections officer in Hartford, Connecticut. A week before, she had called her doctor because she was having trouble tasting and smelling, but he told her not to worry. Then she started to feel lightheaded and dizzy and had a hard time breathing. Her doctor sent her to get a nasal swab test for Covid-19 the same day, which came back positive. She spent the next three weeks in bed with vertigo, shortness of breath, muscle aches, migraine headaches, and vomiting. She struggled to keep her eyes open. “It was like nothing I’ve ever experienced in my life,” she said. “It was all day every day, all day long.”

Ligi is certain she got Covid-19 from her work. “In our job, to be honest with you, social distancing is nearly impossible,” she said. She works on a housing floor with up to 100 inmates, plus her fellow officers. “That six-foot rule is really not applicable in prison.” It’s impossible to open windows for better ventilation. The facility couldn’t secure enough cleaning supplies at first. On top of that, there was a shortage of masks, so instead of adequately protective N95 masks, she was given one surgical mask to last until whenever the next shipment arrived. Covid-19 cases had already started to crop up in the facility before she got sick. Plus, she doesn’t know where else she could have gotten it; nearly everything was shut down at that point.

“We were forced to go to work because we had to,” she said. “We had to go in harm’s way.”

In return for shouldering that risk, she assumed that she would be repaid. She filed a claim with her state workers’ compensation system, expecting that it would cover some of her pay for the time she was out from work and the medical care she received.

But she still hasn’t gotten any benefits. “I didn’t even get so much as a denial letter,” she said. “I got zero contact.”

Ligi is one of countless front-line workers across the country who contracted Covid-19 at work but are having their workers’ comp claims held up or outright denied. Employers and insurance companies are instead insisting that employees, even those directly exposed to the virus, can’t prove that they got sick at work and claiming that they were infected outside the workplace.

In Massachusetts, for example, out of 5,030 reports of first injury — the first step in a workers’ comp claim — 734 have been denied and 69 are in dispute, according to state government data shared with The Intercept by the Massachusetts Coalition for Occupational Safety and Health. In California, workers have made over 30,000 workers’ comp claims, nearly a quarter of which have already been denied. Out of 3,807 claims in Florida, 1,695 had been denied as of the end of May. Many of the denials have been in front-line occupations. Over 370 in Massachusetts were in health care, as were 521 in Florida. Another 780 were denied to protective services, including first responders, in Florida.

“Before the pandemic, workers’ comp was in many ways a failed system,” noted Debbie Berkowitz, worker health and safety program director at the National Employment Law Project. But Covid-19 “exposes the weakness of workers’ safety rights.”

Workers’ compensation was set up over a century ago as a grand bargain between employers and employees. Employees gave up their right to sue their employers over injuries and illnesses sustained on the job, even if they were caused by negligence. In return, workers were supposed to get speedy financial relief. Workers are meant to be able to file a claim and get timely replacement pay and medical coverage. If they end up permanently disabled, there are ongoing benefits. If they die, their families are due a survivors’ benefit.

But states have steadily reneged on that deal, pushed along by business interests and the insurance companies that offer workers’ comp coverage. Between 2003 and 2014, 33 states reduced benefits or made it more difficult to qualify. Some states have increased the criteria for coverage such that some claims are no longer covered; others exclude some illnesses and conditions altogether. In 2007, workers’ comp was estimated to cover less than a third of workers’ lost earnings and medical costs. Courts have ruled that benefits are so low and difficult to obtain in Alabama and Florida as to be unconstitutional. Even states that used to be leaders have backtracked: New York was the first state to adopt workers’ comp, and yet has steadily changed its system over the last 20 years to be less and less generous.

Many employers routinely deny workers’ comp claims in an attempt to duck liability, but most workers don’t know they can push back on the denials. “Workers, a lot of the time, still have to basically pursue a legal challenge in order to get decent benefits,” noted James Parrott, senior director of economic and fiscal policies at the Center for New York City Affairs.

Few workers even bother filing claims these days; in one study from 2009, just 8 percent of those with a serious job-related injury did so. Once they do, employers and insurers are only covering around 20 percent of the cost of their lost wages and medical bills or, for a worker who dies, the lost income for their family. “A work-related injury can really push a worker right out of the middle class,” Berkowitz said.

“It’s an abomination,” Parrott said. It’s an example of “how corporate power over the years has steadily accumulated, and corporations have changed systems to their liking.”

The structure is even less sturdy when it comes to illnesses. “Workers’ comp [is] better if the injury actually happened right there on the job and everybody saw it,” Berkowitz noted. But for diseases that are less visible, that take longer to become apparent, it’s harder to prove they happened at work. Berkowitz pointed out that Congress had to pass specific legislation to give miners relief from black lung, even though “you don’t really get black lung from anything else.”

And while workers’ comp typically covers some occupational illnesses like tuberculosis contracted in hospitals, it doesn’t cover others like the flu. “There was no sense of certainty that [Covid] would be covered to begin with,” noted Sal Luciano, president of the Connecticut AFL-CIO.

At least 19 states have taken some kind of action to create a presumption in their workers’ comp systems that workers contracted Covid-19 through their employment, according to a tally compiled by the Connecticut AFL-CIO. A presumption should pave a much smoother path to get coronavirus-related claims approved. But the actions vary. Michigan’s governor extended a presumption only to “first response employees,” who are defined as health care workers and police officers. Kentucky’s governor, on the other hand, signed an executive order in early April that covers a huge swath of the workforce, including child care providers, grocery store employees, social service providers, and others.

Ligi was lucky to get two weeks of paid leave through the state. But she had to use a week of her own paid leave after that as she recovered. She ended up returning to work before she was actually ready because she didn’t want to use up any more of her benefits; she needed to preserve her time off in case one of her family members got sick and she had to care for them. Plus, hers was also the only source of income; her husband owns a restaurant, but it closed down for three months.

But it took her state a long time to act to ensure that workers like her could get back pay and medical coverage through the workers’ comp system, leaving her in the lurch for months. Gov. Ned Lamont finally signed an executive order on July 24 creating a presumption for Covid-19 workers’ comp claims. The order applies to all essential workers; it also designates Covid-19 as an occupational illness, which should bolster all workers’ cases.

After Lamont signed the executive order, “I felt like a huge weight had been lifted off of my shoulders,” Ligi said. It doesn’t necessarily secure her benefits; her case is still being reviewed.

Lamont’s executive order also has an expiration date: It only covers Covid-19 contracted at work up until May 20. Yet Luciano pointed out that there are essential workers still going to their jobs without proper protection. A July survey of nurses across the country found only 24 percent felt they were working in a safe environment with the proper protective equipment. Bus drivers, Luciano said, are given one mask per week. His union is hoping that the legislature will extend the presumption in its upcoming special session.
Members of the National Nurses United observe a moment of silence for the 88 nurses they say have died from COVID-19 while demonstrating in Lafayette Park across from the White House May 07, 2020 in Washington, DC.

In the states that haven’t taken any action, however, workers enter a system designed to work against them, and insurance companies are making every effort to wiggle out of responsibility for workers’ comp claims.

Out of 60 coronavirus-related cases workers’ compensation lawyer Mary Ellen O’Connor has taken on in New York, a state that hasn’t enacted a presumption, just two have been accepted; the rest are being challenged. In one involving a first responder, the insurance company looked up what school the worker’s children attended and tried to claim that because the district had one case of Covid-19, the worker can’t prove they got it at work — even though the child didn’t attend that school, and the worker got Covid-19 three weeks after schools shut down.

“They are seeking to point blame anywhere other than the work environment,” O’Connor said. “They probably will spend more money paying defense attorneys to defend files than the cost [of paying benefits] itself.”

But an even larger problem, O’Connor said, is that the majority of her cases — somewhere between 65 and 70 percent — haven’t gotten a response from the insurance company at all, leaving workers in a state of purgatory in which they can’t get repaid for the time off they took or the medical care they needed. A number of O’Connor’s clients have gone back to work and can’t take time off for lingering Covid-19 treatment or to care for their children because they burned through all of their benefits already. Others aren’t working and are languishing without pay or medical care. A presumption, then, wouldn’t just make these cases easier to win. It would speed them up because insurance companies wouldn’t have the chance to challenge them.
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The Massachusetts AFL-CIO is pushing the state legislature to pass the many bills it’s considering to create a Covid-19 presumption for the workers’ comp system — just as other presumptions exist for other diseases. “It’s not a radical concept,” Chrissy Lynch, chief of staff at the union, said. She’s hopeful something will pass. “They’re talking about occupational presumption now in a way I don’t think it has ever been talked about before,” she said.

Advocates in New York aren’t just pushing for a Covid-19 presumption to deal with the current crisis, but for the legislature to make more sweeping reforms to the system so it responds better in normal times: providing a hearing for every case, making it easier to get permanent disability benefits, and other reforms.

“There’s fundamental changes needed,” said William Crossett, co-chair of the New York Workers’ Compensation Alliance. Even if the legislature enacts a presumption, “We’re still going to have to litigate these cases.” And that process currently works against the workers’ favor, he said.

The federal government could, conceivably, do something to fix this system. In the 1970s, Congress created a commission to study workers’ comp, unanimously concluding that state laws were “inadequate and inequitable” and advising Congress to make a number of changes. Then in 2016, the Department of Labor issued a report on the system’s failings and suggested a federal commission to create standards for states’ programs. That work, however, came to a halt when Donald Trump took office.

For some people, the lasting effects of coronavirus make it a long-term issue. Caitlin Fournier got sick with Covid-19 in March after exposure to infected co-workers at the psychiatric hospital where she works in Holyoke, Massachusetts. She’s confident she contracted Covid-19 at work. “I was so terrified of being the person that kills my unit of patients,” she said, since she works primarily with the elderly. She got her groceries delivered, kept her daughter home from school, and created a “sanitation station” at the entrance to her house. “I was being so cautious in my life that I don’t know how I would have gotten it anywhere else.”

She was out for two weeks, barely able to get off her couch, and then was called back to work at the end of April. Two hours into her first shift, she was hyperventilating and her oxygen levels were dangerously low. She hasn’t worked since. “I can’t walk more than 20 feet without my oxygen level dropping below 90,” she said. It’s so bad that she recently had to cancel her plans to accompany her daughter to her socially distant dance recital because she didn’t think she could handle all the walking and standing. It was the first time she missed seeing her daughter dance on stage.

Fournier counts herself lucky. First, she survived Covid-19. And second, her workers’ comp case was approved for the weeks she was out. But she was supposed to go back to work on light duty at the end of June, then was instead told if she couldn’t go back to her regular duties, she couldn’t come back at all. Her employment terminated, Fournier is now fighting to get ongoing benefits. She’s receiving unemployment, but she worries what will happen when it runs out if she can’t find a job or, worse, can’t physically return to work. “It almost seems like I have to keep proving that I am not faking and I actually can’t breathe,” she said.

Covid-19 is proving for many to have ongoing, debilitating consequences. About 20 percent of O’Connor’s clients are still experiencing long-term problems. A first responder has blood clots in his stomach and can’t return to his job until the condition improves. Another has breathing problems that are keeping him from working. The Centers for Disease Control and Prevention recently found that about a third of people who contracted Covid-19 had not fully recovered two to three weeks later. The workers’ comp system will continue to be called upon to replace wages and cover medical care if people have ongoing complications.

“A lot of people are going to find that they’re going to have problems down the road that they didn’t anticipate,” Crossett said. “We’re going to be working on these cases for a long time, just like we’re working on 9/11 cases.”


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