Question:
I’m a registered nurse who almost died from COVID-19 respiratory failure. I work in a a nursing home where other employees have been infected with COVID-19 and where patients have died due to COVID-19. I filed a workers’ compensation claim.
My employer and their carrier are disputing the claim because I can’t prove I contracted COVID-19 at work. Here’s what I want to know—how is this not a workers’ comp claim? And who’s looking after first responders when we’re stricken with COVID?
Answer:
Attorney answers
According to attorney Charles Krugel, “COVID-19 workers’ comp cases have increased in quantity and will continue to do so. Every state has their own workers’ compensation laws. When an employee is injured due to working conditions, workers’ compensation generally covers it, every state has their own workers’ compensation laws and there isn’t much uniformity in how workers’ compensation is administered.”
“COVID-19 is so unique that the lack of uniformity means that most cases will have to be decided or litigated on an individual basis.” Krugel suggests that you find a licensed attorney and litigate the situation before the state’s workers compensation commission or in court. “If working conditions led to COVID-19 infection among multiple employees, then potentially a class action lawsuit can be filed, however, contact tracing in the workplace may need to be done to determine a common source of infection for multiple employees.”
“It’s unfortunate,” says attorney Jon Hyman, “that so many are left lost or broken because of this pandemic. For employees who are injured or become ill at work, their exclusive remedy may be with the state workers’ compensation system. The issue with COVID-19 is exponentially more complicated because of community and asymptomatic spread. It may be difficult if not impossible for an employee to establish that the exposure that sickened the employee occurred at work. Because workers’ compensation laws vary by state, we may need fifty different solutions to fix this hole in coverage, unless Congress steps in on a federal level to a special benefits fund for COVID-impacted first responders. There are no easy solutions to this problem and those first responders who are sick or dead from COVID-19 have been left largely without recourse.”
Insurance adjuster answers
According to Joanne Kell, an insurance adjuster with thirty years’ experience in workers’ compensation, workers’ compensation law “in some states favors the employee, with a presumption of compensability that applies once an employee files a report of injury. While each claim must be handled on a case-by-case basis, and sometimes the law is gray, in some states all it takes is one scintilla of evidence for it to be presumed that a reported injury happened as reported by the employee.”
Kell adds that while “there have been a few cases where it had been proven the employee filed a fraudulent claim, the employer generally must present substantial evidence to refute the employee’s claim.”
Finally, I hope we take care of you and other COVID first responders. We all owe you a great deal. We elected to take care of 9/11 first responders. You also marched straight into the unknown and danger.
SURVEY OF STATE WORKERS COMPENSATION COMPENSABILITY STATUTES
https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf
“The insurance and business communities are asking many questions about how COVID-19 will impact workers compensation. One that continues to be asked is whether workers compensation claims for COVID-19 are compensable. In most cases, the answer to this question will be determined on a case-by-case basis, under state law.”
2020 COVID-19 REGULATORY AND LEGISLATIVE ACTIVITY
https://www.ncci.com/Articles/Pages/II_Covid-19-RegLeg-Activity.pdf
2020 STATE ACTIVITY: COVID-19 WC COMPENSABILITY PRESUMPTIONS
https://www.ncci.com/Articles/Documents/II_Covid-19-Presumptions.pdf
Legislative Activity
https://www.ncci.com/Articles/Pages/II_LegislativeActivity.aspx
COVID-19: Workers’ Compensation
https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx#:~:text=States%20are%20taking%20action%20to,and%20covered%20under%20workers’%20compensation.
© 2020, Lynne Curry
Lynne Curry, Ph.D., SPHR, is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at Ask a Coach at www.workplacecoachblog.com or lynnewriter10@gmail.com or www.communicationworks.net or follower her on twitter @lynnecurry10.
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There are many nuances of Alaska workers’ compensation law making it complicated to answer specific questions about compensability in general , because each claim must be investigated and evaluated on a case by case basis. Handling COVID claims is even more muddled than other claims since the virus is so new and our knowledge of whether COVID is contracted at the work site is pretty fluid. Because these claims are new, there is not a precedent for handling COVID claims either at the Board level, the Appeals Commission or the Supreme Court.
What this means is that there may be differences in the way different adjusters and insurance claims offices interpret how thepresumption of compensability applies in COVID cases. Some carriers may look at the comparative risks of contacting COVID in the community vs. the workplace. Because of the nature of COVID, it may be hard to definitively determine that an employee who gets a Positive COVID test contacted COVID in the workplace or in the course and scope of employment. In the example of the RN working in a nursing home with patients and other employees who tested positive, it seems obvious that this was a work exposure and probably should be considered a compensable claim. Any denial of compensabililty can be appealed to the comp Board using the form noted on the contraversion (denial form) within certain time limits. An injured employee whose claim is denied can appeal without an attorney and get help from the people at AWCB. Or they can engage an attorney if they wish. The appeal will be set for a hearing before the Workers’ Compensation Board. The decision of the Workers’ Comp Board can ,in turn, be appealed to the Appeals Commission and the Appeals Commission decision can be appealed to the Alaska Supreme Court. The first step would be for the employee to contact the adjuster handling the claim to discuss why the claim was denied. Then the employee should contact AWCB to request detailed information as to how to appeal and what information will be needed. Depending on how comfortable the employee feels with the process, he or she could proceed pro se without an attorney or contact one of the attornies on the Board’s list. While at first glance it seems the RN’s exposure was work related, what if the facts were that the employee’s whole household of a husband and kids tested positive for COVID five days before the RN’s positive test? The facts may be muddled, further complicating handling a COVID claim.
Joanne, thank you so VERY much for the above helpful information AND for allowing me to quote you in this blog post. For Alaskan readers, SB 241 signed into law by Dunleavy states that “an employee who contracts the novel coronavirus disease (COVID-19) is conclusively presumed to have contracted an occupational disease arising out of and in the course of employment (if the worker) is employed as a firefighter, emergency medical technician, paramedic, peace officer, or health care provider (and) is exposed to COVID-19 in the course of employment” and is diagnosed by a physician by way of either a “presumptive positive COVID-19 test result” or a “laboratory-confirmed COVID-19 diagnosis.”
Here’s a link that just came through from a reader of my weekly “dear Abby of the workplace” newspaper column, which he notes provides a link to OSHA’s guidance outlining an employer’s responsibility to investigate cases of COVID-19 as a workplace illness; https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19
Thanks for the commentary on the hugs variety from state to state on worker’s compensation laws and interpretation of claims, therefore. My personal guess is that by and large there won’t be too many such claims honored because the agencies can’t afford to take the hit for compensation. But other reasons will be given, of course.
Workers’ Compensation and COVID Cases State Law Charts
SURVEY OF STATE WORKERS COMPENSATION COMPENSABILITY STATUTES
https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf
“The insurance and business communities are asking many questions about how COVID-19 will impact workers compensation. One that continues to be asked is whether workers compensation claims for COVID-19 are compensable. In most cases, the answer to this question will be determined on a case-by-case basis, under state law.”
2020 COVID-19 REGULATORY AND LEGISLATIVE ACTIVITY
https://www.ncci.com/Articles/Pages/II_Covid-19-RegLeg-Activity.pdf
2020 STATE ACTIVITY: COVID-19 WC COMPENSABILITY PRESUMPTIONS
https://www.ncci.com/Articles/Documents/II_Covid-19-Presumptions.pdf
Legislative Activity
https://www.ncci.com/Articles/Pages/II_LegislativeActivity.aspx
COVID-19: Workers’ Compensation
https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx#:~:text=States%20are%20taking%20action%20to,and%20covered%20under%20workers'%20compensation.
State Response to COVID-19
“States are taking action to extend workers’ compensation coverage to include first responders and health care workers impacted by COVID-19. A common approach is to amend state policy so that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation. This presumption places the burden on the employer and insurer to prove that the infection was not work-related making it easier for those workers to file successful claims. Some employers and insurers have raised concerns that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges.”