Those Battling COVID in NC Rarely Get Workers’ Comp. ‘You Have to Fight so Hard.’
Thursday, July 15, 2021 | | Author: Ames Alexander | Original Article
When the pandemic shuttered most North Carolina workplaces, Bruce Trivett had no way to earn his pay from home.
Instead, the 58-year-old prison officer worked his regular shifts at Avery Mitchell Correctional Institution in person, rarely venturing anywhere else except to pick up food, his family says.
By fall, a coronavirus outbreak spread rapidly inside the 800-bed state prison in Spruce Pine. Trivett kept working, taking an inmate who was severely sick with COVID-19 to the hospital and guarding him there, according to his daughter, Heather Ziemba.Soon COVID-19 struck Trivett too, killing him in October.
After a workers’ compensation claim reached the private company that administers claims for the state prison system, it was turned down. A written denial stated Trivett was not placed at increased risk of getting COVID-19 at work.“It hurts that you have to fight so hard to get any justice,” said Ziemba, who has hired an attorney to appeal the denial.
In theory, North Carolina’s workers’ comp system is designed to provide financial help to employees or their families after people get hurt or sick at their jobs.
But for many with good reason to conclude they were exposed to the coronavirus while on the clock, it hasn’t worked out that way. The Charlotte Observer found:
▪ From the start of the pandemic until the end of May 2021, 3,468 workers’ compensation claims related to COVID-19 were denied in North Carolina - nearly five times the number that have been accepted, according to data from the state Industrial Commission, which administers workers compensation claims.
▪ North Carolina’s workers’ comp laws are among the nation’s least friendly to workers. At least 17 states and Puerto Rico have taken steps to make it easier for employees to prevail in workers’ comp cases involving COVID-19, according to information compiled by the National Conference of State Legislatures. North Carolina isn’t one of them.▪ A bipartisan workers’ compensation bill, which would have helped North Carolinians likely exposed to COVID-19 at work, died last year after business groups lobbied against it. Opponents argued that it would cost employers too much money.
WORKERS FACE DIFFICULT FIGHT
Valerie Johnson, a lawyer with offices in Durham and Charlotte, is among those who have seen how hard it is for workers and their families to prevail in such cases.
She has handled cases in which there was strong evidence that employees caught the disease at workplaces such as long-term care facilities, where the state saw some of the most severe outbreaks. Still, she said, the employers and their insurance carriers rejected the families’ workers’ compensation claims.Workers’ comp lawyers say such denials are part of a broader pattern: When N.C. employees catch any sort of debilitating illness on the job, they almost never win compensation without a fight.
Ed Pauley, a Salisbury workers’ compensation lawyer, has handled hundreds of occupational disease cases over the past 20 years, but could recall just three cases in which the carriers agreed to pay the claims from the outset.
“We have a joke around here that if a case gets admitted, I don’t even know what paperwork to fill out,” Pauley said.
Employees who hire lawyers to represent them in such cases often win settlements. But advocates for workers say it shouldn’t be so hard.
“It’s somewhat disturbing that so many who sacrificed, who made conditions tolerable for many who didn’t have to work in these situations … are having to fight for compensation for the effects of a horrible disease,” said Johnson, the Durham lawyer.
NC LAWS LIMIT HELP
Passed in 1929, the North Carolina workers’ compensation act was designed as a compromise to balance the needs of employers and their workers.
Workers generally gave up the right to sue over workplace injuries and illnesses. In exchange, they were supposed to get compensation for medical care and lost wages. The law says those deemed disabled by workplace illnesses and injuries, for instance, are eligible for two-thirds of their average weekly wage.
If an employee dies from those injuries and illnesses, state law says their families are entitled to a portion of their pay and help with funeral expenses.
North Carolina’s workers’ compensation laws used to be in line with those of many other states, according to a ProPublica investigation into states that had slashed workers’ compensation benefits. But by 2014, only 10 states had more restrictive laws than North Carolina, ProPublica found.
The biggest changes happened in 2011, when the GOP-controlled General Assembly reduced workers’ compensation benefits for the most seriously injured employees. Under a previous law, for instance, injured employees who were unable to work could collect workers’ compensation benefits for their lifetime. But the 2011 law limited the duration of temporary disability payments to about nine and a half years.
Often, it’s not difficult for workers to prove they were injured on the job, lawyers and advocates say. But proving they caught an illness at work tends to be far more challenging.
Under North Carolina law, employees seeking workers’ compensation for occupational diseases like COVID-19 must clear two hurdles.
First, they must prove that they likely contracted the illness on the job, not an easy task because employers and their insurance carriers frequently argue that the workers could have caught the illness elsewhere.
Secondly, workers must show that the risk of catching the disease on their job was greater than that for others in the general public.
Employers and their insurance carriers rarely concede either of those points when claims are initially filed, workers’ compensation lawyers say.
After the pandemic struck, a number of states, including Illinois, New Jersey and Vermont, enacted “rebuttable presumption” laws that relieve employees of having to prove that they caught COVID-19 at work. Instead, the burden is on employers to prove that they did not.
North Carolina made no change.
“North Carolina hasn’t done anything to make workers’ comp easier to prove during the pandemic,” said Bob Bollinger, a Charlotte workers’ compensation lawyer. “The North Carolina law just isn’t very friendly to employees.”
BUSINESS OPPOSED CHANGE
Last year, a group of Democrat and Republican state lawmakers introduced a bill that would have made it easier for health care workers, first responders and other “essential service” employees to get workers’ comp if they caught COVID-19 on the job.
Like the laws enacted in other states, House Bill 1057 would have allowed employees to collect workers’ compensation unless employers presented “clear and convincing evidence” that they didn’t catch the disease at work.
Rep. Raymond Smith, who co-sponsored the legislation, said essential workers who catch the coronavirus shouldn’t have to prove they got it on the job.
“They’ve put their lives on the line and they’re doing a job most of us don’t want to do,” said Smith, a Wayne County Democrat. “This has nothing to do with politics. It has to do with people. And taking care of people who take care of us.”
The bill — introduced in May of 2020 and co-sponsored by Republicans Jamie Boles of Moore County and Mitchell Setzer of Catawba County — died in the House health committee last year, following stiff opposition from the state’s business community.
Soon after that bill was introduced, 24 business and insurance groups sent N.C. lawmakers a letter to register their opposition. Most employers are required by law to purchase insurance to cover workers’ compensation claims, and the premiums are based on known workplace risks, according to a white paper accompanying the letter.
Because the global pandemic was unexpected, those premiums weren’t calculated with COVID-19 claim payments in mind, the white paper stated. For that reason, the business groups argued, the legislation would drive up costs and “cause additional and substantial economic damage to an already struggling employer base.”
Several of the groups that signed the letter represent some of the state’s largest employers, including the North Carolina Home Builders Association, the North Carolina Pork Council and the North Carolina Healthcare Association. A significant number advocate for companies that employ people who didn’t have the option of working from home.
The opposition continued into year two of the pandemic. On a web page describing its 2021 legislative agenda, the N.C. Chamber vowed to “work to defeat legislation that would create any form of rebuttable presumption around COVID-19.”
The Chamber did not make any of its staff available for an interview. But in an emailed response to the Observer’s questions, a Chamber spokesperson said: “We believe our position is accurately portrayed on our website.”
MaryBe McMillan, president of the NC AFL-CIO, said essential workers risked their lives to ensure others had the food, medical care and other services they needed. The state should have recognized the risks they took by offering better workers’ comp protection, she said.
“I think it’s important for people to understand that the legislature had a chance early on in the pandemic to protect workers and to make it easier for them to get workers’ comp if they got COVID,” McMillan said. “But they refused to do it. And they refused to do it because the business community fiercely opposed it.”
‘MY HEART JUST STOPPED’
Bruce Trivett doted on his three-year-old granddaughter, Emma. He lived alone in a double-wide trailer just two houses down, off a windy mountain road in Spruce Pine. But before the pandemic hit, he would often spend time with Emma, playing on the porch, showing her how toys worked and letting her wear his “World’s Greatest Granddad” hat.
“That was his life — his grandchild,” said Ziemba, Trivett’s daughter.
But as COVID-19 spread, Trivett stopped visiting. He rarely traveled outside his home except for work and for food, because he didn’t want to run the risk of transmitting the virus to others, his daughter said.
By mid September, a major outbreak hit the medium-security prison where Trivett worked. As of Sept. 11, 100 inmates and three staff members at Avery Mitchell Correctional Institution had active cases of COVID-19, a state prison spokesman told the Mitchell News-Journal at the time.
That same month, Trivett told his daughter that he had to take an inmate who was sick with COVID-19 to the hospital and guard him there.
“I remember that conversation like it was yesterday,” Ziemba said. “My heart just stopped.”
“I said, ‘Please tell me you were protected,’ ” she recalled. “He said, ‘I wore everything they told me to.’ I just remember praying it was enough.”
Soon, Trivett developed a fever and a cough and was diagnosed with COVID-19. As it got worse, he had so much trouble breathing he found it hard to talk to his daughter on the phone — even when she called on Oct. 2 to announce the birth of Kaylee, his second granddaughter.
On Oct. 5, Trivett called an ambulance. Paramedics rushed him to the intensive care unit at Mission Hospital, in Asheville, where he remained until he died. His death certificate confirms that COVID-19 killed him.
He never got a chance to meet Kaylee.
An account of Trivett’s death, which appears on a web page that memorializes fallen officers, said he contracted COVID-19 “while conducting a prisoner transport and guard duty of a COVID-positive inmate.” Ziemba said that information was provided by prison staff members.
Trivett was one of 18 prison and jail officers in North Carolina who died from COVID-19 in 2020, according to an analysis of death certificate data by the Charlotte Observer.
To protect people’s medical privacy, the North Carolina Department of Public Safety cannot comment about individual employees who died from COVID-19, said spokesman John Bull. The agency does all it can to link families of “fallen employees” to services available to them, he said.
“We are following the laws and procedures established long before COVID-19 tragically took the lives of thousands of North Carolinians,” Bull said.
Several months after Trivett’s workers’ comp paperwork was filed, Ziemba said she got a call from a woman who worked for the company that administers claims for the state prison system. She informed Ziemba that the claim had been denied, just like every other COVID-related claim had come across her desk, Ziemba recalled.
“She said because it was a pandemic, you could catch it anywhere,” Ziemba said.
But Ziemba and her attorney say there’s little doubt where Trivett caught the disease.
“We’ve got a direct exposure to an inmate at a time when there was an outbreak going on,” said Alan LeCroy, the Morganton lawyer who is representing Ziemba. “We have an individual who was taking the virus seriously in his everyday life.”
For Ziemba and her family, there is much at stake: When employees die as a result of work-related injuries or illnesses, the workers’ comp law says their families are entitled to two-thirds of the deceased worker’s pay for 500 weeks.
More than 13,000 people in North Carolina — and more than 600,000 in the U.S. — have died from COVID-19.
Ziemba wonders how many of their families are going through the same ordeal.
“It’s hard to know that so many people are having to do what I’m doing,” she said. “My heart breaks for every one of them.