An Omaha nurse who filed for workers’ compensation benefits after she got COVID-19 early in the pandemic, resulting in severe and disabling medical problems, can go forward with her claim after a ruling Friday by the state’s high court.
The Nebraska Supreme Court was split 4-3 on the decision in Christine Thiele’s case.
The majority reversed, sending her case back to Workers’ Compensation Court for further proceedings.
“The issue before us is whether the compensation court erred when it reasoned that because COVID-19 is now a disease of ordinary life, it could not have been an occupational disease in April 2020,” Judge Lindsey Miller-Lerman wrote.
She said the court should have considered the prevalence of COVID-19 in March and early April 2020, when Thiele contracted COVID-19 through her work at hospital facilities.
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That question has yet to be addressed.
Lerman was joined by Judges William Cassel, Jonathan Papik and John Freudenberg.
On the other side, Judge Stephanie Stacy wrote a dissenting opinion, saying she would have affirmed the decision.
She said the Nebraska Workers’ Compensation Act expressly excludes from the definition of occupational disease “all ordinary diseases of life to which the general public is exposed.”
And Thiele’s employer presented competent medical evidence that COVID-19 is an ordinary disease of life “to which the general public is exposed not just currently, but also when Thiele contracted the disease in April 2020,” Stacy wrote.
“Because that medical evidence was unrefuted, Thiele cannot prevail on her occupational disease claim, and the employer was entitled to summary judgment as a matter of law,” she said.
Stacy was joined by Chief Justice Michael Heavican and Judge Jeffrey Funke.
According to the lawsuit, Thiele began feeling ill at work, Select Specialty Hospital, a critical care recovery hospital in Omaha, at the outset of the COVID-19 pandemic on April 6, 2020, and ultimately tested positive for it, developing “severe and disabling medical issues.”
Thiele filed for workers’ compensation benefits, alleging it was an injury that arose out of and in the course of her employment.
Select Specialty Hospital and Liberty Insurance Inc. filed a motion for summary judgment, essentially asking the court to dismiss the case without a trial.
The Workers’ Compensation Court judge, Daniel Fridrich, granted the motion, prompting Thiele’s appeal.
Attorney Doug Novotny said that in March 2020, Thiele’s employer designated her as an essential health care worker and required her to work from the hospital rather than remotely, as she normally did.
Without a designated workspace, she worked in the break room, boardroom, lobby or break rooms on patient floors, in close contact with medical personnel in contact with patients and visitors at Select and nearby Creighton University Medical Center-Bergan Mercy.
When Omaha started lockdowns and the Nebraska Department of Health and Human Services started recommending health care workers wear face masks, Thiele asked but was denied.
At the time, they were only worn by those with direct contact with patients.
Novotny said that from March 16 to April 6, 2020, Thiele stayed at home, other than going to work, and had little or no contact with two others in her home, who lived in the basement.
She was the only one to get COVID-19.
As a result of the infection, her attorney said, Thiele was diagnosed with continuing severe medical problems and rendered unable to work and now receives Social Security disability benefits.
At a hearing in the case, two of her treating physicians said that in their opinion, Thiele more likely than not contracted COVID-19 during the course of her job with Select, was exposed to a higher risk of contracting it because of her employment, which was exacerbated by her employer’s denial of a face mask.
On the other side, a medical expert for Select offered an opinion that, like other respiratory viruses, COVID-19 is easily transmitted from person to person and “at this point ... it is an ordinary disease of life to which the general public is exposed and will continue to be exposed in the years ahead.”
Nebraska appellate courts had not previously considered whether a contagious virus like COVID-19 might satisfy the definition of “occupational disease” under the Nebraska Workers’ Compensation Act. Some states have added presumptions of coverage for certain diseases including COVID-19. Nebraska lawmakers have not.
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