Missouri Workers Compensation Update
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Labor and Industrial Relations Commission upholds a Covid denial of compensability
In what may be the first Covid claim on appeal in Missouri, the Commission affirmed a denial of a Covid exposure claim. Claimant argued that since other people at work had Covid, then he must have contracted Covid at work because he refrained from going out in public during the Covid emergency other than going to work.
The parties submitted ratings ranging from 25% of the body (Dr. Cantrell) to Permanent Total Disability (Dr. Koprivica). Here, Claimant was a truck driver and he testified that he spent 15 minutes with a co-worker who tested positive for Covid close to the same time as he tested positive. He had no other proof of exposure to Covid in the workplace.
The initial issue was whether Covid was an ordinary disease of life, or something different, as that would impact the causation analysis. The ALJ held:
“Since Covid is an ordinary disease of life to which the general public is exposed, the claim can only be compensable if Mr. Johnson's Covid had its origin in a risk connected with his employment. Based on the analysis below, there was no risk identified from working as a load coordinator/night dispatcher that caused Mr. Johnson to contract Covid.”
The ALJ went on to cite case law stating that Claimant has the burden to prove that the disease "arose out of' and "in the course of employment". The ALJ found Claimant failed to carry this burden of proof. In doing so, the ALJ (and ultimately the Commission) denied all medical care benefits, TTD benefits, and permanency benefits.
Also of importance – the ALJ (adopted by the Commission) reached this decision as well:
“The common thread of those cases (other contagious disease cases in Missouri) is that there was a risk inherent in the performance of those jobs that exposed those employees to the hazard of contracting that disease, simply by the normal performance of their job duties. Here, there is nothing about the job of a load coordinator or night dispatcher that would inherently increase the employee's risk of developing Covid. Like many similar jobs, Mr. Johnson primarily did a job working at a desk with a computer and a telephone. He had limited interactions with a small group of the same people on a daily basis, rather than dealing with members of the general public.”
The opinion then does a deep-dive analysis of how other states have dealt with determining whether Covid claims are or are not compensable.
PRACTICE POINTS
This decision will most likely be appealed to the Court of Appeals, and if that occurs I will keep you updated on how this issue is ultimately resolved. For now, though, we can take away several practical points of analysis:
We have a holding that Covid is an ordinary disease of life. That’s important in our quiver of defenses, as that raises the burden of proof for claimants to prove that their Covid diagnosis is compensable.
Examine if the claimant deals with the public at large or simply interacts with co-employees. While dealing with the public does not necessarily mean that the claim must be compensable, that fact will increase the odds of compensability. Likewise, a claimant who only interacts with co-employees, and not the public at large, has a higher burden of proof to carry in terms of proving compensability.
This claim, like any other Covid claim, comes down to the measurement of risk. Did the employment place claimant at a greater risk of contracting Covid. While not specifically referenced in this decision, one method that I have used to defeat the compensability of other Covid claims is by showing outside-of-employment exposure to Covid, primarily through social media posts where a claimant posted about other family members who had Covid at the same time as the claimant.
If you have any questions or concerns that you would like to discuss in light of this decision, please feel free to reach out to me at any time. I am always happy to help.
