Will Heroes Be Left Out of Workers Compensation Protections?

Our daily news is filled with testimonials about heroes in health care, retail clerks, cashiers, and delivery persons. They are performing services which endanger their health and even their lives and the lives of family members. Neglect of top administrators, particularly the President of the United States, has elevated their risk with failure to provide basic personal protective equipment (PPE) such as masks. Some employers are stepping up and providing paid stipends to their employees and stories abound of retailers increasing pay of blue-collar employees $2.00 an hour during this harrowing period. But many ‘hero’ employees are being asked to continue with their work with no extra accommodations or financial benefit.

Letter writers to our newspapers make proposals, like one in the New York Times proposing a G.I. Bill for fighters in the COVID 19 war. A lawyer colleague informs me that in New York City fatalities of transportation workers who have positive diagnoses for COVID will be awarded their benefit for work-related death without contest from their employer (or insurer) of possible alternative causes.

The safety net protections for the heroes within these occupations vary widely depending in part on their job functions, employers, and the states in which they live. Many are within the scope of their employer’s health insurance benefit. But even this protection of being “insured” does not protect them from high deductibles and co-pays which may be features of their group policy. Nor does it protect them from arbitrary decisions limiting coverage and the abilities to doctors to treat before obtaining permission of the insurers.

If, and when, these employees become sick, disabled, or are separated from employment, they may not be covered by health insurance at all. Many employers do not provide health insurance. Those insured employees who leave their jobs may have some continuing access to health insurance through a new employer, or Medicare.

Some may be eligible for Medicaid, particularly if living in a state which has accepted the Medicaid expansion offered in the Affordable Care Act (ACA), frequently referred to as Obamacare. Some may be able to extend coverage because of employer obligations under COBRA. But COBRA will not protect many employees in small plans, where the employer no longer continues to exist and operate a health plan, or where the employee cannot afford the additional cost of an unsubsidized premium for health insurance.

WILL INJURED WORKERS BE ABLE TO PROVE THEIR COVID VIRUS IS WORK-RELATED AND THAT THEY ARE PROTECTED UNDER THE WORKER’S COMPENSATION SYSTEM?

When emergency, hospital, and grocery personnel have higher incidence of COVID virus illness than the remainder of the population will they be required to prove that they contracted the virus through work to receive workers compensation benefits?

This may be an impossible burden.

Will the system accept industry wide statistical data as adequate proof of causation for a conclusion that each case is a work-related illness? There is nothing in the history of worker’s compensation carriers that suggests that they will not put employees to a sometimes impossible test of proof before receiving benefits.

There is nothing in the daily news which suggests that there is accurate tracking by industry or occupation of those who are sickened. There are reports including from the Huffington Post already documenting an effort by the Trump administration which would have the effect of limiting accurate reporting on industries data for infected employees. It is too early to know what damage to persons afflicted and who recover may experience in later years because of their exposure to the virus. Kidney damage is now being reported as more than coincidental in the ailments suffered by those infected with Covid-19.

The worker’s compensation laws are founded on the coverage of accidental occupational loss and the need for an insurance system to protect worker earning capacity and right to adequate healthcare for the work-related injury. But with COVID 19 it is easy to predict that insurance carriers will take a position that any occupation includes persons who have families, friends, and who live in communities which result in multiple daily exposures to potential carriers of the virus.

Insurance carriers will argue that it will be scientifically impossible to prove that the specific sickened employee applying for benefits contracted the deadly virus while at work instead of at leisure. Contracting the virus while commuting on public transportation to work is something which would not typically be within the scope of coverage.

Advocates may be able to show a statistical correlation of heightened infection from the virus in professions which require close contact with infected individuals. But will this statistical correlation be sufficient? Will it be administratively feasible for each claimant and attorney to provide a study which the system will accept as proof by a propensity of evidence that the presence of the virus is the result of work-related activity?

Following 9/11 similar difficulties tormented these who worked at the tragic scene and those who worked or volunteered at the dumping grounds to which remains were brought for separation and evaluation. You may recall comedian Jon Stewart being a stalwart insisting that Congress not forget those who had made their contribution to the cause and suffered physically and mentally for their good deeds. Stewart successfully lobbied a lethargic Congress for greater protection when people continued to suffer PTSD and mysterious illnesses which recurred among persons in the group.

JUSTICE IN WORKERS COMPENSATION REQUIRES A CONCLUSIVE PRESUMPTION OF CAUSATION AMONG SICKENED EMPLOYEES IN HIGH RISK OCCUPATIONS.

The workers compensation system is mightily flawed as administered. In most states, including Arizona, industry dominates the selection of Commissioners who in turn set the culture for employees of the Industrial Commission and ethical standards for the industry. The most experienced doctors dealing with this system tend not to be the patient advocates. The incentives of the system are generally controlled by insurers. The progressive aspects to the system as designed around the time of Arizona statehood have been mitigated by decades of employer-sympathetic legislators and the success of an employer sponsored initiative in the mid-1980s. Workers within the system exchange their right to sue for employer negligence which may be the cause of their harm.

One protection for workers that would be meaningful if implemented would be state legislation or Industrial Commission action which prohibits insurance carriers from insisting on proof from an employee who tests positive for COVID 19 and works in one of the occupations of increased danger of contracting the disease. The causal relationship between illness and hazardous occupation can be labeled a “conclusive presumption.” A similar concept was advanced by Arizona firefighters who have higher propensities toward some cancers which become more likely when exposed to fire debris. The Arizona Senate passed such a bill in 2020. SB 1160 was not passed by the House of Representatives.

There are too many deficiencies to correct in our insurance system on an emergency basis. But adding some level of protection for the people who are exposing themselves and their families to danger is a morally necessary part of our social compact with our community members who take on greater sacrifice because of their occupation. It is equally appropriate to figure out a way to protect and to thank those who volunteer for good work knowing that it may cause personal loss to self or family.