Injured workers test how workers’ comp handles COVID-19

The first worker’s compensation claims related to COVID-19 filed in Oklahoma include a college campus food service worker who died and a paramedic still undergoing treatment.

The cases are expected to test Oklahoma’s system for compensating injured workers, and whether attorneys can prove that employers should be responsible if an employee contracts the novel coronavirus while on the job.

The food service worker, a shop steward working at a Tulsa college, first went to the hospital March 18 and died four days later. His wife filed a claim against the food service company that contracted with the school.

“It is believed the husband contracted the disease either from students at the college or a coworker,” said attorney Jim Devinney, who represents the claimant. ”(The company) expected and required the husband to work. No social distancing precautions were taken and (Centers for Disease Control and Prevention) guidelines were ignored.”

Devinney said the man was at a greater risk than the general public because of the public nature of his job and the location, a college campus.

“Claimant and her husband did online shopping only. Her husband did not go anywhere after the outbreak except to work. There is no question he contracted COVID-19 at work, costing him his life,” Devinney said.

The paramedic, a 52-year-old Cushing woman, fell ill six weeks ago after taking a patient to the hospital. According to a summary of the case she filed with the Oklahoma Workers Compensation Commission, the patient was coughing during the half-hour trip.

Both she and her work partner later got sick.

While hospitalized, the paramedic was placed on a ventilator and still cannot walk. Her employer continued to pay full wages, but the insurance company denied her workers’ comp claim on the basis that “the worker’s risk was no greater than the risk of the general public.”

The paramedic’s attorney, Brandon Burton, said the woman was absolutely at greater risk, like other health care workers thrust into the maelstrom of a global pandemic. Oklahoma’s law, however, doesn’t allow compensation for “any ordinary disease of life to which the general public is exposed.”

That distinction, Burton said, will be a major question in COVID-19 workers’ comp cases.

State leaders can issue guidelines for COVID-19 claims to be treated as a “presumption” in law, basically that it is presumed they got sick because of their job unless evidence shows otherwise. For example, Oklahoma law already creates a presumption for firefighters stricken with an injury or disease to the respiratory system.

“I don’t think this language covers COVID-19 because of the narrow definition of infectious disease,” said Bob Burke, a longtime Oklahoma workers’ compensation attorney.

Missouri recently added an emergency rule presuming COVID-19 is an occupational condition for first responders and claims should be approved.

Without such a rule here, employees may have a harder time proving that their job directly led to contracting the microscopic virus.

Several Republican state lawmakers have encouraged some workers’ compensation insurance providers to authorize any first responder COVID-19 claims. In a letter sent to the Oklahoma Municipal League, Oklahoma Municipal Assurance Group, CompSource Mutual and self-funded municipalities, they cited confusion about the law but said the insurers should presume the employees caught the disease while on the job.

CompSource, a former quasi-public entity that went private several years ago and still insures some first responders, has said it will evaluate every COVID-19 claim on an individual basis.

He called for a task force to investigate the problem.

Both claims must first be heard by an Oklahoma Workers Compensation Commission judge; appeals are handled by the commissioners themselves. The commission has put a hold on most hearings during the pandemic, but pre-hearing conferences are being scheduled by email and teleconference.

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