Tag Archives: COVID-19

Holding meatpackers accountable for COVID-19 cases with public nuisance litigation

Posted on April 27, 2020 by Jon Rehm

The JBS Swift plant in Grand Island, Neb. is at the center of a COVID-19 outbreak in that community. (Photo credit to KTIC Radio)

The New York Times reported on a public nuisance lawsuit filed against Smithfield Foods for COVID-19 exposure created by a pork processing plant in Milan, Missouri.

What’s novel about the public nuisance suit is that it sues Smithfield for its effect on the surrounding community, not its employees.

Meatpacking plants are a hotbed of COVID-19 exposure in small cities and rural areas across the country. In Nebraska, workers at JBS Swift in Grand Island and Tyson in Lexington have high rates of COVID-19 exposure. Reports trace nearly 40 percent of COVID-19 exposures in Grand Island to JBS.

The Missouri case against Smithfield describes how fast line speeds help spread COVID-19. Workers and their advocates have long expressed concerns about line speed in meat packing plants. Line-speed is related to widespread joint and muscle injuries in packinghouses.

In my job, I spend a fair amount of time in both Grand Island and Lexington litigating against JBS and Tyson. Because of that experience, I’ve watched in anger/horror as COVID-19 tears through these communities. In my view, the same indifference that Tyson and JBS show about joint and muscle injuries has been shown about COVID-19.

Skirting the exclusive remedy of workers’ compensation

Part of my anger about COVID-19 in Lexington and Grand Island goes to the difficulty of recovering workers’ compensation benefits for COVID-19. Workers’ compensation laws provide little deterrent for packinghouses to limit COVID-19 exposure. Even if an employee can prove on the job exposure, workers can collect limited benefits from workers’ compensation. Workers’ compensation benefits are limited because employees are supposed to collect them without regard to fault.

Limited in benefits in exchange for not proving fault is at the heart of the so-called grand bargain of workers’ compensation. Workers compensation benefits are generally the exclusive remedy employees have for workplace injury and illnesses.

But a public nuisance claim skirts the problems with workers’ compensation laws. A public nuisance claim sues the packinghouses not for how they treat their workers, but for how their treatment of their workers effects the surrounding community. Exclusive remedy means that the workers can only sue their employers for a workplace injury or illness under workers’ compensation. Workers can only collect limited benefits from workers’ compensation.

Public nuisance is a legal theory that the packinghouses know well. Environmental advocates successfully used the tactic against a Smithfield subsidiary in North Carolina. I hope worker safety advocates obtain a good outcome in the Missouri case. I hope these suits spread to plants in other states.

Hard but not impossible: COVID-19 workers’ compensation claims

Posted on April 20, 2020 by Jon Rehm

An employee exposed to COVID-19 at work is likely limited to collecting workers’ compensation benefits. COVID-19 exposures are difficult workers’ compensation cases that have been made more difficult by guidance from the United States Department of Labor.

But difficult doesn’t mean impossible. Some COVID-19 exposures could lead to death, serious injury and or extensive medical expenses. Here is how I think workers should pursue workers’ compensation benefits for COVID-19 exposure

What kind of COVID-19 workers compensation claims are worth bringing

Nebraska awards substantial workers’ compensation benefits to the survivors of workers who die due to work-related causes. Severe but not fatal cases of COVID-19 that lead to hospitalization can lead to substantial medical expense. COVID-19 can also have permanently disabling effects. In Nebraska, loss of function from COVID-19 is paid on how the injury impacts a workers’ ability to earn a living.

While a mild case of COVID-19 probably wouldn’t justify bringing a workers’ compensation claim, COVID-19 symptoms may flare up in the future. So regardless of the severity of the COVID-19 exposure, it would make sense for a worker who thinks they got COVID-19 on the job to investigate how they may have gotten the virus.

Playing amateur detective

Most COVID-19 cases will likely be proved by circumstantial evidence. This means that workers should try to rule out non work-related exposure and rule in work-related exposure. This may be challenging because workers who are likely to exposed to COVID-19 on the job are also likely to have friends and family members who have been exposed to COVID-19 who could have exposed them to COVID-19 outside of work.

Workers who have been exposed to COVID-19, or their friends and family, need to do the leg work to gather the facts about possible COVID-19 exposure before memories fade and supporting documentation disappears.

Why you will probably need an attorney to pursue a COVID-19 workers’ compensation case

I believe insurers and employers will deny most COVID-19 workers’ compensation claims for two reasons. One, the cases are hard to prove. Two, many insurance policies apparently have virus exclusions. A lawyer can help a worker, or the family of a worker, exposed to COVID-19 gather facts to support their case.

In Nebraska, lawyers can subpoena documents from employers as well as serve written questions called interrogatories, requests for admissions and requests for production to help prove up a case for COVID-19 exposure on the job. Lawyers can also take depositions. I’ve written before how some employers will likely cover up and under report COVID-19 exposure. But in Nebraska employees should have the ability to obtain absence logs, occupational health records and other information outside of typical injury reports that could circumstantially prove COVID-19 exposure on the job.

I think lawyers pursuing workers’ compensation claim related to COVID-19 in Nebraska need to file petitions and serve discovery as soon as possible. COVID-19 claims will likely require more factual investigation than a typical workers’ compensation case.

Cooperation from co-workers and fear of retaliation

To some extent proving COVID-19 should be covered by workers’ compensation will probably require some cooperation from co-workers. Concerns about retaliation from an employer are legitimate. I’ve also criticized what I think are the weakness of retaliation laws recently. But Nebraska law outlaws retaliating against employees who claim workers compensation benefits. Does that protection extend to co-workers who assist in a workers’ compensation claim? I’m not sure, but recently a federal judge interpreting Nebraska’s workers’ compensation retaliation law held that the law provides broad protections.

Good facts also make good law. What that means is a co-worker who gets fired for helping a co-worker get workers’ compensation benefits may create law that formally extends the protections of workers’ compensation retaliation in Nebraska.

Though mainstream media has not widely reported this news, credible outlets like Payday Report and Law 360 have reported about widespread strikes and employee walkouts over COVID-19 safety related concners. So far, no walk outs have been reported in Nebraska. But supporting a co-worker in a workers’ compensation claim is an act of solidarity like a walk out or strike. The ability for workers to recover workers compensation benefits for COVID-19 exposure may require acts of solidarity.

OSHA guidance on COVID-19 reporting could make it harder to prove workers’ compensation claims

Posted on April 12, 2020 by Jon Rehm

Bloomberg Law reported that the federal Occupational Safety and Health Administration (OSHA) will not require non-medical and non-first responder employers to report possible COVID-19 exposures in the workplace.

OSHA’s decision on limiting reporting of potential work-related COVID-19 exposure could make it harder for workers to have COVID-19 exposure covered by state workers’ compensation laws. It will likely also make it more difficult to track exposure to the virus.

Injury reports and proving job-related exposure to COVID-19 through circumstantial evidence

Even if OSHA does not require most employers to report possible COVID-19 exposure, employers would still have to report possible COVID-19 exposures on the job to state workers’ compensation courts and agencies. However, many employers effectively use federal standards for recording an injury for reporting injuries to state workers’ compensation agencies. OSHA’s ruling may lead employers to under report possible COVID-19 exposures to state agencies.

In a blog post last week, Thomas Robinson wrote that many workers exposed to COVID-19 on the job will have to rely on circumstantial evidence to have COVID-19 exposures covered by workers’ compensation. But if employers aren’t required to log potential COVID-19 exposures, then it will be more difficult for employees to build their workers’ compensation cases with circumstantial evidence of other potential COVID-19 exposures in their workplace.

In theory employees could rely on state workers’ compensation reports to build a circumstantial case. But the lack of a federal reporting requirement may mean that employers don’t report potential COVID-19 exposure to state authorities.

Difficulties of tracking COVID-19 through medical records and billing

State workers’ compensation laws may provide another way to track the effect of COVID-19. Medical providers tend to ask about the cause of a medical condition or injury for the purposes of medical billing. Knowing which COVID-19 cases were billed to workers’ compensation would be one way to track occupational exposure to the virus.

But there are problems with this approach. Doctors usually need to rely on patient history in order to determine whether an injury or illness is related to work. A worker may be unaware of how they contacted COVID-19. Evidence that other workers were potentially exposed to COVID-19 may help doctors make that determination.

However, getting additional information to medical doctors and asking them to link an injury or illness to work duties is time consuming and often expensive. Sometimes a doctor will expressly conclude that an injury or illness was caused by work in their medical records. But with the advent of electronic medical records, it is less common to find causal statements in the body of a medical records. Unhelpful medical records will probably make it more difficult for workers’ compensation lawyers and public health authorities to investigate the causes of COViD-19 exposure.

COVID-19 and a two-tiered approach to workplace safety

I am disturbed by OSHA’s decision to limit reporting of COVID-19 by employers. The reason behind the decision is that many employers complained it’s difficult to determine if COVID-19 is caused by work. I agree that it will be difficult to cover COVID-19 cases under state workers’ compensation laws. But, filing an OSHA 300/301 report or a First Report of Injury in Nebraska isn’t an admission that an injury or illness is work-related.

Workplace safety advocates rightfully believe that this move by OSHA will make it more difficult to track COVID-19 exposure in the workplace to the detriment of retail, delivery, warehousing, transportation and food processing employees who are vulnerable to COVID-19 exposure. In his blog post about proving up COVID-19 cases, Tom Robinson wrote passionately about how first responders and health care employees were getting more workplace safety protections than retail, delivery, transportation and food processing employees.

The two-tiered approach to workplace safety predates the COVID-19 pandemic. Lowly paid retail employees are routinely subjected to violence on the job, but they usually aren’t eligible for workers’ compensation benefits for strictly mental injuries or “mental-mental” injuries. By contrast, first responders are eligible for mental-mental benefits and a growing number of states are giving first responders a presumption that mental injuries are work-related. The COVID-19 pandemic is throwing these pre-existing divisions into starker contrast.

How COVID-19 complicates workers’ compensation claims

Posted on April 6, 2020 by Jon Rehm

COVID-19 (coronavirus) is disrupting life for everyone. If you were hurt at work before the pandemic hit, your life has been disrupted doubly. Here are some ways how COVID-19 is complicating workers’ compensation cases for injured workers.

Delays in medical treatment

I’ve heard several reports that physical therapists and orthopedic doctors are limiting appointments and delaying procedures because of the virus. So even if an insurer or claims administrator has accepted your claim and approved treatment, you may have to wait for treatment.

Some of this delay may not be bad for workers if temporary disability benefits are being paid along with medical benefits. In 15 years of practice, I’ve seen employers and insurance companies force employees to return to work sooner and sooner. The delays in medical treatment created by COVID-19 may give some employees more time to heal from their injuries.

FMLA

But on the flip side, delays in medical care will likely force some employees to lose job protected under the Family Medical Leave Act. (FMLA) While FMLA protections were expanded under the CARES Act, those expanded protections don’t give any additional job protected leave to employees who were hurt on the job if it wasn’t related to COVID-19.

Undermining doctor choice

In Nebraska, employees have the right to pick their own doctor to treat their work injury. These doctors are often primary care doctors. Of course during a pandemic, it is harder for an injured worker to see a primary care doctor and have a primary care doctor fill out necessary paperwork for a workers’ compensation case.

Unscrupulous employers may use the unavailability of a family doctor to steer an injured worker to an employer-friendly occupational medicine clinic. This tactic pre-dates the coronavirus, but expect the pandemic to provide a new talking point for human resources and workers’ compensation bureaucrats to manipulate medical care in workers’ compensation cases.

The gears of the workers’ compensation bureaucratic complex have not stopped grinding during the pandemic. Genex, who contracts with insurance companies to micromanage medical care for injured workers, wrote a blog post last week heroically portraying one of their nurse case managers overcoming the resistance of a treating doctor and COVID-19 to return an employee back to work. (Assuming they had a job to return to in the first place.)

But if insurance companies and their minions can play the “corona card”, so can injured workers. Injured workers have the right to exclude nurse case managers from examination rooms. I would suggest injured workers’ ask nurse case managers to observe “social distancing” and stay out of cramped examination rooms.

Loss of health insurance in denied claims

Thanks to firms like Genex, many employers prematurely quit paying workers’ compensation benefits. This often forces employees to pay for medical treatment related to work injuries with their health insurance. But this plan could go awry if employees lose health insurance benefits due to a layoff.

Under the law, employers are supposed to continue health coverage under COBRA. Injured workers may also be able to sign up for health insurance under the Affordable Care Act. But COBRA coverage is too expensive for most employees and even ACA coverage can be too costly for many. Employees should see if they are eligible for unemployment under the CARES Act. Employees could help pay for health insurance with the additional $600 per week unemployment benefit on top of regular weekly benefits and extended weekly benefits available under the CARES Act. But even with increased unemployment benefits, injured workers may have to make difficult financial decision about pursuing medical care.

Previous posts about coronavirus/COVID-19

“Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty” – March 30, 2020

“What workers should know about coronavirus and workers’ compensation” – March 23, 2020

Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty

Posted on March 30, 2020 by Jon Rehm

Skyrocketing unemployment and economic uncertainty due to the coronavirus is delivering another load of fear to already anxious injured workers. Fears about how the sudden downturn in the economy can affect a workers’ compensation claim are legitimate fears.

So, what happens to workers’ compensation claims when an employer closes or lays off workers in mass or goes bankrupt? What happens when a workers’ compensation insurer becomes insolvent? How does a mass layoff or plant closing affect a workers with already an already accepted workers’ compensation claim?

Bankrupt employer

The worst-case scenario is a bankrupt employer. While employers are required to carry workers’ compensation insurance, financially unstable employers tend to carry cheap high deductible insurance that shits the cost of an injury away from an insurer onto an employer. Bankruptcy can stay the payment of workers’ compensation benefits for an injured worker.

An injured worker with a bankrupt employer needs to contact an attorney. An injured worker is a creditor of a bankrupt employer and the law tends to favor creditors who file first. A lawyer can also go to court and sometimes force an otherwise solvent insurer to pay workers’ compensation benefits for a bankrupt employer.

Insolvent insurer

Recessions hit workers compensation insurers with a vicious one-two punch. Layoffs reduce the insurance premiums the insurance companies rely on and declines in the stock market cut into the investment profits from those premiums.

In Nebraska, like most states, workers compensation insurers pay into guaranty funds to take over claims from insolvent insurers.

Unfortunately, at least two prominent state governors, Steve Bullock of Montana and Chris Christie of New Jersey, raided guaranty funds in order to balance state budgets. We will probably find out if guaranty funds will serve as an effective backstop in the next few years.

Laid off on “light duty”

Jonathan Louis May of Morgan and Morgan in Memphis raised concerns on Twitter about what happens to injured workers on light duty who get laid off due to a plant closure or mass lay-off. I agree with May that many insurers will probably use layoffs to deny temporary disability.

In Nebraska, a lay-off should not impact a worker’s eligibility for temporary total disability. But it may take a court order to have back due temporary disability benefits paid after a lay off.

Collecting workers compensation and unemployment benefits

Workers laid off in a mass lay-off may have their employer file unemployment for them. Under the recently passed CARES Act, workers can get their weekly unemployment benefit plus $600 for up to four months.

Injured workers who aren’t already collecting temporary disability in Nebraska should be able to collect unemployment and back due temporary disability.

But injured workers in Nebraska who are already collecting temporary disability may not be able to collect these enhanced unemployment benefits. Normally a worker who is collecting temporary total disability benefits is not eligible to receive unemployment under Neb. Rev. Stat. 48-628.02(c). I am not aware if the CARES Act has modified that rule or if the state has eliminated that requirement during the crisis.

When in doubt employees receiving temporary disability under workers compensation ought to file an application for unemployment if they have lost their job due to a coronavirus related layoff. The state of Nebraska has eliminated job search requirements for employees laid off during the coronavirus crisis. Workers normally must be able to and available for work and be looking for work to receive unemployment benefits. Workers who are temporarily totally disabled for workers compensation aren’t able to work. But if work eligibility isn’t a requirement to receive unemployment if you lose your job due to coronavirus, injured workers who are receiving temporary total disability would have a decent argument to receive unemployment in addition to temporary total disability benefits.

What workers should know about coronavirus and workers’ compensation

Posted on March 23, 2020 by Jon Rehm

According to NBC News, at least 20 percent of healthcare workers in Italy have been exposed to coronavirus. Health care workers in Nebraska may be at a similar level of risk. Workers in essential retailing, warehousing and delivery are probably also at heightened risk of catching coronavirus.

So, what do employees need to know to about coronavirus and workers’ compensation?

Reporting possible coronavirus exposures on the job

Coronavirus cases could be difficult workers’ compensation cases for reasons I will explain below. But these difficult cases will be even more difficult in Nebraska if workers fail to notify employers in a timely fashion if they believe they were exposed to the coronavirus. Nebraska courts recently made it easier for employers to dismiss workers’ compensation claims if employees delay notifying employers about potential work injuries. I believe these notice requirements could be even stricter for healthcare workers.

Protections against retaliation for reporting coronavirus exposure and treating for coronavirus

Employees may delay exposure to coronavirus is fear of retaliation. Fears about retaliation will likely be heightened due to fear of job loss in the teeth of mass layoffs and skyrocketing unemployment.

But employees who report possible coronavirus exposure or coronavirus related safety concerns on the job are protected by a variety of anti-retaliation laws that protect workers who claim workers’ compensation and report safety concerns. I’ve written before about the relative weakness of these laws. I believe workers’ will be better served if they can report safety concerns as a group rather than individuals.

A request for time off due to coronavirus or suspected coronavirus may also be covered under the Family Medical Leave Act and the emergency amendments to the Family Medical Leave Act enacted to deal with coronavirus pandemic. These laws also have anti-retaliation provisions.

Why coronavirus exposure would be difficult workers’ compensation claims

The reason why Coronavirus infections may not be covered goes to the fundamentals of proving the basics of a workers’ compensation case: did the infection arise out of and in the course and scope of employment?

In the course and scope of employment

Course and scope of employment goes to having the injury occur within the time and place of employment. Usually in the course and scope of employment is not a disputed issue. But in a case involving a corona virus infection, it may be difficult to prove whether an individual was infected on the job or not. This could be a time and resource consuming investigation for an employee. Public health officials may do some of this legwork, but that information may not be easily accessible due to confidentiality concerns.

Workers infected during business travel are presumed to be acting in the course and scope of employment under the “commercial traveler rule.” But merely catching coronavirus in the course and scope of employment isn’t enough just to have workers’ compensation cover coronavirus related medical expenses and lost wages.

Arising out of

An employee also needs to show that the infection was connected to some risk involved with employment. In other words, employees would have to prove some link between their work duties and their infection. In some cases this could be challenging and would also involve time and expense and in investigation.

Employees may be able to argue in some circumstances that their work increased the chances of them contracting coronavirus. Health care, delivery, warehousing and essential retail employees could have an easier time proving exposure. Unfortunately, in Nebraska there is no presumption of compensability (workers’ compensation coverage) if an injury took place on the job.

Other hurdles of potential Coronavirus workers’ compensation claimants

Coronavirus cases would likely involve more investigation than a typical workers’ compensation case. But many lawyers may not want to take these cases out of economic concerns. In Nebraska, a lawyer can’t be awarded a fee for representing a claimant in a disputed medical bills case. Attorneys can take fees on disability, but temporary disability could be short in a Coronavirus case. In Nebraska, unless a disability lasts more than six weeks and an employer can avoid paying the first week of disability.

Long-term solutions

Last week the president of WILG, a group of lawyers who represent injured workers, called on the insurance industry to make it easier for workers exposed to coronavirus on the job to claim benefits. I think this is a good idea. The difficulties in getting workers’ compensation for coronavirus indicate the need for stronger health insurance and paid leave benefits to cover employees who may not be able to rely on workers’ compensation.

Stay tuned to this blog about more information about coronavirus and his its impact on workers’ compensation and workplace law. You can also check out my podcast for more commentary.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: COVID-19

Holding meatpackers accountable for COVID-19 cases with public nuisance litigation

Skirting the exclusive remedy of workers’ compensation

Hard but not impossible: COVID-19 workers’ compensation claims

OSHA guidance on COVID-19 reporting could make it harder to prove workers’ compensation claims

How COVID-19 complicates workers’ compensation claims

Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty

What workers should know about coronavirus and workers’ compensation

Skirting the exclusive remedy of workers’ compensation

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