Hundreds of Ohioans seek workers’ comp for COVID-19

Hundreds of Ohioans have filed for workers’ compensation alleging they contracted COVID-19 on the job, but many claims have been dismissed or denied and some attorneys say it can be tricky to prove people became infected at work.

"It is nearly impossible to show that an infected person coughed or breathed on you, and the result was COVID," said Dave Nager, managing partner of Nager, Romaine & Schneiberg Co. in Cleveland. "In fact, how would you be able to obtain the other person's privacy-protected medical records?"

But the Ohio Bureau of Workers’ Compensation (BWC) says it has created a special team to review and evaluate COVID-19 claims to ensure that workers who were sickened on the job get the payments and benefits they are entitled to.

"We do have a team in place. We want to be sure since this is a new item for us, and it's a new occupational disease we are reviewing, that we have consistency throughout the state," said Stephanie McCloud, administrator and CEO of the Ohio Bureau of Workers' Compensation.

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Between March 11 and June 23, Ohio BWC received 456 claims from Ohio workers alleging they became ill from on-the-job exposure to the virus.

BWC accepted and approved 171 of those claims, meaning the state system agreed to pay medical costs or compensation for lost time and wages if employees could not return to work.

BWC denied 68 claims, 156 were dismissed and 61 were still pending.

Additionally, workers filed 208 COVID-19 claims with self-insured employers, which means BWC is not involved in the claim decisions. About half were approved, 55 were denied and 50 were still pending.

Most communicable diseases such as the common flu and strep throat are not covered by the state workers’ compensation system.

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To be an occupational illness, people must get sick at work and the conditions of their employment must put them at a higher risk of becoming ill than the general public, McCloud said.

“The flu, the common cold … everybody has the same degree of risk for those overall, because they are common,” she said.

Officials say certain occupations increase the chances that people will be exposed to the coronavirus.

For instance, about 14% of Ohio's COVID-19 cases are health care workers and so are at least 15% of Montgomery County's cases, according to data from the state and Public Health — Dayton & Montgomery County.

Of the 664 workers’ compensation claims submitted to BWC and self-insured employers, more than 80% came from first-responders and health care workers.

BWC basically has received 300 COVID-19 claims, because the rest were dismissed, said McCloud, which would mean the agency has approved 2.5 claims for every claim it has denied.

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Ohio BWC has denied about 23% of claims, compared to 45% of claims in Florida and 21% of claims in California, according to a June 11 article on WorkCompCentral.

Most dismissed claims in Ohio were withdrawn voluntarily because they were duplicates, filed in error or they did not include the required first report of injury, McCloud said.

Some claims were withdrawn because they came from Ohioans who mistakenly believed they were filing for unemployment compensation benefits.

Most claims BWC has denied did not actually contain a diagnosis of COVID-19, McCloud said.

Workers believed they had the disease but did not present any supporting medical evidence such as positive test results or a doctor’s opinion, McCloud said.

“It’s hard to allow a claim for COVID when there is no evidence of COVID,” she said.

BWC’s claim examiners look closely at the specific facts of every case and often do a significant amount of investigation, including speaking to the workers, their employers and physicians, McCloud said.

The special team focused on COVID-19 claims uses a fact-driven process to make their determinations, she said.

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Ohio workers filed about 96,600 state fund BWC claims in fiscal year 2019, according to the agency.

But occupational illnesses are always difficult to prove because it's hard to show definitively the exposure happened at work and did not come from another source, said Todd Miller, a certified specialist in workers' compensation law in Dayton.

Workers’ compensation is an adversarial system because injured workers have the burden of proving their claims, said Miller fo Todd Miller Law LLC.

Oftentimes, he said, workers need a medical opinion stating their injuries or illnesses came from their job, even when it’s pretty clear that’s what happened.

Workers who believe they became infected at work should seek medical treatment or testing as soon as possible to help support their claims, he said.

“The longer you wait and the more people you are exposed to, the harder it becomes to narrow down the source of your exposure,” he said. “If you test positive, you may even want to have the people that you live with tested to eliminate them as a source of the transmission.”

Nager, whose law firm represents about two dozen infected workers, said he believes many workers are becoming ill on the job, but it is difficult to prove that their workplace was the direct cause.

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Fortunately, he said, BWC has taken a fairly liberal approach to assessing COVID-19 cases, and it has approved most of his clients’ claims.

But employers who appeal the decisions to the Ohio Industrial Commission may be able to prevent workers from getting benefits since hearing officers tend to have a more narrow view of causation, he said.

Employers have a significant incentive to appeal the cases because they may be charged higher workers’ compensation premiums if their employees are approved for benefits.

Essential workers who have been on the front lines have a greater risk of infection than workers who were able to shelter in place and work remotely from home, which means their claims should be approved as occupational diseases, he said.

Nager said his clients included people working in fast food, food service, trucking, as well as firefighters, EMTs and corrections officers.

“The BWC and employers who profited from those workers should take the responsibility of taking care of them,” he said.

BWC has tried to help employers during this unprecedented public health crisis by issuing nearly $1.6 billion in dividend checks, which is equal to 100% of the premiums they paid in policy year 2018, McCloud said.

BWC also says it has distributed nearly 4 million masks to employers to help improve workplace safety, and the bureau has 5 or 6 million more masks in the pipeline and has put out a bid for another 13 million masks.

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