Saul Sanchez died from the novel coronavirus amid an outbreak at his workplace — the JBS Greeley beef plant — that has since infected nearly 300 workers.
No one in his family got sick. People he worked with did. But JBS’s insurance administrator has contested his family’s claim for workers’ compensation benefits on the grounds that the illness was not work-related.
“Come on,” Britton Morrell, the family’s attorney, said. “There is no way you did an investigation to determine that.”
Workers across Colorado are facing an uphill battle to claim workers’ compensation benefits on the grounds they were infected with the novel coronavirus at work. State law places the burden on the worker to show that they were infected on the job and not somewhere else — and that can be tricky to prove in the midst of an unprecedented global pandemic, experts told the Denver Post.
Nearly two-thirds of workers’ compensation claims related to COVID-19 have been initially denied, according to data provided by the Division of Workers’ Compensation, which regulates the state’s system. That’s double the rate of denials for all other claims so far this year.
About 64% of COVID-19 claims have been denied so far this year, according to the data, while 31% of all other workers’ compensation claims have been denied. Just over 16,000 claims have been reported to the division so far this year, including 1,970 claims related to COVID-19.
About 1,262 COVID-19 claims have been denied; companies have admitted liability in 628 cases, or about 32%. Another 80 cases are pending.
“It’s a controversial type of claim,” said Paul Tauriello, director of the Colorado Division of Workers’ Compensation. “Early on, when it hadn’t quite hit Colorado and we had our first few patients, if you were an EMT or a firefighter or a hospital worker caring for one of those patients, and you got it and people on your team got it, that’s pretty clear it’s work-related. But once it starts spreading in the community, it’s really hard to say.”
The denied cases can be appealed and might later be decided in the workers’ favor. Insurance companies are compelled by law to take a stance on cases within 20 days after a claim is filed; some have denied claims initially on the grounds that more investigation is needed. All workers’ compensation claims in which an employee misses more than three days of work are required to be reported to the division.
JBS said in a statement Wednesday that Sanchez’s claim was denied “by our third-party claims administrator consistent with the Colorado Workers’ Compensation Act.”
Morrell plans to use Sanchez’s cell phone data to show where the 78-year-old went around the time he was infected to try to make the case that infection happened at the JBS plant, where Sanchez worked for more than 30 years.
“It happened there,” said his daughter, Patricia Rangel. “I know it did. We all know it did. My dad had a routine. During the week he went to work, he came home, he ate and he went to bed.”
In Sanchez’s case, and in another fatal coronavirus workers’ compensation case Morrell is handling involving a man who transported nursing home patients, the companies have asked to review the workers’ social media accounts and have asked whether the employees attended any concerts or went to indoor group events around the time they got sick.
“Normally, I view the whole social media thing as just kind of an overly intrusive ask,” Morrell said. “But it’s kind of reasonable at this point. To make sure you’re not tagging yourself as having gone to Mardi Gras.”
The pandemic and the challenges it presents to the workers’ compensation system are unprecedented, Tauriello said.
“No one has seen anything like this before,” he said.
He expects to see a few initial COVID-19 workers’ compensation cases rise through the courts until the Colorado Court of Appeals hears the issue and puts forth judicial case law.
“Once that is out there, everyone will fall into place,” he said. “Insurance companies will say, ‘OK, that’s our bright line.’”
Earlier this year, Colorado lawmakers passed a chance to make it easier for essential workers, including police officers, firefighters, medical workers and grocery store employees, to receive workers’ compensation benefits for novel coronavirus infections.
The bill would have shifted the burden of proof away from employees by presuming that essential workers employed outside of their homes during the pandemic and were infected with the novel coronavirus contracted the virus at work.
Rather than requiring workers to prove they were infected on the job by a preponderance of evidence, the bill would have required employers to present “clear and convincing evidence” — a higher legal standard than a preponderance — that a worker was not infected on the job.
In a fiscal note, the state estimated the change would cost Colorado up to $10.5 million in hospital expenses, funeral expenses and death benefits over the next two fiscal years, predicting that 328 of the state’s more than 10,000 essential employees would contract COVID-19, 57 would be hospitalized and 13 would die in that time frame.
But the analysis also noted that some of those costs might be incurred whether or not the bill was passed, given that some workers’ compensation claims were likely to be granted even with the burden of proof on the worker.
The bill was opposed by Pinnacol Assurance, the state’s largest provider of workers’ compensation insurance, as well as by the Colorado Self Insurers Association — which Denver, Colorado Springs and several other Front Range cities belong to. It also was opposed by Colorado Counties Incorporated, the Colorado Municipal League and the Special District Association, among others.
Opponents argued the proposal was too expensive, redundant to benefits already provided in the law, placed an undue burden and expense on employers, and was overly broad.
“It would have increased rates from our policyholders across the board by 27%,” said Edie Sonn, vice president of communications and public affairs at Pinnacol. “And we don’t even cover a lot of cities, or fire districts or hospitals. Those folks who started doing their own analysis were like, ‘Oh my God, this is tough.’ When it comes to the issue of when there is community spread, what is the right way to handle this?”
Pinnacol has received about 700 workers’ compensation claims related to COVID-19 and has denied about half of them, Sonn said. The other half have been admitted or are pending, she said.
Julie Smith, a spokeswoman for Denver’s Department of Finance, said the city did not take a stance for or against the bill, but did estimate it could cost the city between $5 and $75 million depending on a variety of changing circumstances. So far, Denver has processed 405 workers’ compensation claims related to COVID-19. In most of those claims — 373 — workers did not miss work. In 32 claims where employees did miss work, 17 claims have been admitted and 15 have been denied because the exposure couldn’t be confirmed to be work-related or pending further investigation, according to data provided by Smith.
The bill died in a 10-0 vote in the Senate Appropriations committee on June 10 because of the expected cost.
Mack Babcock, an attorney who supported the bill, called the opposition “nauseating” and “immoral,” and argued the bill was designed to protect essential workers like Sanchez.
“They said, ‘You can already establish a claim for COVID-19 under Colorado law, and we’re reporting and admitting all these cases, but by the way we don’t want this legislation because it will be too expensive,’” he said, arguing that was a contradictory stance. “If you’re reporting them and admitting them, it’s going to be the same.”
Doug Kotarek, a member of the legislative committee for the Colorado Self-Insurers Association, said the bill’s proposed changes would have put self-insured businesses and entities in the impossible position of trying to prove the negative, and said the projected cost would have been too much for those entities to bear, particularly during the massive economic downturn caused by the pandemic.
“As a person who has worked with the self-insurers for a long time, they take these situations very seriously and try to do what is right for their co-employees,” he said. “Any suggestion that that is not the case with self-insurers would not be fair and would not be accurate.”
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