When workers get sick with Covid, should workers compensation pay up?

SAIF headquarters near downtown Salem on Monday. (Troy Brynelson/Salem Reporter)

In March, Jay Pinkerton, a Salem police officer, fell ill with Covid-like symptoms.

While on patrol, Pinkerton responded to calls including motor vehicle accidents, domestic disturbances and unsheltered people blocking the pedestrian bridge.

After falling ill, he was tested for Covid. His first test for the virus was done incorrectly. But the second confirmed he had it.

Pinkerton filed a workers’ compensation claim with the city. But it was denied, according to a letter he submitted to a legislative committee in May describing his story.

“As a consequence of the denial, I am forced to use my own sick leave in order to maintain a reasonable cash flow for my household,” said Pinkerton in the letter. “In order to get my medical care paid for, I at present use my group health insurance and am liable to pay all co-pays and deductibles.”

He said in his letter that he wouldn’t be compensated if he had long-term health effects from contracting the virus.

Situations like Pinkerton’s, and other frontline workers at greater risk of contracting the virus, could be on the minds of lawmakers when they convene for a special session that begins Monday, Aug. 10.

Policymakers are considering whether to revamp the state’s workers’ compensation system for the pandemic. The central question has been whether there should be a presumption that frontline workers who test positive for the virus contracted it while on the job. The presumption would make it easier for workers like Pinkerton, whose lawyer did not make him available for an interview, to have workers’ compensation claims approved.

In Oregon, employers are required to carry workers compensation insurance, which pays workers injured on the job for lost wages and medical bills.

In June, Gov. Kate Brown tasked the state’s Management and Labor Advisory Committee, a group of representatives from business and labor interests that advises state government, with looking into creating a similar presumption, among other issues.

According to Brown’s letter asking the committee to look into the issue, 17 other states have presumptions in their workers compensation system related to Covid.

Business interests say that the system is working as intended.

“The proposals we have seen for a presumption would operate much more like a guarantee of claim acceptance, even where there may be evidence the employee was more likely to have been exposed at home or at social gatherings,” said Paloma Sparks, vice president of Oregon Business & Industry,  in a letter to the committee. “Such a proposal risks the stability and balance of the workers’ compensation system. And it would unfairly burden the system.”

Another letter from a coalition of agriculture business interests pointed out  the coronavirus is highly communicable and it’s hard to pinpoint where a worker contracted it. The letter pointed out that the flu is not covered by the workers’ compensation system.

In Oregon, most employers are covered by the State Accident Insurance Fund Corp., a nonprofit company commonly referred to as “SAIF.” Data submitted to the committee shows that as of July 10, 86% of 426 Covid-related claims submitted to SAIF were approved. Of the total 557 worker compensation claims included in the data, 74% were approved.

Lauren Casler, spokeswoman for SAIF, said in an email that the company treated Covid as an injury, not a disease.

“For workers who come into contact with an infected customer or patient at work, SAIF generally accepts the claim and pays benefits,” she said. “Overall, where the laws and rules are silent or permissive, SAIF is making decisions that favor the worker.”

But the approval rate is not as high for self-insured employers. For Providence Health & Services, a large health care system that serves Oregon and Washington that’s self-insured, just three out of its 44 claims were approved.

Salem Health is insured by SAIF. A spokesman for the health care provider said that it is not calling for any changes to the state’s workers’ compensation system.

The city of Salem is self-insured. Data shows that the city has had just one workers’ compensation claim submitted to it, which was denied. The name of the claimant is not mentioned.

A letter Marcus Pitts, Salem’s risk manager, submitted to the committee said that each claim is administered by an outside administrator and legal advisors and decisions are made on medical documentation and evidence.

The city is offering free testing to employees. The city is also paying up to 80 hours of full wages to workers for Covid-related time off. A city spokeswoman said in an email that there hasn’t been a change in the number of claims since Pitts submitted his letter.

Arthur Towers, political director for the Oregon Trial Lawyers Association, said that his group will be calling for additional whistleblower protections for employees who report unsafe working conditions or file worker compensation claims related to Covid during the session. 

“The culture we are seeing in the private sector is, see something? Shut the heck up,” he said.

Labor organizations are also pushing for changes to the state’s workers compensation system.

But after concluding its work on the issue, the Management and Labor Advisory Committee sent Brown a letter that didn’t make any conclusive recommendations on whether there should be presumptions on claims, said Towers.

How the state handles workers compensation could affect one critical part of the state’s reopening.

Lori Sattenspiel, director of legislative services for the Oregon School Boards Association, said they want Oregon legislators to temporarily limit liability for school districts if employees or students fall ill after in-person classes. She also said that the workers compensation system should cover school workers who fall ill.

Sattenspiel said school district liability insurance doesn’t typically cover communicable diseases, and districts can’t buy policies now because no companies are offering such coverage. That’s largely because they don’t have any data to quantify the risk of infection and set premium prices.

“It’s a lot like trying to buy terrorism insurance after 9/11,” she said.

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Contact reporter Jake Thomas at 503-575-1251 or [email protected] or @jakethomas2009.