by Karl Voigt
By now, you’re probably fatigued by news about Covid-19, the virus that has been acknowledged as a worldwide pandemic. Pennsylvania, as of the date of this post (April 10, 2020) is certainly no stranger to the disease, with some 19,979 cases and 416 deaths. Even worse, Philadelphia is now the next projected potential hotspot for new infections.
So, what if you think you’ve been exposed to Covid-19 at work?
If your OD claim is denied by an insurer – and it likely would be – you have the burden of proof before a judge to show that the disease is related to work. These cases generally fall under the category of Workers’ Compensation Occupational Disease (OD) law, rather than physical injury law. OD law has been specifically written to address diseases that occur in the workplace. Historically, OD law has compensated workers who contracted diseases through coal dust, asbestos, latex, or lead or chemical exposure. OD law can also, however, be used to get compensation for diseases like hepatitis, cancer or even Covid-19
Under the Act, there are what’s called “enumerated diseases”. When a worker has one of these specific diseases, there is a rebuttable presumption that the disease was caused by work. (see Act, §301(e)). That means the Judge may find work-relatedness simply because the employee worked at a job that posed a higher threat of contracting the disease. As an example, the OD Act enumerates asbestosis as a disease for workers in asbestos manufacturing. The asbestos worker who is diagnosed with asbestosis will benefit from the presumption that the disease is indeed work-related. It is historically difficult for an employer to rebut this presumption.
Where a disease is not specifically legislatively labeled an enumerated disease, there is still a “catch-all” provision. This allows for a presumption of work-relatedness where there is a substantially greater incidence of the disease in that industry or occupation than in the general population. (see Act, §108(n)). Namely, a disease that poses a higher threat to specific workers should enjoy this presumption. As an example, I have successfully argued cases that my clients’ MRSA (Methicillin-resistant Staphylococcus aureus) was work-related because they worked in a nursing home, where MRSA was far more prevalent than in the general public. It is under this “catch-all” that Covid-19 would likely have to be considered.
There is no doubt that Covid-19 poses a statistically higher threat to healthcare workers, first responders, delivery workers, grocery workers and other essential workers: people who have a greater chance of exposure to the virus. Healthcare workers are not dealing simply with patients, they are working in an environment where the concentration of the virus is higher. They may simply be in a general area that has a higher exposure; contact with an infected surface can spread the virus. Other workers are providing treatment, swabbing, testing, and even transporting patients. As an aside, we thank each and every one of these individuals who for these weeks have been working tirelessly.
Here’s the problem: Covid-19 is not yet one of these enumerated diseases under OD law. And we don’t know if it will be. On the upside, the Pennsylvania Bureau of Workers’ Compensation has adopted online coding for processing these claims, so this is a step in the right direction; these are professions that have a higher, more dangerous threat of exposure. Even if Covid-19 is not labeled an enumerated disease, we can still argue that the “catch-all” provision applies. However, this is countered by the fact that Covid-19 is so easily communicable, not just in the workplace but also outside the workplace. Employers will try to argue that the employee caught Covid-19 “out in the wild” rather than at work.
This means Covid-19 cases are in uncharted waters. There is no certainty that Covid-19 cases will be compensable. There is only certainty that we will fight for our clients. We encourage any worker who thinks they’ve been exposed to Covid-19 at work to diary and document. What were your shifts? To whom were you exposed? Did they test positive? What infectious disease protocols were engaged? Did any of your family members get sick? When? When did your symptoms start? Diary your temperature. What were your symptoms? Were your co-workers tested? Did they test positive? These are all critical facts and the answers can bolster the strength of your case.
It’s also important to give immediate notice of your work-related condition to your employer. Timely notice within 21 days of diagnosis initiates your claim and is an absolutely necessary part of the process.
So, what benefits are available? We list them below:
If you know you’ve been exposed to Covid-19, there is well-established caselaw that mandates that Workers’ Compensation – or your employer – must pay for testing.
2) Wage loss
a) Due to sickness
You are entitled to wage loss benefits if you are sick and miss time from work due to sickness
b) Due to layoff while working light duty
If you have been physically injured prior to the pandemic, returned to work with limitations, and gotten laid off or furloughed, your Workers’ Compensation may be reinstated. You can read more here.
3) Medical bills
Naturally, Workers’ Compensation must pay for any work-related medical treatment.
4) Mental health treatment
In rare cases, mental health care can be compensable where an employee suffers from a psychological reaction to objective abnormal working conditions. This pandemic may qualify as such a condition.
5) Death benefits
Because Covid-19 does have a higher mortality rate than the flu, this pandemic does pose a risk of work-related death. In that unfortunate circumstance, lifetime Workers’ Compensation benefits are available to a victim’s survivors.