MN Needs a First Responder COVID-19 Work Comp Presumption
03.31.2020 Written by: Henningson & Snoxell, Ltd.
UPDATE: Henningson & Snoxell Attorney Mary Beth Boyce worked with key stakeholders over the past week to craft the language behind first responder COVID-19 presumption legislation. The MN House and Senate will vote to pass this legislation tomorrow, April 7, 2020.
Recent legislation failed to include provisions that would protect first responders should they contract COVID-19 while on the job. In other words, right now in Minnesota, if a first responder contracts COVID-19 while on the job, work comp will not cover it. This affects all firefighters, police officers, paramedics, corrections officers, nurses, and other healthcare workers – all of whom are on the front lines of the pandemic.
For my first responder clients, given the projected high rates of infection, the question for many is not if, but when, they become infected. The State of Minnesota needs to immediately enact a workers’ compensation presumption that protects First Responders who contract COVID-19.
Either the Legislature needs to act to right this wrong, or Governor Tim Walz should correct this oversight.
Why do we need a legal presumption?
Work comp insurance companies – even self-insured public entities such as cities or counties – do not act out of the kindness of their hearts. A legal presumption shifts the burden of proof from the employee to the employer and insurer. A legal presumption shifts the burden of proof from the employee to the employer and insurer. The presumption should provide that if a first responder develops COVID-19, then this disease is presumed to be work-related. Otherwise, the First Responder must show by a preponderance of the evidence that his or her condition is work-related. The employer and insurer will be able to deny these claims and instead point the finger at non-work-related exposures as the cause of the disease. These legal battles can last months and involve complicated issues with obtaining proper medical support from medical providers.
Workers cannot depend on insurance companies to do the right thing, even during a national crisis. With the projected numbers of sick first responders, these men and women and their families need to know they will be covered.
How does this help First Responders?
If COVID-19 is presumed to be work-related, first responders will have better access to medical benefits, wage loss benefits, and rehabilitation benefits under the workers’ compensation statute.
Under the Minnesota Work Comp Act, injured employees are entitled to reasonable and necessary medical care and treatment designed to cure or relieve the effects of the injury or illness. This prevents workers from using their own private insurance for a work-related condition and racking up debilitating co-pays and medical expenses.
Wage Loss Benefits
When completely disabled from work due to a work-related condition, an employee is entitled to ongoing temporary total disability benefits or 2/3 of his or her average weekly wage and is also non-taxable. When employees are able to work part-time or at a reduced wage, they are entitled to temporary partial disability or 2/3 of the difference between their average weekly wage (and the reduced wage is non-taxable). These benefits are almost always better than a private disability policy.
Employees may be entitled vocational or rehabilitation benefits, permanent partial disability benefits, as well as death or dependency benefits if the unimaginable were to occur.
These benefits extend better and more expansive protection than sick leave policies, even sick leave policies or paid family leave specifically designed for COVID-19.
What other legal presumptions exist?
The Minnesota Workers’ Compensation Act already provides for other types of legal presumptions for post-traumatic stress disorder (PTSD), cancer, and heart attacks for certain types of professions. (https://www.revisor.mn.gov/statutes/cite/176.011). By enacting these presumptions, the Legislature implicitly recognizes that certain types of professions are more at risk to these conditions than the general public. The Legislature also recognizes that theses are types of injuries and illnesses that are much more difficult to prove, despite its pervasiveness among these groups of workers.
These presumptions should not lull workers into a false sense of security that because the presumptions exist, that claims will automatically be admitted. Despite these presumptions, insurers and employers regularly and almost without exception deny PTSD, cancer, and heart attack claims.
What can I do?
Sign our petition and contact your senator or representative. Put the pressure on our government to help those on the front lines. They protect us, it’s our turn to protect them.
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Mary Beth Boyce is a tenacious trial attorney who has successfully represented clients through jury trials and argued in front of the Workers’ Compensation Court of Appeals, Minnesota Court of Appeals, and Minnesota Supreme Court.