40 Trial Lawyer • Summer 2022 By Keith Semple OTLA Guardian As the COVID-19 pandemic forced the closure of many businesses and worksites in March 2020, a new phrase started to circulate — “essential worker.” It is not often that we stop to consider which workers and industries are most essential to our basic survival, but the issue was suddenly inescapable. So much about the virus was unknown, but it was clear at the outset that certain types of work were so essential that some workers would be required to continue working on-site regardless of the risk involved. From the outset, OTLA’s workers’ compensation attorneys knew a certain percentage of workers would be exposed to or infected by COVID-19 as a result of contacts at the workplace. Even among those fortunate enough to escape death or serious illness, there would be wage losses from forced quarantines. Discussions of how these issues would be handled under Oregon’s workers’ compensation laws was of urgent concern among OTLA’s Workers’ Compensation Policy Group when we met telephonically shortly after the Governor’s State of Emergency Declaration. This was not the first time workers were exposed to the likelihood of contracting a widespread infectious disease at the workplace. OTLA Guardian Jodie Phillips Polich had recently argued a workers’ compensation case for Diane Rogers, a Tri-Met bus driver who had contracted influenza A on the job. While the outcome was unknown at the time, the defense argued that even with unrebutted medical evidence, the worker should not prevail without a medical opinion that identifies and rules out every conceivable off-work exposure. If this analysis were adopted, it would erode prior precedent and place a nearly impossible burden on the worker. Legislation that would provide a presumption of exposure and causation for essential workers was desperately needed. We knew it would be very difficult for workers to find a doctor who would opine on the most likely source of a given case, and that it would be comparatively easy for the defense to find doctors who would opine that it was impossible to say, even if the workplace exposure to known positive cases was obvious and extreme. There are still a lot of unknowns about how COVID claims will be analyzed because contested claims are still working their way through the system, and we have no reported decisions on this particular disease. However, we expect most of the analysis will be similar to other infectious disease cases. The diagnosis A COVID-19 diagnosis is not required for workers’ compensation benefits to be payable. If a worker files a claim, wage loss benefits are payable within 14 days unless the claim is denied prior to that date.1 Those benefits would continue unless and until the claim is denied. To contest a claim denial for other benefits beyond wage loss during the investigation, the worker would need to prove that the workplace exposure resulted in a harm, damage or hurt that requires medical services.2 This should cover cases where the worker is forced to quarantine due to a workplace exposure, but ultimately tests negative for COVID-19. The burden of proof In any workers’ compensation claim, the first issue is whether the claim is analyzed as injury, which requires the work exposure be a material cause of the need for medical services or an occupaKeith Semple What We Think We Know COMP COVID &
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