Brian Clymer, Attorney at Law - Tucson Social Security Disability Attorney

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Minnesota, Illinois adopt presumptive coverage for most front line employees who contract COVID-19. Should Arizona be next? Yes.

Certain workers from Minnesota and Illinois who are most susceptible to COVID-19 exposure can breathe a sigh of relief. Why? Minnesota has enacted legislation that creates a rebuttable presumption that if certain employees contract COVID-19 their disease is presumed to be workers’ compensation occupational disease. In Illinois, the state’s Workers’ Compensation Commission adopted evidentiary rule that similarily creates a rebuttable presumptive occupational disease for front line workers.

The Illinois rule covers a more expansive group of workers — from first responders (police, firefighters, EMTS, paramedics) to health-care providers giving patient care, to “front-line” workers such as grocery clerks, food production workers, day-care workers, essential supply chain workers, etc. Here’s the complete list of covered workers.

As of now, the Minnesota law is more narrow but includes a rebuttable presumption for police officers, firefighters, paramedics, EMTs, health-care providers, nurses, health-care workers, correctional officers, persons required to provide child care for first responders or health care workers, nursing aides, and health care workers in long-term care facilities. An employee’s date of injury is either the date the employee was unable to work due to contraction of COVID-19 or was unable to work due to symptoms that were later diagnosed as COVID-19, whichever occurred first. 

Minnesota employers can only rebut the presumption by showing that the employment was not a direct cause of the disease. The employer has the burden of proving by the preponderance of the evidence, that while performing his or her job duties, the employee was not exposed to COVID-19 or the exposure to COVID-19 could not have been a cause of the employeeʼs illness. Here’s a link to more information on the Minnesota law.

Arizona has yet to adopt a rebuttable presumption but it should follow the proactive Minnesota and Illinois lawmakers. It’s good public policy because workers’ compensation is no-fault, limited liability insurance. It is the first “tort reform” because workers give up the right to sue employers in exchange for a limited recovery of medical treatment and two-thirds of their average monthly pay while sick or injured.

Unfortunately, word on the street is that at least one major workers’ compensation insurance carrier is going to automatically deny COVID-19 claims. That alone begs the question, does an insurance carrier that automatically denies a COVID-19 claim commit bad faith in doing so? We think the answer is, “Yes, that’s bad faith.” Why? If the carrier denies a COVID-19 claim without first conducting an adequate investigation before denying the claim, that’s bad faith. An Arizona Court of Appeals decision supports our position, and here is where you can find that case, Tapia v. Industrial Commission, which was litigated by our firm.

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Brian Clymer, Attorney at Law
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Tucson, AZ 85719

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