Compensation for COVID-19

Compensation For COVID-19.In this blog, we examine a case study and an example of why it is difficult to win a workers’ compensation claim based off contracting COVID-19. The fact is, the burden of proof that one contracted COVID-19 at work, and not elsewhere, is not easy to pass. In Texas, where no presumption of eligibility exists, 45% of 32,000 workers who evidenced a positive COVID-19 case were denied claims.[1]

Case Study

Separate and Distinct

This case originates in California with a California District Court Judge presiding over the matter. Robert Kuciemba alleges that he contracted COVID-19 at his workplace, Victory Woodworks Inc, and that his wife, Corby Kuciemba, who he passed it on to, suffered a severe case with permanent injury.[2]

The Kuciembas intended to prove that Mrs. Kuciemba has a separate and distinct claim from her husband contracting COVID-19 due to coming in “direct contact” with her husband. They used an example in Snyder v. Michael’s Stores, where an employee was exposed to a dangerous degree of carbon monoxide. The employee was carrying a child in utero, and it was successfully argued that the child had a separate case from the mother. The court in the present case stated that Mrs. Kuciemba having “direct contact” with her husband does not warrant a separate case from her husband.

This is important because the Kuciembas attempted to pursue relief in civil court through this argument, yet this was rejected by the court. Mrs. Kuciemba’s claim had exclusive remedy through the Workers’ Compensation Statutes, not the civil court.[3]

Take-Home Liability

Mrs. Kuciemba was never present at the “Victory” facility. The plaintiffs used an argument available in Kesner vs. Superior Ct., a 2016 California Supreme Court opinion that found an employer accountable for an employee’s nephew’s exposure to asbestos and subsequent death based on asbestos fibers he took home with him, which were found on the uncle’s clothing. The Kuciembas alleged that the COVID-19 virus transferring could be construed in the same way.[4]

“Victory” rejected this argument and argued that this example was too narrow and could not be applied here due to “the nature of the asbestos industry and how it is regulated.”[5] Mesothelioma is not an infectious disease like COVID-19, and this case was not similar in that the uncle did not contract mesothelioma (on-site).[6]

Although the employer was held accountable in the Kesner case, the court found that the employer had a responsibility in handling their hazardous product (asbestos). The employee was owed that responsibility in not allowing that product to be transferred to those in the employee’s household. It is consistent with “liability for harm caused by substances that escape an owner’s property” where the company fails to practice and exercise caution in its handling of those materials.[7]

COVID-19 Presumption

By contrast to the case where asbestos originated from work, “Victory” argued that the Kuciembas’ COVID-19 did not originate from her husband’s workplace. In addition, “Victory” was not profiting off COVID-19, as the employer in Kesner profited off asbestos. Mrs. Kuciemba could have contracted the virus from everyday activities.[8]

“Victory” argued that they fulfilled their duty as a responsible employer in maintaining best practices in reducing spread of the virus as provided by the Centers for Disease Control and Prevention (CDC), which is all they really needed to do. Also, there is no guarantee that an employee will not get the virus.[9]

How Hard Is it to Prove COVID-19 Exposure at Work?

Is COVID-19 an Occupational Disease?

Across the country, a substantial amount of workers’ compensation claims for COVID-19 are being held up or simply denied. It is a high bar to pass in proving that COVID-19 was contracted at work. Even in cases where the workers died, claims are consistently being denied. Workers’ compensation statutes normally exclude “ordinary diseases of life” such as the common cold or flu, which are infectious diseases.[10] However, COVID-19 is no ordinary infectious disease, which has made it possible for people to sue. There is still uncertainty about whether COVID-19 classifies as an “occupational disease”. Due to this, COVID-19 cases are solved on a case-by-case basis, respective to the circumstances of each one.[11]

Cases in Florida

In Florida, front-line workers who were state and local employees had their claims accepted at a significantly higher rate than private-sector employees, displaying bias. 29,400 workers’ comp claims were filed in Florida by the end of December. In that, 56% of cases from private-sector workers were denied, while state and local employees’ claims were denied an unassuming 22%.[12] Mind you, an accepted claim does not mean the injured worker receives benefits. It simply means that the claim is covered under workers’ compensation insurance.[13]

Example of Denied Claim

A corrections officer in Cheshire, Connecticut, Virginia Ligi, was working on a housing floor with approx. 100 inmates, including coworkers, when she contracted COVID-19. She spent three weeks bedridden with “vertigo, shortness of breath, muscle aches, migraine headaches, and vomiting.” In her facility, open windows are inaccessible, and social distancing is impossible. In addition, the facility could not provide enough cleaning supplies/personal protective equipment, giving one surgical mask for an entire duration until the next shipment was available.[14]

It is easy to see how there is not adequate ventilation in Ligi’s workspace. Before Ligi got sick, COVID-19 cases were already emerging. At the time, Ligi could not perceive that she could have gotten COVID-19 anywhere else, as everything was shut down. Substantial time after Ligi filed for workers’ comp, she had not even received a denial letter. “I got zero contact”, she said.[15]

Example of Rare Approved Claim

Yet, through all of this, there is a glimmer of light. A former meatpacking worker last month won the first workers’ compensation settlement for contracting COVID-19 at a meatpacking plant. An expert witness in the case brought by Jose Tovar, the plaintiff, in Texas testified that the exposure was not happenstance; it did occur at work. This was due to many cases at the facility, the “crowded nature of meat processing lines and locker rooms”, and exposure to infected coworkers.[16] The same circumstances that were present before are no longer, thankfully, due to vaccines. Compensation for COVID-19 may be easier to attain in the future to meatpacking workers.

What it Takes to Win

States have passed workers’ compensation COVID-19 bills to give exclusive presumptions to essential workers, believing that the nature of their work puts them in harm’s way.[17] This has made it easier for people to file claims. Does it increase the chance of winning a case? Statistically, yes, but mass numbers of people are still having an awfully hard time doing so. So, is there compensation for COVID-19? Yes, if you are lucky and have a lot of patience.

[1] Weber, Lauren. “Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected.” The Wall Street Journal, Dow Jones & Company, Inc., 14 Feb. 2021, www.wsj.com/articles/why-so-many-covid-19-workers-comp-claims-are-being-rejected-11613316304.

[2] Anonymous. “Defense ‘Victory’ Against Employee’s Spouse in COVID-19 Exposure Case.” JD Supra, JD Supra, LLC., 2 June 2021, www.jdsupra.com/legalnews/defense-victory-against-employee-s-1165835/.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] NCCI Insights. “COVID-19 and Workers Compensation: What You Need to Know – Frequently Asked Questions – UPDATE.” NCCI Holdings Inc., NCCI Holdings, Inc., 5 Apr. 2021, www.ncci.com/Articles/Pages/Insights-Coronavirus-FAQs.aspx.

[11] Weber, Lauren. “Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected.” The Wall Street Journal, Dow Jones & Company, Inc., 14 Feb. 2021, www.wsj.com/articles/why-so-many-covid-19-workers-comp-claims-are-being-rejected-11613316304.

[12] Ibid.

[13] Anonymous. “What Is an Accepted Claim? – Definition from the MyAttorneyHome Legal Glossary.” MyAttorneyHome.com, LeadRival, www.myattorneyhome.com/Glossary/accepted-claim#:~:text=An%20accepted%20claim%2C%20also%20referred,the%20employer’s%20workers’%20compensation%20insurance.&text=If%20the%20accepted%20claim%20is,why%20the%20claim%20was%20denied.

[14] Covert, Bryce. “Covid-19 Workers’ Comp Claims Are Being Held Up or Denied.” The Intercept, First Look Media., 7 Sept. 2020, theintercept.com/2020/09/07/coronavirus-workers-compensation-claims-labor/.

[15] Ibid.

[16] Douglas, Leah. “In Texas, a Rare Workers’ Comp Win against Meatpacker JBS.” Fern’s AG Insider, Food & Environment Reporting Network, Inc., 26 May 2021, thefern.org/ag_insider/in-texas-a-rare-workers-comp-win-against-meatpacker-jbs/.

[17] Nail Greenville Author Mark Diana , S. Michael, and Mark Diana. “New Jersey Enacts COVID-19 Workers’ Compensation Presumption Bill for Essential Workers.” Ogletree Deakins, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 17 Sept. 2020, ogletree.com/insights/new-jersey-enacts-covid-19-workers-compensation-presumption-bill-for-essential-workers/.

WorkplaceLawyers.com is the website for the workers compensation attorneys firm of Livingston, DiMarzio LLP Our team of attorneys is made up of New Jersey Mesothelioma Lawyers, NJ Workers Comp Lawyers, Employment Lawyers and Certified New Jersey Worker’s Compensation Attorneys.

Livingston DiMarzio, LLP Facebook Page.   Livingston DiMarzio, LLP Twitter Profile.