Rhode Island Personal Injury Lawyer
by Slepkow Law

Are Rhode Island workers infected with Coronavirus eligible for workers compensation benefits? Will families who suffered the loss of a loved one, who died as a result of COVID-19, obtain survivor, workers comp. death benefits? Does workers’ compensation benefits in Rhode Island and Providence Plantations cover Coronavirus (COVID-19)?

RI workers compensation lawyer

This post was authored by RI personal injury lawyer, David Slepkow.

Will workers with COVID 19 be eligible for workers compensation benefits in Rhode Island?

Can a worker establish in Court that Coronavirus was contracted in the course of their work?

Will RI Judge’s consider Coronavirus a compensable “occupational disease” that is connected with or arising out of a peculiar characteristics of an employment?

Workers who are comp. claimants must retain a Rhode Island workers compensation attorney to establish that the novel corona virus was contracted at work and resulted from work.

What type of benefits are available in workers compensation court for Covid 19 victims?

Conjecture that COVID-19 occurred at work is not sufficient

If a frontline worker in Rhode Island contracts Coronavirus, it is likely that the infection took place at work. However, guesswork will not prevail in workers’ comp. Court in Providence. The Rhode Island workers compensation lawyer must prove by a preponderance of the evidence that the Coronavirus infection occurred at work. “As a general rule, an employee’s injury is compensable if the particular facts and circumstances presented establish a “nexus” or a “causal relationship” between the injury and the employment.”  Frank P. TAVARES v. A.C. & S. INC., 462 A.2d 977 (1983)

A matter of proof

An employee may have a tough time establishing that he or she was infected while working. The insurance defense lawyers may claim that COVID-19 did not arise from work. The workers comp. defense attorneys may argue that the employee was infected with the virus while he or she was at home, shopping at CVS or at Market Basket Supermarket. A worker who contracts COVID-19 , should retain the best workers compensation lawyer in Rhode Island. The Providence workers’ comp attorney will fight to get justice and hold the insurance company liable.

What is the standard of proof to establish that Coronavirus infection took place at work?

The RI comp. attorney must prove by a fair preponderance of the evidence that the Coronavirus was contracted at work. The Rhode Island workers compensation lawyer must prove that it was more probably than not that the COVID 19 was contracted in the course of the workers employment. The RI workers compensation attorney may need to hire a virologist, epidemiologist, infectious disease expert, or occupational disease specialist.

Will Rhode Island insurance corporations deny COVID-19 claims for workers who risked their life during the Coronavirus pandemic of 2020?

We do not know what position that workers compensation insurance companies will take as to whether they be held accountable to COVID occupational disease claims. The Rhode Island legislature may resolve the issue with legislation. The legislature may codify a presumption, in all cases, that all Rhode Island workers infected with Coronavirus arose during the course of the worker’s employment.

Will nurses and medical professionals with COVID- 19 qualify for workers compensation benefits?

One of the largest workers comp. insurers, Beacon Mutual Insurance Company, recently declared that they will presume that all healthcare workers and nurses who worked during the 2020 pandemic, who contracted Coronavirus, were infected in the scope of their employment. 60 percent of the employees with comp. insurance in Rhode Island are covered by Beacon. Beacon’s move was a generous and an uplifting gesture of social responsibility in the face of an international crises causing thousands of deaths. Nonetheless, Beacon Mutual’s edict does not go far enough. Beacon’s policy does not address the plight of non-healthcare workers such as grocery store workers, Walmart employees, Shaws workers,  nursing home staff, hotel workers, delivery drivers, construction workers and others who were exposed to Coronavirus virus at work.

Beacon mutual, stated:

“In order to be eligible for workers’ compensation benefits under the Rhode Island Workers’ Compensation Act, claimants need to prove that their diagnosed illness arose out of and in the course of their employment, and not through other potential sources of exposure.  In an attempt to expedite any workers’ compensation claims by those providing treatment and care for COVID-19 patients, Beacon intends to recognize the heightened risk of COVID-19 exposure to policyholder health care workers and to presume that those health care workers diagnosed with COVID-19 have an occupational disease, thereby making them eligible for workers’ compensation benefits.  Specifically, throughout the declared state of emergency in Rhode Island…”

Gina Raimondo issued a press release stating:

“Workers Compensation: Beacon Mutual Insurance Company, which insures 12,000 Rhode Island businesses, will be allowing frontline healthcare workers to file for workers compensation under the presumption that they contracted the virus in the course of doing their jobs – and will expedite those claims….” Press release 

Can an insurance company deny me workers comp. coverage because COVID-19 is not an injury?

Pursuant to Rhode Island law, both an injury and an “occupational disease” insured by workers compensation benefits. COVID-19 disease does not fall within the four corners of any Rhode Island workers compensation laws. However, the COVID -19 pandemic is an unprecedented situation. Rhode Island law will probably identify Coronavirus as an “occupational disease” not an injury. An occupational disease which arises out of work will be treated the same way as an injury in Rhode Island Workers Compensation Court.

Legislative intent

“The Legislature enacted G.L. 1956 (1979 Reenactment) Chapter 34 of title 28 in order to protect the worker who was exposed to conditions that resulted in disability because of an occupational disease. Evidently the Legislature recognized that an occupational disease is set apart from accidental injuries in that it is not unexpected — because it is incident to a particular employment — and it is gradual in development.” Frank P. TAVARES v. A.C. & S. INC., 462 A.2d 977 (1983)  See Morgan v. Stillman White Foundry Co., 87 R.I. 408, 414, 142 A.2d 536, 538-39 (1958)Perez v. Columbia Granite Co., 74 R.I. 503, 507, 62 A.2d 658, 660 (1948)see also 1B Larson, The Law of Workmen’s Compensation § 41.31, at 7-357 to -358 (1982).

What is an occupational disease?

“Section 28-34-1(c) defines the term “occupational disease” as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment.” Disability arising from silicosis or asbestosis is listed in § 28-34-2(32), as amended by P.L. 1982, ch. 32, art. 1, § 8, as a compensable occupational disease and is therefore treated as a personal injury. Moreover, § 28-34-3, as amended by P.L. 1982, ch. 32, art. 1, § 8, and § 28-34-4, as amended by P.L. 1979, ch. 151, § 1, provide that a disabled employee is entitled to compensation if the occupational disease is due to the nature of the employment and was contracted within that employment. Furthermore, when a worker has contracted an occupational disease from being exposed to a harmful substance over a period of years and in the course of successive employment, § 28-34-8 specifies that the employer who last exposed the worker to the harmful substance is liable to pay the entire compensation.” Frank P. TAVARES v. A.C. & S. INC., 462 A.2d 977 (1983) See also Esmond Mills, Inc. v. American Woolen Co., 76 R.I. 214, 219, 68 A.2d 920, 923 (1949).

Is Covid 19 the type of “occupational disease” that victims can receive compensation benefits?

Rhode Island General law § 28-34-1 defines an occupational disease as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment.” Pursuant to Rhode Island Law 28-34-3 occupational diseases that are set forth in Rhode Island General Law § 28-34-2 are treated the same way as other injuries in Workers Compensation Court.

Rhode Island general law § 28-34-2  list many occupational diseases or conditions that are compensable. RI law § 28-34-2  lists 36 diseases and conditions but does not list a respiratory disease as a compensable  disease or condition. Here are some of the myriad list covered conditions:

The RI Statute does not particularly list respiratory infection such as Covid 19 as an occupational disease

Rhode Island law § 28-34-2  and RI law § 28-34-3 do not list a respiratory virus, such as Covid 19, as a compensable injury in worker’s compensation Court. RI law 28-34-3 lists a compensable injury as a “Disability arising from any cause connected with or arising from the peculiar characteristics of the employment.”

“Rhode Island Law has yet to address acute instances of contraction of infectious diseases in the workplace”

“Under Rhode Island Workers’ Compensation Law, an occupational disease is set apart of accidental injuries in that it is not expected because it is incident to a particular employment, and it is gradual in development.” JD Supra “Rhode Island has yet to address acute instances of contraction of infectious diseases in the workplace. The state is notable for having limited case law, not just in the realm of workers’ compensation, but we anticipate this issue may be litigated in the coming years, given the widespread nature, and great impact of COVID-19.” JD Supra

Will Judges allow compensation for health care workers and first responders but deny non-healthcare workers compensation?

It is tough to argue that nurses and healthcare workers are not peculiarly subject to contraction of the Coronavirus that arises out of the characteristics of their employment responsibilities.  However, it will be much more complicated, absent legislative action, for non-healthcare workers to establish that that Covid arose out of a peculiar characteristic of their employment.

“It is arguable that for employees such as cashiers, waitstaff, or other individuals who work closely with the general public, that contraction of COVID-19 is a condition that is characteristic or peculiar to the particular trade, occupation or employment. We anticipate claimants’ attorneys will argue that the conditions of such particular employment, makes workers suspectable to communicable diseases. This is the argument we anticipate will be made to ensure contraction and perhaps even simple exposure of COVID-19 is determined a compensable injury.” JD Supra

Insurance may deny claims asserting that Covid 19 is not due to causes peculiar to certain types of employment

The workers compensation insurance defense lawyers may argue that Covid 19 does not arise from a peculiar characteristic of certain types of employment as described in §28-34-3. In other words, infection with COVID-19 does not arise out of a peculiar characteristic of being a construction worker, CVS pharmacist or pizza delivery driver. Furthermore, RI workers comp. defense lawyers are likely to argue that Covid 19 is not an occupational disease as described in § 28-34-1 because it it is not a characteristic and peculiar to a trade, occupation or process of employment.

It will be more difficult for the insurance defense lawyers to assert that contraction of  a disease such as Covid 19 would not arise out of the characteristics of working as a doctor, nurse, medical provider or nursing home staff. This reality may have been Beacon’s rationale for accepting accountability for workers’ comp. claims of nurses and medical providers who contacted Covid 19.

A unique and unprecedented challenge

Covid 19 infection presents an unprecedented challenge to the workers compensation statutory scheme in Rhode Island and Providence Plantations. RI workers’ comp laws, clearly, did not and could not have anticipated a pandemic to this extent affecting the workforce in Rhode Island. The four corners of the workers compensation statute, case law and regulations do not directly refer to infections of workers caused during a pandemic of this magnitude.

Will lawmakers revise and update the RI workers compensation statute to provide coverage to employees?

There is a real possibility that the Rhode Island legislature amends the Rhode Island worker’s compensation to specifically include the Novel Coronavirus as a specific occupational disease that may arises out of employment and for which workers will be potentially entitled to benefits. The second issue would be whether the legislature creates a presumption for certain types of workers that Covid 19 infection ws contracted by employees during the course of their employment.

Will legislation be enacted in Rhode Island creating a presumption that a worker who tested positive for Coronavirus was infected at work?

There is a possibility of the Rhode Island Legislature enacting specific legislation to definitively create a legal presumption that all worker infections occurred at work. If the Rhode Island legislature creates a presumption, they must specifically state that it applies retroactively to Covid 19 victims. “As a general rule a statute is presumed to operate prospectively and not retrospectively, unless it appears by clear, strong language or by necessary implication that the Legislature intended to give the statute retroactive force and effect State v. Healy, 410 A. 2d 432 – RI: Supreme Court 1980,Langdeau v. Narragansett Insurance Co., 96 R.I. 276, 279, 191 A.2d 28, 30 (1963)Capobianco v. United Wire & Supply Co., 78 R.I. 309, 312, 82 A.2d 170, 172 (1951).

Fault or the failure of employers to follow safety protocol is not required

Even though an employer has good intentions, an employee could still be infected with Covid 19 at work. Despite an employer following the law and instituting proper safety protocols to protect their employees, members of their workforce can still be infected with the Novel Coronavirus. Fault and negligence of the employer is not an element of a workers’ compensation claim in Rhode Island and Providence Plantations. In other words, if an employee is injured or is infected with a virus at work, the employer is required to pay workers comp. benefits even if the employer did nothing wrong.

Workers compensation law in Rhode Island is relatively simple. If you are injured in the course of your employment, you are usually eligible for benefits. An employee is not required to show that his or her employer was negligent. An injured worker is not required to prove that negligence caused their injury.

Frontline workers- the heroes of this war

The heroes of the Covid 19 pandemic crises are now the frontline workers in Rhode Island. Frontline workers are providing essential services and goods to the public during these difficult times. The State of Rhode Island and the United States are effectively at war with an unconventional enemy, Covid 19. The frontline to this war is not soldiers. The frontline is the grocery store worker who check you out at Shaws / Stop and shop, delivery drivers and clerks at CVS providing your necessary and life-saving medications.

Essential frontline workers include: nurses, health care workers, first responders, EMT workers, medical providers, deliver drivers, physicians, store clerks, cashiers at the supermarket and other heroic workers in Rhode Island. Many employers are not providing their employees proper masks and personal protective equipment (ppe) Employees in Rhode Island face a substantial risk of exposure to the Novel Coronavirus.

Nurses and the workforce selflessly endangering their health and safety

Governor Gina Raimondo, local municipalities and the RI Department of Health have issued many safety protocols for Rhode Island employers. Thankfully, the vast majority of employers are instituting proper precautions for their employees and workers.  However, many employers are not following CDC and State of Rhode Island Department of Health Covid 19 rules and recommendations. The employees, nurses and workforce are selflessly endangering their own health and safety by doing their jobs. These workers are risking their lives to allow Rhode Island residents to get essential services such as food, medication, toiletries, health products and necessary legal services.

Can a spouse, child or family member file a wrongful death lawsuit against an employer as a result of a Covid 19  infection at work causing a fatality?

“In all cases where an employer and employee have elected to become subject to the provisions of chapters 29 – 38 of this title, the provisions of chapter 7 of title 10 shall not apply while those chapters are in effect.” § 28-29-21. Wrongful death law inapplicable.

Workers with Coronavirus cannot sue their employer seeking pain and suffering

An employee covered under workers compensation insurance cannot file a lawsuit seeking pain and suffering and other damages against their employer in Superior Court. “The right to compensation for an injury under chapters 29 – 38 of this title, and the remedy for an injury granted by those chapters, shall be in lieu of all rights and remedies as to that injury now existing, either at common law or otherwise against an employer, or its directors, officers, agents, or employees; and those rights and remedies shall not accrue to employees entitled to compensation under those chapters while they are in effect, except as otherwise provided in §§ 28-36-10 and 28-36-15.” 28-29-20. Rights in lieu of other rights and remedies.

What types of death benefits are available in workers compensation court to compensate surviving family members, spouse and dependent children?

Sadly, many nurses (RN and LPN), doctors, medical providers, anesthesiologist and nursing home employees died as a result of exposure to patients who had Cornavirus.  Rhode Island General Law§ 28-33-12 sets forth the compensation available to family members from the employer, if a worker dies as a result of Coronavirus which occurred at work.

“(a)(1) If death results from the injury, the employer shall pay the dependents of the employee wholly dependent upon his or her earnings for support at the time of his or her injury or death, whichever is the greater in number, a weekly payment equal to the rate that would have been payable for total incapacity to the deceased employee under the provisions of § 28-33-17, except as provided in this section in case the dependent is the surviving spouse or child under the age of eighteen (18) of that employee.

(2) If the dependent is a surviving spouse, or surviving spouse upon whom there is dependent one or more children of the deceased employee including an adopted child or stepchild under the age of eighteen (18) years or over that age but physically or mentally incapacitated from earning, the employer shall pay the surviving spouse the weekly rate for total incapacity the deceased employee would have been entitled to receive under the provisions of § 28-33-17 plus forty dollars ($40.00) per week for each dependent child. § 28-33-12″ Death benefits payable to dependents, Rhode Island General Law§ 28-33-12

Can the employer blame the victim for contracting Covid 19 and refuse benefits as a result?

If an occupational illness occurred at the workplace, pursuant to RI law 28-29-3, the employer cannot deny comp benefits alleging that the employee did not take proper precautions In an action to recover damages for personal injury sustained by an employee arising out of and in the course of his or her employment, connected with and referable to the employment, or for death resulting from personal injury so sustained, it shall not be a defense:

(1) That the employee was negligent;

(2) That the injury was caused by the negligence of a fellow employee;

(3) That the employee has assumed the risk of the injury. 28-29-3. Defenses abrogated as to injuries in course of employment.

Can a Coronavirus victim’s family, spouse or children file a wrongful death lawsuit against a third party for a work related death?

House Labor Committee Chairwoman Anastasia Williams will introduce legislation in Rhode Island

“House Labor Committee Chairwoman Anastasia Williams will introduce legislation in Rhode Island which would create a presumption for all frontline workers that their Covid 19 infections are presumed to be work related. A veteran state lawmaker is calling on Gov. Gina Raimondo to issue an executive order requiring that all front-line workers directly affected by coronavirus will have the illness presumed to be a work-related injury…House Labor Committee Chairwoman Anastasia Williams formally made the request on Monday in an email to the governor’s office, including a draft copy of the executive order. She told WPRI 12 she will introduce legislation with the same provisions if the governor does not take action herself….Under Williams’ proposal, the front-line workers category should include public safety personnel, government workers, janitors, public transit employees, grocery staff, retail clerks, truck and freight drivers, among others. Any of those workers who contract, have symptoms of or otherwise become affected with coronavirus shall have their medical condition or incapacity to work presumed to be work-related,” the draft order says. WPRI

“These selfless workers deserve to know that if the worst should happen and they become infected with COVID-19, that we recognize their sacrifice for our greater good, and their infection and recuperation should be deemed work-related,” Williams, D-Providence, said in a statement…In addition, Williams argues that public safety employees who are “incapacitated or unable to perform their duties as a result of the COVID-19 infection or exposure” shall have the time they spend hospitalized or quarantined classified as on-duty time, rather than being required to use paid time off such as sick days or vacation.” WPRI

“State Rep. Evan Shanley, D-Warwick, said he supports Williams’ proposal…Immediate action is required to support these courageous workers by affording them the basic protections afforded to injured workers under the Rhode Island Workers Compensation Act,” Shanley said in a statement. “The least we can do is tell these workers that their medical bills and families will be taken care of in the event they contract COVID-19.” Id.

Rhode Island workers compensation lawyer

You need to retain a top Rhode Island workers compensation lawyer or RI workers comp. law firm to represent you in your workers’ comp claim. In the event of a death arising out of employment, contact a top Rhode Island wrongful death lawyer.

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