COVID-19 AND WORKERS’ COMPENSATION IN OKLAHOMA: ASSESSING CLAIMS IN MIDST OF A GLOBAL PANDEMIC

OVERVIEW1:

Coronavirus Disease 2019 (COVID-19) is a respiratory disease caused by the SARS-CoV-2 virus.2 Early on, many of the patients at the epicenter of the outbreak in Wuhan, Hubei Province, China had some link to a large seafood and live animal market, suggesting animal-to-person spread. Later, a growing number of patients reportedly did not have exposure to animal markets, indicating person-to-person spread. Person-to-person spread was subsequently reported outside Hubei and in countries outside China, including in the United States. Many international destinations now have ongoing community spread with the virus that causes COVID-19, as do most parts of the United States. Community spread means some people have been infected and it is not known how or where they became exposed.3

As of the date of this publishing, Oklahoma has seen over 250,700 confirmed positive cases with 2,161 deaths related to the novel coronavirus. Even though, Oklahoma has taken extraordinary steps to flatten the curve of new COVID-19 cases while maintaining efforts to protect the businesses in the state, the loss of life and newly contracted cases continues to grow along with the political and economic implications of this virus. While the overall impact of the COVID-19 disease is still yet to be determined; inevitably, this disease will continue to have far-reaching effects, including its impact on the employers across Oklahoma and their Workers’ Compensation carriers.

The Oklahoma Workers’ Compensation Commission is currently taking all necessary precautions to flatten the curve of the spread of this virus. Daily, we are working closely with the Commissioners and court staffers to continue to develop answers to the ever-changing approaches to this pandemic. To date, the Commission has not made a general pronouncement regarding the compensability of Coronavirus-specific cases. However, the Commission has recently seen its first filings of COVID-19 related cases and carriers are facing a push from Oklahoma legislators to create a presumption in favor of compensability for a select

group of workers; as we have seen developed in other states. Fortunately, the current law in Oklahoma does provide some guidance.

COVID-19 COMPENSABILTY IN OKLAHOMA:

Currently, the Oklahoma’s Workers’ Compensation System provides compensation for “occupational diseases” that arise out of and in the course of employment. The Oklahoma legislature has defined “occupational disease” as “any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee or naturally follows or unavoidably results from an injury.”4 In that sense, a claimant would have to prove a causal connection between the occupation or employment and the occupational disease and a subsequent disability from that disease by a preponderance of the evidence.

However, Oklahoma’s Workers’ Compensation system denies compensability for “any ordinary disease of the peculiar or unique nature of an employee’s job; therefore, no compensation is warranted.

At this stage of the pandemic, it is likely that COVID-19 will be viewed as an ordinary disease of life because untraced community infection is widespread. In such a case, an employee who tests positive would not qualify for Workers’ Compensation benefits. But now, employees who have tested positive for COVID-19, and their attorneys, are challenging that theory.

Ultimately, each case will be treated on a fact-specific case- by-case basis and it will be increasingly difficult to determine how the courts in Oklahoma will address COVID-19 related claims of employees with a heightened level of exposure due to the unique circumstances of their professions; such as first responders, healthcare workers, delivery personnel, and sanitation workers. Still, the claimant will carry the burden to prove by a preponderance of the evidence that contracting the virus, and any subsequent disability resulting therefrom, arose out of and in the course of the occupation or employment.

However, the wide-spread concern of COVID-19’s impact on Oklahoma employees has recently prompted several Oklahoma legislators to request that Workers’ Compensation carriers provide coverage to select employees through a presumption that allows compensation for these workers specifically due to the heightened level of exposure in their profession accompanied with a national shortage of personal protective equipment. The implementation of such a presumption would effectively release the claimant’s burden to prove that contracting the virus occurred during the course and scope of employment shifting the burden to the employer to show that the employee contracted the virus through non-work-related causes.

Eventually, the State of Oklahoma may be called upon to formally address our statutes and its application to all employees or certain professions with heightened exposure. It is also possible that the Commission will be called upon to interpret our current statutes as applied to cases involving the coronavirus.

CONTACT US:

Christensen Law has specialized in Workers’ Compensation defense of employers and insurance carriers for over 35 years. Our firm would be honored to represent your company on any work- related cases. If you have a need, or wish to discuss any specific workers’ compensation related questions, please contact us at Christensen Law.

Additional Resources

1 This document was prepared by the attorneys and staff of Christensen Law, PLLC, Oklahoma City, OK
(March 2020). The information provided herein is not meant to serve as formal legal advice. (Updated December 18, 2020)
2 Guidance on Preparing Workplaces for Covid-19; OSHA 3990-03 2020; Occupational Safety and Health Administration, U.S. Department of Labor, (March 2020)
3 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html
4 85A O.S. § 65