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Seeking workers’ comp after a life-threatening case of COVID-19? Here are some things to consider.

  • Author: Lynne Curry
    | Alaska Workplace
  • Updated: December 15, 2020
  • Published December 14, 2020

Update, Tuesday, Dec. 15:

Columnist note: After writing the above article, I learned that Alaska’s SB 241 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.”

Original story:

Q: I’m a registered nurse who almost died from COVID-19 respiratory failure. I work in 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?

A: 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 50 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.”

According to Joanne Kell, an insurance adjuster with 30 years’ experience in workers’ compensation in Alaska, “Alaska workers’ compensation law favors the employee and in most cases in Alaska, there is 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 general the Alaska’s workers’ compensation board had held that 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 COVID-19 first responders. We all owe you a great deal and we elected to take care of 9/11 first responders. You also marched straight into the unknown and danger.