A Sioux Falls woman is appealing after the South Dakota Department of Labor and Regulation dismissed her case seeking worker’s compensation benefits relating to her husband’s death.
The man, a worker at Smithfield Foods, died of complications to COVID-19 in April 2020.
Lawyers for Karen Franken appeared in a Minnehaha County courtroom Monday afternoon to argue that Craig Franken’s death on April 19, 2020, was related to a work injury from contracting the SARS-CoV-2 virus.
“This was a hotbed of Smithfield’s making and created this increased risk of hazardous exposure and infection,” her attorney Bram Weidenaar said, referencing the COVID-19 outbreak at Smithfield at the beginning of the pandemic.
At the time, Smithfield was a site for one of the largest outbreaks of the virus and had to pause pork production in April 2020. More than 500 employees between March and April tested positive for COVID. Four employees, including Franken, died of the disease.
Smithfield was fined by the Occupational Safety and Health Administration in September 2020 for failing to “protect employees from exposure to the coronavirus.”
The case was originally dismissed by the DOLR in June because of a 2021 law enacted by the state legislature. That law determined employees could not sue for workers compensation when related to COVID-19, unless it was an intention exposure “with the intent to transmit COVID-19.”
The law could be applied retroactively to include any time between Jan. 1, 2020 and Dec. 31, 2022.
Smithfield had used the law in its argument for dismissal.
Fifteen states also chose not to include COVID-19 in their workers comp laws while 28 others carved out exemptions for the disease, according to court documents filed by Weidenaar.
Jon Sogn, the judge presiding over the case, asked if Franken’s lawyers had filed the suit after her husband died, whether the case could have been pursued.
“I don’t think that our system was set up that COVID-19 was going to be deemed to be either an injury or an occupational disease,” said Laura Hensley, the Smithfield attorney.
She added she would’ve asked for the case to be dismissed either way.
Sogn did not come to a decision in the room, saying he would take the oral arguments into consideration and do more of his own research. He hoped to have a decision before the end of the weekend.