COVID-19 and Workers' Compensation: When and How to Make a Claim

As I write this, the COVID-19 pandemic is beginning to spread in Texas. Despite this, tens of thousands of Texas workers are getting called in to perform work in any number of occupations that require them to be in close proximity to others. Some work in grocery stores or food service, some work for oil companies, some work in other essential services. While the rest of the state is staying at home and observing strict social distancing practices, these workers are finding themselves in positions where their risk of getting sick is much higher simply because they are required to work.

Worse yet, there are already reports of employers who are not taking the pandemic seriously, and who are refusing sick leave and insisting that employees show up to work, even if they are sick. Inevitably, a large number of Texas employees are going to end up getting sick as a result of their work, some will face life-threatening situations.

Many of these employees are a part of workplaces that do not carry workers' compensation. In rare situations, they may be able to file suit directly against their employer. The rest of these employees work for individuals and businesses that are covered by workers' compensation. But will workers' compensation apply in their situation?

In Texas, workers' compensation claims can include so-called "occupational diseases." An occupational disease is any disease that arises out of and in the course and scope of employment that causes damage or harm to the body. Ordinary diseases of life, those to which the general public is exposed outside of employment are not generally covered, and respiratory illnesses in general have previously been found to be such "ordinary diseases."

All of this might lead you to believe that there is simply no way to prove an occupational disease case based on exposure to COVID-19, but that assumption is incorrect. There is hope for winning this type of case, but to do so, you are going to have to get past a number of hurdles, and most of them are going to be very difficult. Here are a few:

Getting Medical Evidence. Finding a doctor who is on your side and willing to be your advocate in the process is the first and most critical need in your situation. Your own common-sense reasoning about why your COVID-19 exposure was work-related isn't going to help. You are going to need medical evidence, preferably from a specialist who can speak to how communicable diseases spread. In many cases, there simply won't be a good enough medical reason to believe that the COVID-19 exposure was probably from work. However, if your doctor believes that your exposure and subsequent illness was probably work-related (more likely than not), you will have a fighting chance. Your doctor may not want to get involved in a workers' compensation claim, but if you don't have his or her support, you won't have a way to move forward.

Notifying Your Employer In Time. When you have an occupational disease, you have thirty days from the date you first knew or should have known it was work-related to notify your employer. After that, it is too late to make your claim. The bottom line here is that you should notify your employer as soon as possible after you are diagnosed. Preferably, on the same day. You should make sure your employer knows that you have a COVID-19 diagnosis and that you believe it is work-related. It isn't enough to simply call in and say you are sick. You must indicate you believe it is work-related. Do this in writing - by email or text message - so you will have something at a later date to prove that you took this critical step.

Making a Timely Claim. Your employer may try to dismiss your request for making a claim based on a COVID-19 exposure because it "isn't covered." This may leave you in a situation where you are uncertain as to whether your claim has been or will be turned in to the insurance company. If you and your doctor are relatively certain that your exposure came from the workplace, don't listen to this. Make the claim anyway. You can file the claim directly with the Texas Department of Insurance by filling out this form.

Getting Legal Representation. At this point, if not before, you are going to need some kind of help with your claim. Your best bet will be to find an attorney in your area who practices workers' compensation. However, some workers' compensation attorneys may be hesitant to take this type of matter, or to take your case in particular. If you are not able to find an attorney, you should seek out help from the Office of Injured Employee Counsel.

Getting the Claim Accepted. Once your claim is turned in, the insurance company is almost certainly going to deny the claim. Virtually all occupational disease cases are denied as a matter of course. If your doctor is backing you up, and insists that your COVID-19 illness was probably a result of your work (see above), don't let this deter you. You will need to file a request for something called a Benefit Review Conference. Your attorney and/or your assigned Ombudsman from the Office of Injured Employee Counsel will be able to help with this.

At the end of the process, you will have a hearing in front of an administrative judge, who will decide your case. At the hearing, the insurance company will likely show up with documentation from doctors who claim that there is no evidence you got the disease from your workplace. You will need to be ready with testimony from your own doctor to prove your case and to respond to the insurance company's doctors. If the judge agrees with you, your claim will be treated as "accepted" for the time being, although there is still a long appeals process that the insurance company may pursue.

The process of making a claim will be long and difficult. However, your life and the life of those you love has been or will be seriously disrupted as a result of your work-related illness, you should consider taking the steps outlined above.

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