Some conspiracy theorists argued last month that COVID-19 only killed 9000 instead of 154,000 (at the time) Americans. This number was based on Centers for Disease Control (CDC) data stating that only 9,000 death certificates involving COVID-19 patients listed COVID-19 as the sole cause of death. In the majority of deaths, COVID-19 combined with other factors to cause death.
The argument about was counts as a COVID-19 death echoes arguments about what counts as a work injury for the purposes of workers’ compensation. Does work have to be the sole, substantial or just a contributing factor for an injury to be covered under workers’ compensation?
In Nebraska, the answer to that question is that work merely needs to be a contributing cause to an injury or medical condition in order for it be covered under our workers’ compensation laws. Nebraska’s relative permissive causation standards stand contrast with more stringent causation standards in neighboring states.
But even if work needs to be a substantial or but for cause of an injury or medical condition, work duties can combine with other factors to be covered under workers’ compensation. The Supreme Court’s decision outlawing workplace discrimination based on gender identity and sexual orientation contained a great discussion about causation. In that case the court found that even a but for factor, a stricter standard than contributing factor, could combine with other factors to create legal liability.
Social media hoaxes and workers’ compensation
The COVID-19 causation kerfuffle shows once again why workers are ill-served by social media conspiracy-mongering and misinformation. Employers often attempt to suppress claims by telling workers that aggravations of old injuries are not covered. Some workers also self-suppress workers’ compensation claims by believing that aggravations of old injuries aren’t covered or that work needs to be the only reason for a work related-injury or medical condition. The idea that a condition needs to be the sole cause of an injury or death feeds that misguided line of thinking.
Causation is only part of the battle for aggravations of old injury
Nebraska law has fairly permissive causation standards work injuries. But the Nebraska Supreme Court recently signaled it could be harder for workers who have been previously compensated for work injuries to be compensated for new injuries. While the re-emergence of apportionment of permanent disability benefits is a disturbing development, it would appear apportionment doesn’t apply to temporary disability or medical benefits.
But, Nebraska also allows employers to get out of paying workers’ compensation benefits by arguing misrepresentation. The defense is based on employees concealing the effects of prior injuries, employers relying on that misrepresentation and the employee getting injured due to their alleged misrepresentation. The misrepresentation defense is usually used against employees with old injuries. And unlike apportionment, misrepresentation is an absolute defense to paying all types of benefits under the Nebraska Workers’ Compensation Act.