[California] Thousands Infected With COVID-19 File For Workers’ Compensation

09 JUN 2020

The COVID-19 pandemic has prompted a new wave of workers’ compensation claims in California with the state creating a unique injury category for COVID-19, MSN News reports. 

It can be challenging legal territory to prove on-the-job injury especially from a viral disease but recent political action has made such claims easier as politicians, including Governor Gavin Newsom, have pushed to change the standards of proof for compensation. 

Two months after fighting for breath in a San Francisco hospital bed, psychologist Michael McCormick reportedly fought to prove he was infected with COVID-19 at his job and deserved workers’ compensation. He subsequently won.

Mr McCormick said he was diagnosed with the disease caused by the novel coronavirus six days after he stopped attending his job at Kaiser Permanente’s Daly City clinic in person. He worked at the clinic unmasked, alongside doctors treating patients. After his recovery, Mr McCormick became one of the more than 5,000 Californians who, according to state data, have filed COVID-19 related workers’ compensation claims since January.

“It’s front lines, so we certainly do have a higher risk of developing any sort of illness, particularly one that’s as infectious as COVID-19,” Mr McCormick said. “I can’t figure out how I could have gotten it otherwise.”

In a statement, Kaiser Permanente said the hospital system gave Mr McCormick’s case a “thorough and careful review, to ensure he receives equitable treatment.”

Workers who win their claim in the employer-funded compensation system receive two-thirds of lost wages - to a maximum $1,300 a week - for up to two years along with the costs of medical treatment for life and, sometimes, permanent disability benefits.

The state created a COVID-19 injury category for workers’ compensation claims in March which is retroactive to December. Claims spiked as novel coronavirus cases rose and shelter-in-place orders confined everyone but essential workers to their homes. 2,251 workers filed for the compensation in March and 2,677 in April. The number decreased in May, there were only 85 claims in the first three weeks.

As workers filed further claims, state data shows that fewer were denied. The 60 per cent denial rate in January dropped to 11 per cent in May. But that was still a higher denial rate than that for total claims, suggesting it may be harder to prove viral infection at work than a traditional workplace injury.

Governor Newsom issued an executive order on May 6 giving the benefit of the doubt to essential workers if they fell ill within two weeks of attending work. The order, which lasts for 60 days, is retroactive to March 19. Employers may rebut claims with evidence but will have to prove workers were infected in a higher-risk environment than their job, something lawyers say may be difficult to do.

“It changes the burden of proof and it flips it over,” Mark Vickness - an Oakland lawyer who represents injured workers - said. “That’s a significant shift.”

The California Chamber of Commerce reportedly said the change puts an undue burden on employers. The Workers’ Compensation Insurance Rating Bureau of California - funded by its membership of employers - estimates the cost at billions of dollars.

Some politicians are going even further than Gavin Newsom. A state bill sponsored by multiple Democratic lawmakers would prevent employers from rebutting compensation claims by coronavirus-infected firefighters, peace officers and hospital employees providing direct patient care.

According to the California Department of Public Health, more than 10,500 health care workers tested positive for COVID-19 and 64 died in the state. Health workers argue they face higher risks on the job than elsewhere, especially under shelter-in-place orders.

“There is greater exposure than the general public, it’s a no-brainer,” Dr John Balmes - a San Francisco General Hospital physician and the director of Northern California’s Center for Occupational and Environmental Health - said. “The reason we’re wearing (personal protective equipment) is that we work with patients that are actually infected and spewing respiratory droplets.”

Kaiser Permanente and other Bay Area hospitals said they will follow the governor’s order and review individual claims in addition to providing benefits to infected workers.

“Given the unprecedented nature of circumstances ... it’s the right thing to do,” Gail Blanchard-Saiger - the California Hospital Association’s vice president of labour and employment - said. However, Ms Blanchard-Saiger questioned legislation that would grant hospital workers irrefutable compensation since, she said, they work in a controlled environment, unlike police officers who have a higher standard of protection.

Some hospital employees are in little doubt that their work environments put them at risk. When the Bay Area followed sheltered in place orders in March, Michael McCormick continued attending the clinic to see patients, sometimes in an examining room with a doctor for 30 minutes. He reportedly remembers patients coughing. Doctors in his clinic later told him that some of the patients they treated were hospitalized with COVID-19.

Mr McCormick was not wearing a mask because the hospital did not require everyone to wear one at that point and he was never fitted for an N95, the highest level of protection worn by doctors and nurses. Kaiser said in its response that N95s are generally reserved for high-risk procedures performed in a hospital room and not used for a routine mental health visit.

Some physicians at the Daly City clinic began working from home on March 16 but McCormick said he wasn’t told to do so until March 24. Two days later, his symptoms including chills, headache and fever began. He was diagnosed with COVID-19 on March 29. The following day, Kaiser’s occupational health division told him the source of his infection was “community transmission” and not work.

Mr McCormick said he returned to work conducting telemedicine on May 11 and he filed for workers’ compensation the same week, with the help of the National Union of Healthcare Workers, of which he is a member. His claim was approved Friday.

Dr Stephen Parodi - associate executive director of Permanente Medical Group at Kaiser - said the hospital system’s infection prevention program follows best practices for using personal protective equipment. “The safety of our patients and staff is our priority,” he said.

Source: MSN News


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