Two months after Michael McCormick lay in a San Francisco hospital bed fighting to breathe, he fought to prove he got COVID-19 on the job and deserved workers’ compensation — and won.
The psychologist said he was diagnosed with the disease caused by the coronavirus six days after he stopped going in person to Kaiser Permanente’s Daly City clinic, where he worked, unmasked, alongside doctors treating patients. After he recovered, McCormick became one of more than 5,000 Californians who have filed COVID-19 related workers’ compensation claims since January, according to state data.
“It’s front lines, so we certainly do have a higher risk of developing any sort of illness, particularly one that’s as infectious as COVID-19,” McCormick said. “I can’t figure out how I could have gotten it otherwise.”
The coronavirus pandemic ushered in a new era of workers’ compensation claims in California, with the state creating a unique injury category for COVID-19, and politicians, including Gov. Gavin Newsom, pushing to change standards of proof for compensation. It can be murky legal territory to prove on-the-job injury — especially from a viral disease — but recent political action has made it easier.
Kaiser Permanente said the hospital system gave McCormick’s case a “thorough and careful review, to ensure he receives equitable treatment.”
Workers who win claims in the employer-funded compensation system get two-thirds of lost wages — up to $1,300 a week — for as long as two years, the costs of medical treatment for life and sometimes permanent disability benefits.
The state created a COVID-19 injury category for workers’ compensation claims in March, retroactive to December. Claims spiked as coronavirus cases rose and shelter-in-place orders kept everyone except essential workers home: 2,251 workers filed in March and 2,677 in April. Numbers dropped in May, with only 85 claims in the first three weeks.
As workers filed more claims, state data show fewer were denied — from a 60% denial rate in January down to 11% in May. But that was still a higher denial rate than total claims, hinting it may be harder to prove viral infection at work than a traditional workplace injury.
Newsom issued an executive order May 6 that gives the benefit of the doubt to essential workers if they got sick within two weeks of work. The order, which lasts for 60 days, is retroactive to March 19. Employers can rebut claims with evidence, but will have to prove workers got infected in a higher-risk environment than their job, which lawyers say may be hard to do.
“It changes the burden of proof and it flips it over,” said Oakland lawyer Mark Vickness, who represents injured workers. “That’s a significant shift.”
The California Chamber of Commerce said the change places an undue burden on employers. The Workers’ Compensation Insurance Rating Bureau of California, which is funded by its membership of employers, estimates the cost at billions of dollars.
Some politicians are going even further than Newsom. A state bill sponsored by multiple Democratic lawmakers would not allow employers to rebut compensation claims by coronavirus-infected firefighters, peace officers and hospital employees who provide direct patient care.
More than 10,500 health care workers were diagnosed with COVID-19 and 64 died in the state, according to the California Department of Public Health. Health workers argue they face higher risks on the job than elsewhere, especially under shelter-in-place orders.
“There is greater exposure than the general public, it’s a no-brainer,” said Dr. John Balmes, a San Francisco General Hospital physician and the director of Northern California’s Center for Occupational and Environmental Health. “The reason we’re wearing (personal protective equipment) is that we work with patients that are actually infected and spewing respiratory droplets.”
Kaiser and other Bay Area hospitals said they will follow Newsom’s order and review individual claims in addition to providing benefits to infected workers.
“Given the unprecedented nature of circumstances … it’s the right thing to do,” said Gail Blanchard-Saiger, the California Hospital Association’s vice president of labor and employment. But she did question legislation that would grant hospital workers irrefutable compensation, since she said they work in a controlled environment, unlike police officers who have a higher standard of protection.
Some hospital employees have little doubt that their work settings put them at risk. When the Bay Area sheltered in place in March, McCormick kept coming in to see patients, sometimes in an examining room with a doctor for 30 minutes. He remembers patients coughing. Later, doctors in his clinic told him some of the patients they treated were hospitalized with COVID-19.
McCormick wasn’t wearing a mask, since the hospital didn’t require everyone to wear one at that point. He was never fitted for an N95, the highest level of protection worn by doctors and nurses. Kaiser said N95s are generally reserved for high-risk procedures performed in a hospital room, not for a routine mental health visit.
Some physicians at the Daly City clinic started working from home on March 16; McCormick said he wasn’t told to do so until March 24. Two days later, his chills, headache and fever started. He was diagnosed with COVID-19 on March 29. The next day, Kaiser’s occupational health division told him the source of his infection was “community transmission” — not work.
For nearly two weeks, McCormick said his fever ebbed and flowed. He coughed and struggled to breathe just walking to the bathroom. He lost 20 pounds. The disease made him moody, irritable and depressed.
“At one point I wanted to die,” he said. “It was a tough time emotionally.”
McCormick said when he woke up coughing so violently he could barely breathe in the early morning of April 8, his wife took him to the emergency room at Kaiser in San Francisco. He stayed until April 15, receiving oxygen off and on.
McCormick said he returned to work conducting telemedicine on May 11 and, with the help of the National Union of Healthcare Workers, of which he is a member, filed for workers’ compensation the same week. His claim was approved Friday.
Dr. Stephen Parodi, associate executive director of the Permanente Medical Group at Kaiser, said the hospital system’s infection prevention program follows best practices for using personal protective equipment.
“The safety of our patients and staff is our priority,” he said.
Now recovered, McCormick, who is donating his plasma to treat COVID-19 patients this weekend, said the mental and physical effects of the disease remain.
“Even after I came home, I would have nightmares that COVID would come back. That has all since gotten better over time,” he said. “It’s been quite a journey. It feels like a bad dream.”