41 Trial Lawyer • Summer 2022 tional disease and further requires that the workplace exposure is the major cause of the condition itself. Regardless of how the condition is classified, the claim is analyzed under the injury standard if the harm arises over a discrete period of time.3 Since COVID has a discrete incubation period and is not known to require multiple exposures that build up gradually over time, it is expected that COVID claims will be analyzed as occupational injuries. Further support for this analysis is found in the definition of occupational disease in ORS Chapter 656, which refers to, “substances…to which a worker is not ordinarily subjected or exposed other than during a period of regular actual employment therein.”4 Exposure to pathogens that are widespread in the community does not fit within this definition. The evidence Most workers will have some potential exposure both on and off of work. Because there will normally be multiple potential sources of COVID exposure, it is expected the worker will need expert testimony that evaluates the potential sources to establish that the workplace exposure is at least a material cause of the subsequent disability or need for treatment.5 The worker’s expert need not rule out all hypothetical causes, so long as the opinion contains sufficient information on which to base the opinion and does not exclude information that would make the opinion less credible.6 However, in the Tri-Met litigation referenced above, both the ALJ and the Workers’ Compensation Board agreed with the defense’s position and rejected the workers’ unrebutted evidence, because some of the worker’s off the job activities within the incubation period were not considered by the expert, specifically a trip to the grocery store.7 The Court of Appeals reversed the Board and remanded the claim for further review.8 The court concluded that the Board’s analysis was not supported by substantial reason because the Board did not explain why a trip to the grocery store that was unknown to the worker’s expert was significant enough to render the expert’s ultimate conclusion unpersuasive. The court adhered to its prior decision on reconsideration, but the deadline for the defense to file a petition for review has not passed. While the outcome of this particular litigation is unknown, we know that the most persuasive medical opinions will address the relevant on and off work exposures during an identifiable incubation period leading up to the onset of symptoms. The opinion generally will not be found persuasive if the expert relies solely on statistics or on disproving other possible causes.9 Therefore, the expert will need to couch his or her opinion in terms of the worker’s specific activities on and off work and explain why it is more likely than not that an exposure occurred at work, instead of reaching the conclusion solely based on the process of elimination. Data on workplace outbreaks The Oregon Health Authority (OHA) publishes weekly reports regarding workplace outbreaks of five or more COVID-19 cases.10 OHA has also published an FAQ regarding this data, which states that OHA defines a workplace outbreak as five or more people who have COVID-19 associated with a single worksite.11 The cases must be clustered in time, with two or more diagnoses occurring within 14 days. It is important to know that those counted in the outbreak may be family members or close contacts of workers, and that OHA only tracks outbreaks for employers with over 30 workers. I spoke to Jennifer Flood, the ombudsman for injured workers at the Workers’ Compensat ion Division (WCD), about her efforts to obtain data regarding COVID-19 fatalities related to workplace outbreaks in order to notify surviving family members of their right to file a claim. She reported she receives notice from the Oregon Occupational Health and Safety Administration (OROSHA) if a complaint has been filed involving a deceased worker with COVID-19. However, she acknowledged many cases will not be reported to OROSHA. In the cases where she is notified, she sends a letter to the next of kin to advise the family of their rights and the resources available through her office. In the 2022 short session, the Oregon Legislature passed SB 1585, which has now been signed into law. The new law requires OHA to provide the ombudsman’s office with contact information for deceased workers who were involved in a workplace outbreak. Flood reported that OHA and WCD are working on tailoring the disclosures to include only the employees and not the other contacts. She hopes this will enable her office to contact more family members of deceased workers. She was clear that her office is not advising the family members to file claims, only of the right to do so and the option to obtain legal counsel. WCD is also publishing data regarding workers’ compensation claims that have been filed for COVID-19.12 This data has been sorted by insurer and by industry. The data shows the number of See COMP & COVID 42
RkJQdWJsaXNoZXIy Nzc3ODM=