You get Covid-19 (Coronavirus) at work and Texas workers' compensation denies your claim. What are your rights?

30 Jun 2020
If you were infected with Covid-19 (Coronavirus) at work you probably think that Texas Workers' Compensation will cover you. Or if you are the wife/husband (spouse), parent, or child of someone who died as a result of being infected with Covid-19 (Coronavirus) you probably think that Texas Workers' Compensation will cover you. You may be wrong, but that does not mean that you cannot sue the employer for your injuries or loss.


If you were infected with Covid-19 (Coronavirus) at work you probably think that Texas Workers' Compensation will cover you. Or if you are the wife/husband (spouse), parent, or child of someone who died as a result of being infected with Covid-19 (Coronavirus) you probably think that Texas Workers' Compensation will cover you. You may be wrong, but that does not mean that you cannot sue the employer for your injuries or loss.

As I have written about in prior post, Texas Workers' Compensation is supposed to cover individuals (or if they die, their spouses and minor children) if they get an "occupational illness". However, most Texas Workers' Compensation Insurance Companies are taking the position that Covid-19 (Coronavirus) is not an "occupational illness", because it is a disease that can affect the "general public" so therefore it is excluded from coverage. This is good for the insurance companies, but may not be good for the employers. Because in 1999 the Texas Supreme Court in the case of, GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999) that an employer may be liable to an employee for injuries they suffered at work which are not covered by the Texas Workers' Compensation Act. In Texas, an employer is generally not liable for injuries suffered by employees in the course and scope of their employment as long as they maintain a Texas Workers' Compensation Insurance Policy (this is known as the "exclusive remedy defense"). But there is an exception under the GTE Southwest, Inc. v. Bruce case. This case was somewhat unusual because it involved a "pure psychic injury" of an employee by an abusive supervisor. Under the Texas Workers' Compensation law a "pure psychic injury" is specifically excluded from coverage. Mr. Bruce's employer, GTE Southwest tried to argue that they could not be sued because they carried a policy of Texas workers' compensation insurance. The Texas Supreme Court held that because a "pure psychic injury" was excluded from coverage that the employer could not use the fact that they carried a workers' compensation policy of insurance as a defense to liability. They found that Bruce was injured in the course and scope of his employment and GTE was responsible for their supervisor's intentional act of inflicting a psychological injury to Mr. Bruce. Specifically, the Texas Supreme Court found that the exclusion language of "psychic damage" also excluded the affirmative defense of GTE Southwest of the "exclusive remedy".

So how does this apply to Covid-19 (Coronavirus) illness?

The Texas Workers' Compensation Act states that an occupational illness is covered by the insurance company as long as it is not an illness that is “an ordinary disease of life to which the general public is exposed outside of employment" Tex. Lab. Code 401.011(34). Much in the same way that the GTE Southwest, Inc. v. Bruce case allowed a suit against GTE Southwest because "psychic injury" was excluded if Covid-19 (Coronavirus) is excluded because it is a "disease of life to which the general public is exposed outside employment" then employers may be open to liability and lawsuits for their employees who were infected with Covid-19 (Coronavirus).

Negligence

It should be noted that even if the courts allow lawsuits against employers for Covid-19 (Coronavirus) infections, the employee must still prove that the employer was negligent and created an unsafe workplace environment that caused the worker to become infected. Also, employers will defend these cases by arguing that there is no proof of where and how the employee became infected. These are all defenses that should be allowed to go to a jury for their determination, but because there are no cases at this point, we will have to await cases to move through the Trial and Appellate Courts.

May employees, but especially essential workers like health care workers (nurses for example) and truck drivers and grocery store workers may have claims (or if family members may have claims for wrongful death).

This is an area fraught with pitfalls and therefore it is important if you suffered an illness from Covid-19 (or had a loved one die from this disease) you seek out a board-certified employment lawyer like Mr. Davie to guide you through this process.

I have added to this post the new OSHA "Guidance on Preparing Workplaces for Covid-19" which you can access by opening the pdf attached to this article.


Roger Davie P.C. El Paso's Board Certified Personal / Work Injury, Wrongful Termination, Workers' Compensation and Employment Lawyer. Free Consultation.

What if your employer does not carry Texas Workers' Compensation.

Texas is unique in that employers don't have to carry Texas Workers' Compensation. May employers both large (for example Wal-Mart) and small do not have Texas Workers' Compensation. In many cases they have no insurance at all or have their own "occupational and injury plan". Because they do not carry Texas Workers' Compensation they are subject to a lawsuit and do not have the "exclusive remedy defense" which means they are subject to a claim or lawsuit (or arbitration).


Attachments

Attachment 1

Links

https://www.osha.gov/Publications/OSHA3990.pdf