Oregon claim processing implications for COVID-19

Allyson Swecker

As our Oregon workers’ compensation industry navigates the impact of the novel coronavirus (“COVID-19”), Reinisch Wilson Weier PC is providing the following starting points to help you review and process COVID-19-related workers’ compensation claims. [NOTE: “COVID-19” is short for coronavirus disease. The actual name of the virus is “severe acute respiratory syndrome coronavirus 2 or SARS-CoV-2.”]

First, does a claim for exposure to or contraction of COVID-19 constitute an injury or an occupational disease? Generally, to establish a compensable workers’ compensation injury claim, a worker must show his or her claim arose “out of and in the course of employment requiring medical services or resulting in disability or death.”[1] A compensable occupational disease claim likewise arises “out of and in the course of employment,” and must be caused by exposure to which an employee is not generally exposed except during his or her regular employment. Similar to a compensable injury, the compensable occupational disease must require medical services or result in disability or death.[2] Though it may seem like “coronavirus” will definitely be considered an occupational disease (it’s in the name, right?), this is not a “given” according to Oregon case law.

In 2011, the Oregon Court of Appeals determined a MRSA infection is not per se an occupational disease, and in fact determined the infection was properly categorized as an injury.[3] The Court pointed to its decision in Weyerhaeuser Co. v. Woda[4] that determined an allergic reaction to sawdust was properly characterized as an injury, rather than an occupational disease. To determine whether COVID-19 is properly considered an injury or an occupational disease, you must first determine if the condition developed gradually or as the result of a discrete event.[5] We anticipate this likely will be a medical question for the experts.

Second, has a physician indicated a necessity for testing and/or treatment of COVID-19? In K-Mart v. Evenson,[6] the Court examined a case in which the claimant filed a claim related to HIV and hepatitis exposure. Although the claimant ultimately tested negative for the conditions, her doctor believed the exposure to HIV and hepatitis required both testing and prophylactic treatment. Times are changing quickly with respect to COVID-19 testing. You must assess whether the claimant is urged by a physician to undergo coronavirus testing, regardless of the test results.

The law has not yet provided a solid answer as to whether COVID-19 will be properly characterized as an injury or an occupational disease, and the determination could potentially vary from case to case. A question essential to a compensability determination for an occupational disease is whether employment is the major contributing cause of the condition developing.[7] The Oregon Court of Appeals previously assessed this question in relation to symptoms of an allergic condition.[8] In Thompson, the Court noted claimant’s exposure was not limited to substances in the work environment. Although there was a greater concentration of “offending substances” on the job and a more intense exposure, the Court found claimant’s off-the-job exposure was substantially similar to that on the job. Because the claimant was unable to establish the concentration and intensity of exposure to allergens at work was the cause of her allergic condition, the Court found work was not the major contributing cause of her occupational disease condition. Though this does not provide a clear answer, we hope it will help as you analyze each individual claim.

The COVID-19 pandemic has posed many unanswered questions. Information is changing daily and likely will continue to do so. During these uncertain times, please do not hesitate to reach out via e-mail and talk through your questions with one of the attorneys at Reinisch Wilson Weier PC. Though our office currently is primarily remote, we continue to work hard to ensure the needs of our clients are met.

See also our other COVID-19 blogs,COVID-19: Indirect impacts on existing Oregon claims andCoronavirus and Washington workers’ compensation.

[1] ORS 656.005(7)(a).
[2] ORS 656.802(1)(a).
[3] Dynea USA, Inc. v. Fairbanks, 241 Or App 311 (2011).
[4] Weyerhaeuser Co. v. Woda, 166 Or App 73 (2000).
[5] Fairbanks, 241 Or App at 318; See also Smirnoff v. SAIF, 188 Or App 438, 446 (2003).
[6] K-Mart v. Evenson, 167 Or App 46 (2000).
[7] ORS 656.802(2)(a).
[8] See In re Thompson, 51 Or App 395 (1981).