When does COVID-19 become a Workers’ Compensation issue?

The COVID-19 pandemic has put the world into a state of uncertainty. The legal world has been no different. What happens if an employee falls ill with COVID-19 and can trace the exposure to the workplace?

There are two types of workers’ compensation injuries in Pennsylvania. The first is the “injury” which is defined as “arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury….” 77 P.S. § 411(1). The Pennsylvania Courts have expanded the phrase “course of employment” to “course and scope of employment.” 

The second category is the “occupation disease,” which is defined as an exposure where “the incidence of which is substantially greater in that industry than in the general population.” 77 P.S. § 27.1(n). The law lists multiple diseases that are presumed to be worked related, such as the virus Hepatitis C, anthrax, and black lung disease.

If one contracted COVID-19 at work and reported it as a work-related illness or injury, one would have 21 days to notify the supervisor from the date of a positive test. The supervisor will then file a claim with the employer’s workers’ compensation insurance carrier who will either approve or deny the claim. Oftentimes, where causation is questionable or under reasonable investigation, the insurance carrier will issue what is called a Temporary Notice of Compensation Payable. This allows the carrier to temporarily accept the injury or illness as compensable (that is, payment of lost wages at the workers’ compensation rate and payment of medical bills) pending further investigation of the claim. 

COVID-19 can be treated as an occupational disease in some instances. Occupational disease is a special category of workers’ compensation claim designed to provide benefits as a result of illness from workplace exposure to toxic materials and other health hazards. In order to classify exposure to COVID-19 as an occupational disease, one would need to prove:

• Exposure to the disease by reason of employment.
• The disease is causally related to the industry or occupation.
• There is a substantially greater incidence of the disease in that industry or occupation than in the general population.

When we hear these elements, we think of front-line workers or medical professionals. However, there can be numerous other situations where it can be proven that contracting COVID-19 is due to work-related exposure as opposed to contracting it in public. This can be particularly true where there was known exposure to a positive coronavirus case at work. 

Insurers, however, will vigorously defend these cases, arguing that coronavirus exposure can happen anywhere, including at home, in the grocery store, or any public location. Because the virus is novel, there is little history to determine whether or not there is a “substantially greater incidence of exposure” in the workplace. Of course, like anything else, there are general exceptions to this rule. More than likely, nurses and doctors, for example, would not have a difficult time in meeting the definition of Occupational Disease, particularly if they worked on a COVID-19 floor.

Unfortunately, many COVID-19 cases could result in death. If properly presented and proven, the family of the deceased COVID-19 patient could receive fatal claim benefits, potentially for life. In the injury context, it would necessitate expert physician testimony that could link to a reasonable degree of medical certainty that there was a connection between the contracting of COVID-19 and workplace exposure. Under the Occupational Disease Act, there could be a rebuttable presumption that there is a relationship between the disease and the work exposure. 

Absent death or long-term consequences, due to the vigorous defense and potential low-value claims, many lawyers may be hesitant to pursue these claims. Insurance companies will battle these claims until the Courts can provide guidance on how to treat COVID-19. Another argument to consider, albeit one that should not affect the Court’s decision on compensability, is the expected increase in Workers’ Compensation insurance premiums if claims are successful. Insurers will reason that they did not insure the risk of COVID-19 exposure.

There is currently a bill pending with the state legislature that would grant a presumption of coverage to certain enumerated employees. The pending version of the bill defines a covered employee as “an individual employed by a life-sustaining business or occupation who is required to work during the declaration of an epidemic or a public health emergency.” For the defined employees, any time there is hospitalization or isolation due to real or potential exposure for COVID-19, the instance is considered “work-related hazardous duty.” Interestingly and surprisingly, these workers would only be entitled to medical benefits, but not workers’ compensation wage-loss benefits. This is a never-before seen proposed partial application of the workers’ compensation act.

It is not expected that the bill will pass in its current format, but it is a situation that bears monitoring as we navigate the “novel” coronavirus.

Andrew J. Race is an attorney with Reilly Wolfson, and practices primarily in the areas of Civil Litigation, Workers’ Compensation, Family Law, Personal Injury, and Criminal Defense.