42 Trial Lawyer • Summer 2022 claims filed, whether they involved a fatality, and whether the claims were accepted or denied. The data does not include nondisabling claims, which means that all of the reported claims involved payment of wage loss. The politics of presumption Throughout the summer of 2020, OTLA worked with our allies in organized labor to spearhead legislation that would make it easier for essential workers in high-exposure positions to establish medical causation in a workers’ compensation claim. The legislation we proposed would have created a rebuttable presumption that some workers were more likely than not infected on the job because their work was so essential they were required to continue working onsite while everyone else worked from home or closed shop. Other states, including California andWashington, have recognized the risks faced by essential workers and have passed presumption legislation for frontline workers. We argued that Oregon’s essential workers deserved similar protections. Oregon is unique because all workers’ compensation legislation is vetted by a Management Labor Advisory Committee (MLAC). Prior governors have indicated they would veto any legislation that has not been approved by MLAC. Many legislators also express unwillingness to vote for bills that have not received MLAC approval. After a number of very contentious meetings, our legislation was blocked by the MLAC members, who concluded that workers were not in need of additional protection despite the additional risks they were facing. At the time, we predicted that large self-insured employers would be more aggressive in denying claims, and that the defense would always be that it is just impos s ibl e to say where a given COVID-19 case originated within reasonable medical probability. In the first year of the pandemic, it was difficult to find clients to provide first-hand accounts of how difficult it could be to contest a claim denial even when the workplace exposure is clear. Unfortunately, our members are now seeing more of these cases. In the past six months, our firm has been retained by the survivors of two workers who died after exposures to known COVID positives at the workplace and no other known positive exposures. Both employers are self-insured. The defense in both cases is we don’t know enough to assign a cause under the legal standard. Essential workers and their families deserve better protection and more certainty after putting themselves at risk each day to keep society going during a pandemic. It is shameful that Oregon lawmakers did not have the political will to step up for them. As is so often the case, that will now fall to us and it will be an honor. Keith Semple specializes in workers’ compensation law. He is a member of OTLA Guardians of Civil Justice at the Sustaining Member level. He is an associate with Johnson Johnson Lucas and Middleton, 975 Oak St. Ste. 1050, Eugene, OR 97401. He can be reached at 541-4842434 or ksemple@justicelawyers.com. 1 ORS 656.262(4)(a) 2 K-Mart v. Evenson, 167 Or App 46, 50 (2000). 3 Id. 4 ORS 656.802(1)(a) 5 Barnett v. SAIF, 122 Or App 279 (1993). 6 Jackson County v. Wehren, 186 Or App 555 (2003). 7 Diane M. Rogers, 72 Van Natta 919 (2020). 8 Matter of Compensation of Rogers, 317 Or App 116 (2022). 9 Seely v. Sisters of Providence, 179 Or App 723 (2002). 10 www.oregon.gov/oha/erd/pages/covid-19-news. aspx 11 OHA 2390N (8/17/2021) https://sharedsystems. dhsoha.state.or.us/DHSForms/Served/le2390n. pdf 12 https://wcd.oregon.gov/Pages/COVID-19-updates. aspx COMP & COVID Continued from p 41
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