Mottaz & Sisk Injury Law

Workers’ Compensation Resource for COVID-19 and Workplace Injuries

As more people are affected everyday by COVID-19, questions arise regarding the compensability of workers’ compensation claims stemming from exposure to the virus in the course of employment. While steps are being taken to minimize the potential exposure, the risk of contracting the virus remains.

New Minnesota COVID-19 Law

In April of this year, Minnesota enacted a law that creates a statutory presumption for the following employees who contract COVID-19 to be “presumed” to be work related:
• a licensed peace officer under Minnesota Statutes, section 626.84, subdivision 1, a firefighter, a paramedic or an emergency medical technician;
• a nurse or health care worker, correctional officer or security counselor employed by the state or a political subdivision (such as a city or county) at a corrections, detention or secure treatment facility;
• a health care provider, nurse or assistive employee employed in a health care, home care or long-term care setting, with direct COVID-19 patient care or ancillary work in COVID-19 patient units; and
• a person required to provide child care to first responders and health care workers.

Rebutting the Presumption –

While the law allows, for purposes of workers’ compensation, to initially assume that contraction of the virus was work related, the presumption can be rebutted. In other words, the insurer can deny the claim if substantial evidence can be presented to rebut the presumption that the virus was contracted at work and not the direct cause of the disease.

Rebutting the presumption often happens if workers’ compensation obtains an adverse report. As such, even though an employee falls within the above categories, it is important for the injured worker to have some understanding of how they contracted the virus and they have support to document COVID-19 exposure at work. Discussing your case with an experienced attorney who understands occupational diseases and the nature of proof necessary to obtain benefits is recommended, especially during this uncertain time.

These changes to the workers’ compensation act designate that the “presumption” will end May 1, 2021, for any new COVID-19 cases.

The following information addresses some common questions about COVID-19 and the workplace. Please contact our office for a free initial consultation if you would like more information about your specific situation.

FAQs About COVID-19 and the Workplace

  • Can a diagnosis of COVID-19 be a work injury?

    Yes. If you have been exposed to and contract COVID-19 at work as result of your work activities, you are eligible to file a workers' compensation claim. This type of injury falls under the category of an "occupational disease" under Minnesota workers' compensation law. COVID-19 is not an ordinary disease, such as the flu or a cold, but instead a serious respiratory illness that can be fatal. To prove a compensable work injury, the injured worker must prove the following elements about the virus/occupational disease:

    (1) it arose out of and in the course of the employment;
    (2) there is a direct and proximate causal connection between the conditions under which the work is performed and the virus/disease, and
    (3) that the virus/disease follows as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment.

  • Who is more likely to be exposed to COVID-19 as result of their work activities?

    Healthcare workers. Doctors, nurses, pharmacists, nurse assistants, and all other healthcare workers treating and interacting with patients with COVID-19 are at risk of becoming infected and should have a strong claim for workers’ compensation if they become ill. Healthcare workers, even if they are not working directly with known COIVD-19 patients, have a higher risk than the general population of being exposed and should be covered by workers’ compensation if they become sick.

    First responders. EMTs, firefighters, and law enforcement officers are required in their jobs to encounter people who may be infected, putting them at risk. If a first responder contracts COVID-19, he or she should be covered by workers’ compensation.

    Nursing home employees. Workers who support our most vulnerable population, whether they are healthcare workers, housekeeping staff, or food service employees, are also on the front lines of this virus.

    Hospital workers. COVID-19 can live on surfaces for several days. That means that the people who clean-up after patients in hospitals and clinics are facing hazardous conditions and are at a higher risk of becoming infected with the virus.

    Factory workers/Meat packers. In some cases, factories lack the ability to have appropriate separation which causes many workers to work near one another. Additionally, if the factory has poor ventilation or inappropriate handwashing facilities, the workers are at a higher risk of contracting the virus because of their work.

    Delivery Drivers. Potential sources of exposure include having close contact with individuals with COVID-19 when picking up or delivering food or groceries, or by touching surfaces touched or handled by a person with COVID-19. This places these types of workers at an increased risk.

  • What do I do if I have been exposed to COVID-19 at work?

    If you have been exposed at work to an occupational disease, such as COVID-19, make sure to follow these steps to ensure your chances that workers' compensation will accept your injury and to get the proper medical treatment.

    Get Medical Treatment

    The most important thing to do is to make sure you are taking the appropriate steps to treat the symptoms and to self-quarantine to prevent spreading the virus to others. Currently, there is no vaccine and no treatment for COVID-19. While this may be the case, it is recommended you contact your health care professional immediately to discuss treatment options. Make sure to discuss with the doctor where you believe you contracted the virus, so it gets appropriately documented.

    If it is an emergency, contact your hospital or clinic before going so they can be prepared for your arrival. If you are tested for COVID-19, the results should be passed along to your employer or workers' compensation insurer. If a laboratory test is not available, make sure you get diagnosed by a licensed physician, licensed physician's assistant, or licensed advanced practice registered nurse (APRN), based on your symptoms.

    If you have any of these emergency warning signs for COVID-19, get medical attention immediately:

    • Trouble breathing
    • Persistent pain or pressure in the chest
    • New confusion or inability to arouse
    • Bluish lips or face

    This list is not all possible symptoms. Please call your medical provider for any other symptoms that are severe or concerning to you.

    Report Your Injury

    It is important that you report your injury to the employer by informing them you were exposed to COVID-19 at work. It is best practice to inform your employer in writing and keep a copy for yourself as well. However, the law just requires that notice be given so a reasonable person would know that you had a work-related injury. Therefore, telling your supervisor - either over the phone, in person, by text or email - would be sufficient. Notifying your employer allows them to take steps to limit the spread of the virus. It also allows the employer to provide medical treatment when appropriate to minimize the seriousness of the exposure.
    The date of injury for an employee who has contracted COVID-19 is the date the employee was unable to work due to contraction of COVID-19, or was unable to work due to symptoms that were later diagnosed as COVID-19, whichever occurred first.

    Contact a Lawyer with Questions

    We are certainly dealing with trying times. There is no reason to go at this alone. A consultation with one of our lawyers is free. This means you pay nothing to get free legal advice. The consultation can be done over the phone or by video conference.

    Our lawyers are dedicated to helping those that contact our office and will provide sound legal advice. Even if you may feel you do not need a lawyer, just talking with an attorney who understands the law may put you at ease or even provide you with some helpful advice that you may not have known otherwise. Call today to schedule your free consultation.

  • How to File a Coronavirus (COVID-19) Workers' Compensation Claim?

    When you are injured, it is the responsibility of the employer to report an alleged injury, regardless of whether the employer agrees with the claim. The employer is responsible for completing a form called the First Report of Injury (FROI). If the employer is unable or refuses to file this form, the Minnesota Department of Labor and Industry may request that the insurer prepares one.

    The employer is to submit the FROI or First Report of Injury to the workers' compensation insurer within 10 days. From there, the insurer is responsible for electronically filing the FROI with the Minnesota Department of Labor and Industry within 14 days of the first day of disability or the date the employer was aware of the disability. Deaths and serious injuries must be reported to the Department within 48 hours. The insurer should always send you a copy of the FROI for your records.

    If you are injured, make sure you get a copy of the FROI to confirm the information is accurate. If the employer or insurer fail to provide you with a copy, notify the Minnesota Department of Labor and Industry and request a copy from them.

    After your claim has been filed with the insurer and the Department of Labor and Industry, you should receive information from the insurer.

    The insurer must admit or deny liability within 14 days of notice or knowledge of the injury. They must also file a Notice of Insurer's Primary Liability Determination (NOPLD).

  • Can my employer retaliate against me for filing a workers' compensation claim?

    No. An employer is not allowed to retaliate against you for filing a workers' compensation claim.

    Under a state health law, if you have contracted or been exposed to COVID-19 and the Minnesota Department of Health (MDH) recommends that you stay home (isolate or quarantine yourself), your employer may not discharge, discipline or penalize you for missing work. This protection also applies if you need to care for a minor or adult family member for whom MDH recommends isolation or quarantine. (The adult family member must have a disability or be a vulnerable adult.) This employment protection is available for 21 workdays. For more information, call the number MDH will give you with its recommendation.

    Under Minnesota law, specifically, Minn. Stat. § 176.82, an employee may bring an action for civil damages based on a retaliatory discharge. Any injured worker discharged or threatened to be discharged for seeking workers’ compensation benefits, or in any manner intentionally obstructing the injured worker from seeking workers’ compensation benefits, would be liable in a civil action for damages incurred by the employee, including any reduction in the workers’ compensation benefits caused by the violation such as costs, reasonable attorney fees, and punitive damages not to exceed three times the amount of any compensation for which the employee would be entitled to.

    The Minnesota Human Rights Act (MHRA) protects employees from discrimination on the basis of disability, race, national origin, age and other protected classes. Individuals with disabilities have the right to request “reasonable accommodations” from employers that are subject to the Americans with Disabilities Act and/or the MHRA.

  • What should I do if I have a preexisting condition that makes me more vulnerable to the impact of COVID-19?

    If you have a disability that affects your risk for contracting COVID-19, or being harmed if you do contract the virus, you have the right to request a reasonable accommodation from your employer. For example, employees with disabilities that put them at higher risk for complications related to COVID-19 may request telework or use paid/sick/unpaid leave as a reasonable accommodation to reduce their chances of infection during a pandemic.

    Employers may ask employees if they are experiencing influenza-like symptoms, such as fever or chills, and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with state and federal law.

    During a pandemic, employers may not ask employees who do not have known or apparent influenza symptoms whether they have a medical condition the Centers for Disease Control and Prevention (CDC) says could make them vulnerable to influenza complications. Under no circumstances may an employer make decisions based on stereotypes or bias.

    If employees voluntarily disclose to their employer that they have a medical condition or a disability that places them at higher risk of COVID-19 complications, the employer must keep this information confidential.

    Employers may not assume employees with known medical conditions or disabilities are at heightened risk of complications from COVID-19. For more information about pandemic preparedness in the workplace and relevant legal requirement for employers, visit here.

    The Minnesota Department of Human Rights is the state’s civil rights enforcement agency and enforces the MHRA. If you believe you have been discriminated against, contact the department at 651-539-1133, 800-657-3704 or info.mdhr@state.mn.us or complete a consultation inquiry form here

  • How long do I have to file a workers' compensation claim for COVID-19?

    There are several factors that determine how long you have to file a workers' compensation if no benefits have been paid.

    Notice

    Notice is required when you believe, or you have been told by doctors, that you have a work related injury. To receive Minnesota worker's compensation benefits, you must show you provided notice of the injury to the employer, or that the employer had actual knowledge of the injury, within 180 days as allowed under Minnesota Statute §176.141. This does not require that you fill out any paperwork or a First Report of Injury, but instead that you provide notice either verbally or in written form.

    If notice was not given timely, the claim may be barred.

    First Report of Injury

    If any benefits have been paid in the past, then the injured worker would be able to bring a claim at any time during the life of the claim. This means that an injured worker can bring a claim at any time for workers’ compensation benefits if those benefits continue to remain open.

    If no benefits have been paid, then the question turns as to whether a First Report of Injury has ever been filed with the Department of Labor and Industry. If a First Report of Injury has been filed, then the injured worker would have three years from the date of injury to bring a claim. If the claim is not brought within those three years, then the injured worker would be forever barred from bringing a claim.

    If a First Report of Injury has NOT been filed, then the injured worker would have six years from the date of injury to bring a claim.

  • As with any type of work injury, you may be entitled to workers' compensation benefits. Although the law controls the specific amounts, duration, and types of benefits in effect at the time of the injury, there are four main types of benefits available to an injured worker.

    Wage Replacement Benefits

    Temporary total disability benefits (TTD). TTD benefits are a form of compensation available to an injured employee who is unable to work because of the work injury, or who is released to work with restrictions but is unable to find work within those restrictions. The TTD rate is two-thirds of the employee's gross wage at the time of the injury, subject to certain maximum and minimums. The most you can receive is 130 weeks of TTD.
    Temporary partial disability benefits (TPD). TPD benefits are partial wage loss compensation for an injured employee who is back to work but is earning less than the date of injury wage because of a work injury. TPD is calculated at two-thirds of the difference between the pre-injury wage and the employee’s current ability to earn. The most you can receive is 275 weeks for up to 450 weeks after your date of injury.
    Permanent total disability benefits (PTD). PTD benefits are wage loss compensation where the injured employee’s physical disability causes the employee to be unable to find anything more than occasional employment resulting in insubstantial income. This means that the worker cannot secure a steady job and earn a living from work. The rate payable for PTD benefits is two-thirds of the employee’s gross weekly wage at the time of the injury.

    Functional Impairment or Permanent Partial Disability Benefits (PPD)

    Permanent partial disability or “permanency” is a payment for the loss of use of, or the loss of body function. These benefits are paid according to the compensation schedule established by the Workers’ Compensation Division. The amount and duration of the benefit are controlled by the permanent partial disability rating. It may be payable in one lump sum or in weekly increments. In cases where there is no specific schedule for that injury, the courts have allowed what is called a “Weber” rating. Under Weber, a doctor may provide an alternative permanent disability rating.

    Depending on the severity of the COVID-19, there may a disability rating for lung or vascular damage.

    Medical Benefits

    The employer and insurer are responsible for payment of “reasonable and necessary” medical treatment, which will aid in curing or relieving the effects of the work injury. Covered treatments include hospitalization, surgery, physical therapy, occupational therapy, chiropractic services, injection therapy, chronic pain management and many other forms of medical care. The right to receive these benefits may be impacted by the Minnesota Workers’ Compensation Treatment Parameters depending on various factors including whether the injury is admitted or denied.

    Vocational Rehabilitation Benefits

    Vocational rehabilitation benefits are designed to assist the injured worker returning to former employment or to a job related to that employment. In the alternative, rehabilitation services assist the injured employee to return to a job in another work area, which produces an economic status as close as possible to that enjoyed but for the disability. This assistance may include direct job placement, on-the-job training, or formal retraining. Rehabilitation services can include the use of a Qualified Rehabilitation Consultant (“QRC”) to help with medical management, return to work, and job placement.

    Not Covered

    Workers' compensation does not cover pain and suffering, loss of consortium, loss of insurance, or loss of 401k.

  • If you have been denied Minnesota workers’ compensation benefits related to COVID-19, then it is important to talk with a workers’ compensation attorney right away. An attorney can walk through with you the steps to take to get you workers’ compensation benefits. The next steps will depend on the denial, the type of benefits requested and the benefits that have been paid.

    There is no cost to meet with an attorney to discuss your workers’ compensation case. We do not charge a fee unless you retain our office and we are able to recover disputed benefits on your behalf. This means if you retain our office and during the life of your claim, we do not recover any disputed or new benefits, you will not owe us anything. Even if there is no dispute, we will monitor your case and make sure to advise you on important issues.

    Minnesota workers’ compensation attorney fees are handled on a contingency basis. No fee is owed unless we can recover additional workers’ compensation benefits or a settlement. For injuries before October 1, 2013, attorney fees would be paid on a contingency basis of 25% of the first $4,000 and 20% thereafter. For injures after October 1, 2013, the law changed to 20% of workers’ compensation benefits are paid to the attorney.

    In the case that there is no money paid directly to you, whether it be wage loss, permanency or a settlement, and in a situation where we recover medical or rehabilitation benefits on your behalf, we are allowed to have the insurance company pay our hourly fees.

    Call or contact our office today for a free consultation.

  • What protections do I have as an employee?

    Minnesota employers are to provide a place of employment which is free from recognized hazards that are causing, are likely causing or are likely to cause death or serious physical harm. Employees are protected by a number of state and federal laws. These protections are further discussed in the following documents:

  • Are employees entitled to workers’ compensation benefits if they are exposed to COVID-19 at work and are required by their employer to self-isolate?
    If an employee was exposed at work and later contracted COVID-19, the illness may be a workers’ compensation injury. However, if there was no exposure at work resulting in the diagnosis of COVID-19, then no workers' compensation benefits would be available.
  • Can an injury working remotely be covered under Minnesota workers' compensation?

    Yes, if it meets the required legal standard. Due to the ongoing COVID-19 pandemic, many employees have been encouraged or required to work remotely. This has required many to "set-up shop" in home offices, kitchens or spare bedrooms. Home spaces are now becoming workspaces.

    The legal standard used in Minnesota is whether the injury "arose out of and occurred in the course and scope of employment". Compensability will largely depend on the facts of each case. Important factors include:

    • Did the injury occur during working hours?
    • Did the injury occur during the performance of a work activity?
    • Did the injury occur in a location the employee was allowed to be?
    • Was the employee performing an activity in furtherance of the employer’s business or affairs?

    Even injuries attending to personal needs while at home may still be compensable. For example, an injury sustained while going to use the restroom while working during office hours maybe a work-related injury. Minnesota Supreme Court has held that acts of an employee necessary to life, comfort, or convenience while at work, although personal to him or her and not technically acts of service, or incidental to the service, and injury arising while in the performance of such acts is compensable. Typically, these include lunch breaks, bathroom breaks, smoke breaks or even coffee breaks.

    These cases can be complex and it is important apply the correct law and legal standard to the facts. Speaking with an experienced attorney is recommended to better assess whether an injury while working remotely is a compensable injury.

Contact a Lawyer with Questions

We are certainly dealing with trying times. There is no reason to go at this alone. A consultation with one of our lawyers is free. This means you pay nothing to get free legal advice. The consultation can be done over the phone or by video conference.

Our lawyers are dedicated to helping those that contact our office and will provide sound legal advice. Even if you may feel you do not need a lawyer, just talking with an attorney who understands the law may put you at ease or even provide you with some helpful advice that you may not have known otherwise. Call today to schedule your free consultation.

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