Take Note: Potential Implications for Oregon COVID Claims?
The Court of Appeals recently issued an opinion in Rogers v. Corvel Enterprise Comp. Inc., 317 Or App 116 (2022) that could have negative implications for self-insured employers, insurers, and third-party administrators in investigating and evaluating COVID claims.
In February 2019, claimant (who was a bus driver for Tri-Met) became ill with the flu at the height of flu season which required a short hospitalization. Claimant was exposed to passengers on her bus routes who were coughing and sneezing, and she hugged a co-worker who was subsequently diagnosed with the illness during the 4-6-day incubation period for the flu. During the same period, claimant ran several off-work errands that included a regular trip to the doctor and quick trips to a department store, a pharmacy drive-up window, and a grocery store.
On appeal, claimant argued that her attending physician’s knowledge of one specific exposure at the grocery store was not necessary to the doctor’s evaluation of material contributing cause. Claimant also argued that a material cause standard did not require a weighing of every possible off-work exposure against the work exposure.
According to the court, this case presented a “unique variation” of the material cause standard because both claimant’s attending physician, and the employer’s expert had explained that it was not possible to determine with certainty where claimant had “caught” the flu. Under the circumstances and facts of the case, the court stated compensability was dependent on whether it was more likely than not that claimant’s exposure at work was a material cause of her illness.
The court reasoned that claimant’s expert’s opinion supported the conclusion that claimant’s exposure at work was a “fact of consequence” that could satisfy the material contributing cause standard – despite the expert’s lack of knowledge of claimant’s trip to the grocery store. The court specifically noted that the grocery trip omission would have been significant if the occupational disease major contributing cause standard of proof were applicable.
The court ultimately reversed and remanded the case back to the Board for consideration of whether it was in fact more likely than not that claimant’s exposure at work was a material cause of her influenza illness.
Given the similarities between the regular seasonal flu and COVID-19, it is likely that the court’s interpretation of the material cause analysis as only requiring work to be a “fact of consequence” could prove fatal to arguments against compensability for employers, insurers, etc. This is especially concerning given part of claimant’s attending physician’s opinion relied on statistical data, which appeared to be given favorable weight.
So how does this affect how claims are processed? The investigation period for initial compensability of a COVID claim should fully be utilized – gathering recorded statements, social media inquiries, and interviewing employer contacts and coworkers as necessary. To minimize the significance paid to statistical information, those same studies and information should be provided to experts reviewing records as part of their compensability determination.
If you have any questions about the potential implications of the Rogers case, or any other questions about determining compensability of a COVID claim, please feel free to call me at 503-412-3111 or email .
Posted By: Elyse Lopez
