Coronavirus (Covid-19) and workers’ compensation: When your employer won’t pay up

Filed Under: Costs, Patients

Hospitalized patient

Three days after treating a Covid-positive patient in April, Monica Burgos-Wilkins awoke in the middle of the night with a fever and severe muscle pain. Within 24 hours, Burgos-Wilkins, a Waterbury, Conn., hemodialysis nurse, had lost her sense of taste and smell and tested positive for the coronavirus herself. After that, she said, her illness quickly took over her life.

“It was like a snowball,” said Burgos-Wilkins, 46. “I came out positive and everything got crazier and crazier by the minute.”

Over the next three months, Burgos-Wilkins, who spoke on condition that her employer not be identified publicly because the matter is still in litigation, became critically ill. She tried to return to work twice only to collapse on her first shift back. She was hospitalized twice and has been diagnosed with Covid-induced lupus.

But although she caught coronavirus on the job, her employer’s workers’ compensation insurance carrier is fighting her claim.

What is workers’ comp anyway?

Workers’ compensation is a form of insurance that pays out when employees get injuries or diseases that are caused by working.

While it varies by state, people injured at work are usually entitled to money to cover medical expenses, and also two-thirds of their pay while they’re out, said Bill Smith, a workers’ comp lawyer and immediate past president of the Workers’ Injury Law and Advocacy Group. Workers who are permanently injured may receive more payment, and, in most states, workers’ comp can pay a death benefit that goes to the deceased person’s family.

The laws and policies that govern workers’ comp benefits differ significantly from other types of injury protection, said Michael Duff, a professor at the University of Wyoming College of Law.

“You can think of workers’ comp policy as a kind of personal injury law that applies exclusively to the workplace,” Duff said.

One important aspect of the system is that it operates irrespective of fault, Duff said. That means when a worker becomes sick or injured as a result of working, it is not necessary to litigate whether or not the employer did something wrong in order to claim the benefit. All that matters is that the injury was caused by work.

The Covid era

Since coronavirus cases began skyrocketing in the United States in March of 2020, the workers’ compensation system has been struggling to keep up with a very new work hazard that fits particularly poorly into existing law, Smith said.

“In any workers’ comp claim, you have to prove that the exposure or event was caused by your employment,” Smith said. “It’s very difficult to prove this with Covid.”

In most states, Smith said, a workers’ comp claim has to be defined as either an accident or what’s called an occupational disease like black lung in coal miners.

Smith said that while it is very difficult to prove any occupational disease, Covid is particularly tricky.

“Covid acts more like a disease in process,” Smith said, “but the onset occurs more like an accident.”

Unlike black lung, which affects coal miners after years of working in very particular, hazardous conditions, Covid and other communicable diseases are usually not exclusively present in any workplace. Smith said that in some states, including South Carolina where he practices, the occupational disease definition includes a restriction saying the occupational illness cannot be a communicable disease.

How the laws work

But in response to the pandemic, that might be changing. Fifteen states have now passed what are called presumption laws, mandating that, for certain types of workers — usually first responders and healthcare workers — it is automatically presumed that workers were infected on the job unless their employers can prove otherwise.

Connecticut, where Monica Burgos-Wilkins contracted Covid during a nursing shift, is one of those states.  That’s why her employer initially paid her workers’ comp benefits — for the first two weeks after she tested positive.

But after two weeks, Burgos-Wilkins, a single mother of two, had not recovered.   Her employer was asking her to come back in.

“They kept pushing me to try to get back to work and I was like, ‘Listen, I’m still having fevers. I’m still having clots. I feel terrible,’” Burgos-Wilkins said. She tried to go back to work but passed out and woke up in a hospital room. She went home to recover. When she tried to go back a second time, the same thing happened.

Monica Burgos-Wilkins
Monica Burgos-Wilkins

“I kept telling them I wasn’t feeling well,” she said. “But it’s supposed to be a two-week thing, two-week thing, two-week thing.”

Burgos-Wilkins’ illness did not turn out to be a two-week thing. Now, in November, nearly seven months after contracting the coronavirus, she is considered a long-hauler, a patient who suffers from long-term medical complications and disability that her doctors say is a result of the virus.

But when Burgos-Wilkins was sent home after her first attempt at returning to her job, her workers’ compensation ended. She tried to get a hold of her employer’s third party policy administrator to get her benefits restarted.

“They refused to answer my calls. So I got my administrator involved — didn’t answer her calls, either,” she said. “So what do I do? I’m a single mother homeowner with two kids.”

Ultimately Burgos-Wilkins contacted a lawyer.

When work-acquired Covid turns fatal

When an employee dies from a work-related injury or illness, claiming the workers’ compensation survivor benefit can be just as complicated, especially if the employer wants to fight it, said Mack Babcock, a workers’ compensation attorney at the Babcock Law Firm in Denver, Colo.

Babcock represents the family of Daniel Avila Loma, a 65-year-old worker who died in April after contracting Covid at the JBS meat processing plant in Greeley, Colo. Despite a record of government citations and hundreds of reports of coronavirus transmission at Avila Loma’s plant, Babcock said JBS is fighting the family’s claim, saying that Avila Loma and other victims were not infected at the plant, arguing instead that they could have caught the virus anywhere.

Colorado’s Senate introduced a presumption law for essential workers on June 2, which would have applied retroactively to the start of the state’s stay-at-home order in March. But the bill was postponed indefinitely just a week after it was introduced, leaving the burden with the infected employees and their survivors to prove they got sick at work and nowhere else. JBS did not respond to our request for comment.

“Google Covid-19, Greeley and you will see,” he said of the JBS outbreak. “They have been sanctioned by OSHA, scolded by the health department, threatened with criminal prosecution.”

Babcock said that as Avila Loma’s dependents, his wife and one of his children — an adult son with autism spectrum disorder who relied on his father to provide him with food, shelter and transportation — are entitled to a portion of his wages, the standard worker’s comp benefit when an employee dies after a work-related injury or illness.

But Babcock said that when Avila Loma’s son Olivier contacted JBS to inquire about claiming his father’s benefits for his mother and younger brother, the company lied, telling him he could not file a workers’ comp claim, a statement Babcock said is “not true.”

“Without question, Daniel’s family is entitled to benefits under Colorado law,” Babcock said.

A game of attrition

Babcock compared JBS’s strategy to that of Ford Motor Company’s infamous Pinto model whose fuel tank design caused dozens of cars to catch fire after rear-end collisions in the 1970s.

“They made a financial calculation of how much it would cost to recall all of the Pintos as opposed to how much it would cost to not recall,” said Babcock.

Ford, Babcock said, figured it would be cheaper to pay the Pinto victims who sued the company, betting that most people who got hurt would never even realize they could contact a lawyer and seek damages.

JBS, he said, is calculating that by not telling their employees they can file claims, they’ll be able to avoid paying out for workers who won’t bother to get legal advice, especially workers with relatively minor cases of Covid.

But it turns out, that’s a risky move as well.

“In Colorado, if a claim is mishandled it can go to court,” Babcock said.

Going to court for any reason is generally not in the best interest of the employer, said Bill Smith, the attorney in South Carolina. That’s because the country’s workers’ comp legal framework not only mandates protection for workers, it also limits liability for employers. But in civil court, there is no cap on the amount of money a company can be forced to pay out.

“If I were an employer and had a claim, I would actually want it covered by workers comp,” Smith said.

Since his death, Avila Loma’s family has struggled financially, with Olivier having to take on two extra jobs while Babcock tries to move their case forward. But that, Babcock said, has been a challenge. JBS, he said, has been taking an inordinately long time to respond to each of his requests and motions. It’s a strategy he recognizes.

“It’s a game of attrition,” Babcock said, meaning JBS is trying to outlast the plaintiffs in the hopes that in the end, they will give up fighting and accept a lesser settlement out of desperation.

Illness with an uncertain course

Because Covid is so new, it is unknown how many long-term survivors are in Burgos-Wilkins’ situation, but her lawyer, Isaias Diaz from the firm Dressler Strickland in Waterbury, Conn., suspects they may be numerous.

“I can only imagine how many people are being adversely affected across the country because the science is not up to speed with the system,” Diaz said.

Diaz said there was never any question whether Burgos-Wilkins caught the virus at work. Rather, her workers’ compensation administrator refused to pay after she remained sick for more than two weeks, and seized on the fact that Burgos-Wilkins did — however briefly — return to work to bolster their argument that she could not still be sick with Covid.

“So in the beginning, she caught Covid, and they covered her for a brief period of time. She tried to go back to work and collapsed, and then they weren’t covering it anymore,” he said.

Burgos-Wilkins was out of work for 15 weeks with coronavirus and went 12 weeks without a paycheck. And all the while, she was accruing medical bills for her treatment.

“They tried to fight her on it. They tried to blame it on a bunch of potential pre-existing conditions that really were never there,” Diaz said.

After a months-long battle, and pressure from Connecticut’s Workers’ Compensation Commission, Burgos-Wilkins’ workers’ comp administrator paid her the money she had been fighting for: two-thirds of her salary for the 12 weeks she was out of work and money to cover her previous medical bills. But her saga is not over. The administrator still has not accepted legal responsibility for Burgos-Wilkins’ post-Covid conditions.

Accepting responsibility would require workers’ comp to cover Burgos-Wilkins’ current and future Covid-related medical bills, future leaves of absence from work and, if she becomes permanently disabled as a result of her illness, another payout.

The case is still open.

The new normal

Monica Burgos-Wilkins has finally been able to begin working again, but not as a nurse.

“The last time I attempted going back to work was about two weeks ago and I just wasn’t able to do the work on the floor,” she said in early October. “Thank goodness, I work for a company big enough that they also have a research department. They moved me and now I am working for their research department.”

But Burgos-Wilkins’ life is still anything but normal. She deals with extreme exhaustion, joint pain and photosensitivity. She is also being treated for lupus, an autoimmune condition that her doctor said was triggered by the viral load when she was infected. Her continued disability has taken an emotional toll.

“I’m not able to do the nursing work that I love most. I was just not able to get back to it,” Burgos-Wilkins said. “It was impossible for me to do it, and life the way it used to be is no longer.”

Her lawyer, Isaias Diaz has been emotionally affected by this case as well.

“I could not understand why this insurance company was fighting this woman who clearly was, like a frontline hero,” Diaz said.“It was baffling to me.”

Diaz’s experience with Burgos-Wilkins’ case has left him with the feeling that this could be a new normal for the workers’ comp world in the Covid era.

“Because the science is not developed yet,” Diaz said, “people are going to have a hard time winning their claims even though they’re probably in the right.”

What you can do

Don’t assume if you get sick on the job, your employer will help you get your workers’ comp benefits. To find out what Covid laws your state has passed, look here.

For legal advice or for help finding a lawyer, try Workers’ Injury Law and Advocacy Group (WILG), a group of workers’ comp lawyers whose mission is to protect the rights and benefits of injured workers. There is a resource page that may be helpful.

You may find other people with similar issues on any of the several support groups for Covid and long-term Covid survivors.

The Body Politic Covid slack support group has over 10,000 members as of November 2020. Body Politic started the COVID-19 support group after two members became sick with coronavirus in early March and realized they needed a community of people like themselves.

The Survivor Corps Facebook group has about 115,000 members as of November 2020 and a website with resources.

The Covid Long-Haulers discussion group on Facebook is very active, with about 9,500 members as of November 2020.

The Covid Long-Hauler advocacy project on Facebook, with about 900 members as of November 2020, was founded by Karyn Bishof, a firefighter and paramedic in Florida.

The workers’ compensation industry website, WorkersCompensation.com, has its own list of support groups, social media groups and advocacy organizations for sick, injured and disabled workers of all kinds.