[fusion_dropcap boxed=”no” boxed_radius=”” class=”” id=”” color=”” text_color=””]S[/fusion_dropcap]everal years ago, I was invited to join the Workplace Injury Litigation Group (WILG).
This is a national organization of attorneys who represent injured workers.
WILG has taken the position that people who are working and come down with Covid-
19 should be entitled to those benefits if there is any reasonable nexus between their
employment and the disease. This would mean first responders, people working in the
medical industry, and workers who are going to have to continue to work even if everybody
else is forced to stay at home (grocery workers, some food service people).
I would normally simply give you a link to this statement, but it is difficult to get to that
link, so I have copied the statement below. Before getting to that, however, I will say that the
likelihood of such a law passing in Oregon seems remote and that, as a general rule, being
able to establish that a disease, such as Covid-19, is related to work is very difficult because you are certainly able to acquire the disease elsewhere. It is almost impossible for the injured worker to show that simply because work is the most likely place, they acquired it, that it is in fact the place where it was acquired which is what is necessary under Oregon law. A change in the law would make good sense but it seems unlikely to happen. Certainly, I will let you know if we make any efforts to alter the law to accomplish this.
“Insurance companies have been making tremendous profits, so it stands to reason that they
should accept coronavirus claims during this crisis if any nexus at all can be shown between
contracting the virus and employment,” said William Smith, president of the Workers’ Injury Law
and Advocacy Group, or WILG.
WILG, with 1,100 claimants’ attorneys around the country, is known for speaking out for injured
workers, and its members have filed constitutional challenges to laws that have reduced benefits in
a number of states. Smith said this week that with state differences in occupational disease
compensability requirements, and with millions of workers now out of work, insurers should “step
up” and not fight most coronavirus comp claims.
At the very least, Smith said, municipalities and their insurance pools should grant first responders
indemnity benefits or paid time off if they must be quarantined because of exposure to coronavirus
patients.
WILG is not alone in its call for leniency during the outbreak that has caused more than 10,000
people in the U.S. to fall ill and many to lose their jobs and stay at home.
Kentucky Employers’ Mutual Insurance, the largest comp insurer in the state, announced it will
provide indemnity benefits for safety and medical personnel who are quarantined.
And in Washington State, the government-run workers’ compensation program also said it would
extend benefits to quarantined health workers and other first responders.
In California, the International Alliance of Theatrical Stage Employees, or IATSE, called for
measures that would provide continued workers’ compensation and other benefits for workers
whose jobs have disappeared as theater, film and TV productions have ground to a halt, according
to news reports. The California insurance commissioner on Wednesday also asked insurers to give
policyholders a 60-day grace period on premium payments during the crisis.
Insurance groups and carriers declined to comment on leniency or the idea of essentially
presuming that many COVID-19 cases are work-related.
“We’re not giving any interviews right now while we’re focused on our customers’ needs,” said
Matthew Sturdevant, spokesman for The Hartford, one of the nation’s largest workers’
compensation carriers.
It’s still a question mark about how many workers nationwide have been stricken by the virus or
how many comp claims may be filed because of it. A spokesperson for the National Council on
Compensation Insurance said it would be irresponsible for the council’s actuaries to try to estimate
how many claims could be filed or how much it will cost insurers and employers over the next year
or more.
A recent report from NCCI noted that 10 states have now mandated increased coverage by group
health plans for coronavirus testing and emergency room visits. If more states join in, that could
have the effect of limiting the number of workers’ compensation claims.
Some states have more generous occupational disease provisions than others. But in many, a
worker must prove he contracted the coronavirus through work and in the course and scope of
employment. That may be difficult with a virus the World Health Organization has declared is
pandemic, or spread worldwide.
“Some insurance companies, I suspect, would argue that you have the burden of proof to show
that you were not exposed to, and have not caught, the virus somewhere else, other than at your
job,” wrote Thomas Frederick Brown II, a claimants’ attorney in Suwanee, Georgia. “If that
insurance company or your employer takes that position, you will be in for a long fight, probably for
six months, until you can present your case to a judge.”
In Florida, claimants have the burden of proof to show by “clear and convincing evidence” that a
disease arose out of employment, according to statute and recent court rulings, explained David
Langham, deputy chief judge of the Florida Office of Judges of Compensation Claims, in an earlier
blog post.
In Pennsylvania, diseases associated with certain occupations, such as in asbestos-related
conditions, are essentially presumed to be work-related unless rebutted by the employer or insurer,
said attorney Stephen Potako in a recent article.
But COVID-19, the flu-like disease caused by the coronavirus, is not listed in state law as an
occupational disease. That means the claimant would have to clear some hurdles to establish
compensability and would have to show that the incidence for his occupation is higher than that of
the general population.
With coronavirus now sweeping the planet, and because the virus is so new, it may be nearly
impossible to show that the disease is more prevalent at work than elsewhere, Potako and his law
partners wrote.
“If non-work transmission possibilities cannot be ruled out, claimants will generally not be able to
establish the necessary causal relationship to make a successful workers’ compensation claim,”
they wrote. “This is why generally communicable diseases such as seasonal influenza are not
commonly presented as claims in the Pennsylvania workers’ compensation arena.”
For those in lines of work that are, in fact, more susceptible to the coronavirus disease, such as
health care workers, they and their employers are encouraged to maintain detailed records about
potential exposures, Los Angeles attorney Paul White noted this month.
Because of the challenges that sickened workers must face, and because of the special nature of
the coronavirus, WILG is asking insurers to take extraordinary measures toward accommodating
injured workers.
“Workers’ comp insurers are seeing record profits now,” WILG’s Smith said. “There’s no reason
they shouldn’t be able to do that.”
If insurance companies don’t readily accept large numbers of comp claims for the virus, the
COVID-19 crisis could actually improve the industry’s bottom line, if only marginally, said Robert
Hartwig, associate professor of finance at the University of South Carolina.
“The reason is that reduced economic activity will result in a reduction in claim frequency,” said
Hartwig, who researches workers’ compensation economics.
He said insurers and employers will likely see fewer motor vehicle accidents as workers travel less
on business, and fewer back strains from loading and unloading trucks, plus a slowdown in
manufacturing and construction — classifications that typically have high experience ratings.
On the other hand, it’s possible that written premium will drop as the economy slows and payrolls
are slashed across the land, the NCCI said.
An example of a virus claim that could go either way may be that of a worker who was asked to
travel for a business project or conference and was diagnosed with COVID-19 shortly thereafter.
There’s no proof that the virus came from the travel or the gathering. No regional fingerprint exists
on the virus that causes COVID-19.
But at a time in which the entire country has been asked to avoid crowds, insurance carriers would
do well to avoid unnecessary denials and litigation expenses, attorneys have said.
Another reason for leniency on claims is that with compensation agencies and hearings shut down
for weeks in most states, claims dispute adjudication may be backlogged for months to come,
delaying benefits to sickened workers who may have few other sources of income.
Congress this week voted to soften the blow a bit by requiring paid sick leave for workers hit by the
bug. But large companies — those with more than 500 employees — and small companies are
exempt. The bill signed by President Trump also provides $1 billion in food aid and extra
unemployment funding for those laid off, according to news reports, and further economic aid is
expected soon.
A number of state legislatures, including New York’s, have passed their own paid sick leave bills.
New York’s bill requires two weeks of paid sick time for companies with more than 100 workers,
and five days for smaller companies.
