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WATERTOWN — A new aspect of workers compensation has emerged amid a global pandemic — contracting COVID-19 while on the job.
William W. Crossett IV, a local lawyer who’s represented injured workers for nearly 40 years, said he began preparing to litigate COVID-19 as a workers compensation claim as soon as the first human tested positive.
It’s state law that anyone who has hired an employee must carry a workers compensation policy, and those employers are justifiably worried their premiums may spike if claims related to COVID-19 in the workplace become popular, said Mr. Crossett, a partner with MCV Law, a firm with offices in Watertown, Syracuse and Chittenango, Madison County.
Mr. Crossett has been meeting with injured workers since the early 1980s, starting his work in the north country in Canton, where there were dust-related illnesses in mine workers.
The workers compensation law has always worked best with orthopedic injuries like a broken bone. But as the law has evolved to include asbestos or baker’s asthma or post traumatic stress disorder, it’s taken a step further and now recognizes COVID-19 as a possible claim.
The benefits from an accepted claim could be payment of medical bills, wage replacement, benefits to an employee’s dependents if the employee dies or reimbursement of funeral services, according to the state Workers Compensation Board.
“It became apparent very early that it was going to happen,” said Mr. Crossett, talking in his third-floor office in the Lincoln Building overlooking Public Square. “The claims, however, usually don’t come until people are better or they’re not getting their benefits.”
Injured workers come to Mr. Crossett, in most cases, wondering if they have a case to be made, if it was made and their benefits were cut, or if their case was denied right away. Mr. Crossett and his team are trained to listen to a client’s story and determine if there’s a relationship between the injury and where they work. The driving piece of evidence is medical testimony, and COVID-19 is no exception.
It likely wouldn’t be enough to make a claim if someone is reported to have tested positive at work. Ideally for his case, a doctor or medical professional would testify saying there’s a link between the positive test and where they got it. A contact tracer testifying could help, but Mr. Crossett would likely run into confidentiality and privacy issues, or the fact the workers compensation law doesn’t have as broad a subpoena power as other courts.
“The magic words are ‘within a reasonable degree of medical certainty,’” he said. “That’s sort of the gold standard, and it’s not easy to get.”
Mr. Crossett would also try to determine whether the employee is out of work because of COVID-19.
There wouldn’t be any benefits if an employee was out seven days with, say, the flu. But with COVID-19, Mr. Crossett would be looking at long-term effects that leaves an employee impaired to a certain degree. He said with COVID-19, it could be cardiac problems, breathing problems, lung problems or fatigue, to name a few. Many possible long-term effects are still unknown, but that doesn’t appear to be a problem because once a workers compensation case is established, the injured employee is entitled to benefits — even if they come down the road, Mr. Crossett said.
COVID-19 also brought about directives from state government to work remotely. Mr. Crossett has been making the point that workers compensation claims can be made while working from home too.
“Whether or not we can argue that while they were working, they contracted COVID at home, to make a workers compensation claim is probably far-fetched,” he said. “The point is that if you are working at home or remotely, you may have a workers compensation claim.”
As a small-business owner, Mr. Crossett said he thinks employers are justified in thinking their premiums might increase. That’s why he treats COVID-19 no differently than any of the number of exposures in a workplace he has litigated in the past. He supplies masks at his business, as well as hand sanitizer and the reduction of staff working in the office.
“Employers have to be flexible,” he said. “There’s a big push for a waiver of liability. They really want to say you can’t sue your employer because of COVID.”
An issue for workers making a COVID-19 claim might be getting representation in the first place.
Some lawyers might turn the cases down because they might be what the industry called medical-only claims. This means the injured worker just wants his or her hospital bills paid for, and lawyers can’t get paid in those cases since there’s no money going to the employee.
“I’ve been doing this a pretty long time,” Mr. Crossett said, “and my experience tells me that if I help people like that, it’s good for my business.”
Mr. Crossett is prepared to be called from a worker who thinks they tested positive on the job. He’s already working on a number of claims in his area.
“If you’re hurt, you’re out of work or you’ve got COVID, your life is disrupted,” he said. “Part of our mission is to help you get that back.”
Above all, Mr. Crossett and his team work to give a strategy, but they also know their clients don’t wake up hoping it’ll be the day they start a relationship with a workers compensation lawyer.
“People are always better off working than they are collecting workers compensation benefits,” he said.” “You’re making more money, your career hasn’t come to an end and you’re a productive member of society.”