By: Mark Barnes
Since March, 2020, when Governor Mike DeWine declared a state emergency due to the novel coronavirus, the Ohio Workers’ Compensation system effectively slowed to a halt. The Director of Health’s Stay at Home order and increased spread of the virus dictated that the majority of Ohioans remain at home for several months. While the Bureau of Worker’s Compensation and Industrial Commission remained in operation, these institutions had to find ways to conduct business remotely, which has presented unforeseen challenges. More importantly, concerns for public safety have converted the Commission from a bustling community adjudication forum to a veritable chat room of dispute resolution. Before the coronavirus/COVID-19 epidemic, the Commission routinely heard four to six hearing each docket hour, depending on the hearing issue. Today, while the Commission maintains that all matters are being set for hearing, the Commission will hear no more than two hearing per hearing docket. The Commission’s backlogged docket is the new normal, and until the coronavirus/COVID-19 spread abates, there does not appear to be any end in sight.
Throughout the pandemic, many businesses have remained open as “essential businesses,” which means many Ohioans have continued to work in the traditional sense. While some businesses can effectively implement remote work for employees, not all businesses can function in that manner. After two months of economic contraction, Governor DeWine slowly began a process of reopening businesses through his Responsible Restart Ohio plan. As a practical matter, all businesses which have found a way to remain viable have reopened their doors. Nevertheless, the coronavirus/COVID-19 continues to spread at an alarming rate. So, what might this mean for Ohio’s workforce? If an individual believes he/she contracted coronavirus/COVID-19 at work, is this a compensable workers’ compensation claim? Unfortunately, there are no clear answers.
The Ohio workers’ compensation system recognizes two types of claims: injuries and occupational diseases. Injuries and occupational diseases are distinct, as there are different modes of proof and statutes of limitations for filing each type of claim. Nevertheless, decades ago when the Bureau eliminated separate filing forms for each type of claim and introduced the FROI-1 claim application, the lines between an injury and occupational disease became blurred. For example, is carpal tunnel syndrome a repetitive trauma injury or is it an occupational disease? The answer often depends on the theory of recovery pursued by the claimant’s counsel. If a claimant contracts coronavirus/COVID-19 and alleges he/she contracted the virus/disease at work, is this a claim, and if so, is this an injury claim or an occupational disease claim?
Ohio has never recognized routine community spread illnesses like the cold or flu because of the difficulty connecting the contraction of the illness to work. Whether the issue is injury or occupational disease, the workers’ compensation system always has been designed to compensate individuals for injuries and diseases caused by workplace hazards. In March, 2020, the Ohio General Assembly introduced House Bills 571 and 573, which would create a presumption that COVID-19 was contracted at work and which may be rebutted only with affirmative evidence. The bills would amend the law to include COVID-19 as an occupational disease. These bills remain in committee and are long way from becoming law. In the interim, coronavirus/COVID-19 claims are beginning to work their way through the hearing system at the Commission.
To successfully defend coronavirus/COVID-19 claims, employers will need to attack the claimant’s evidence on injurious exposure and causation. Claimants always have the burden of proof, which means those alleging contraction of coronavirus/COVID-19 at work, first must demonstrate a workplace hazard, and second the workplace hazard proximately caused contraction of coronavirus/COVID-19. This is a tall order. At the very least, an employer will need to obtain an IME from an occupational specialist. Employers may also consider retaining an infectious disease specialist and/or an industrial hygienist, who can address the risks of the work environment. Regardless, defending coronavirus/COVID-19 claims may not be easy. The coronavirus/COVID-19 is a scary and deadly disease. While hearing officers have a duty to be objective, they are human beings. Invariably, fears and sympathy can factor into their decision making.
If you are faced with a coronavirus/COVID-19 claim, the prudent thing is to contact an attorney and prepare for a difficult defense. Until more is known about this disease, the outlook for coronavirus/COVID-19 claims is uncertain