Coronavirus & Workers’ Comp
|
|
Under the
Virginia Workers’ Compensation Act
, COVID-19 (“coronavirus”) will likely be treated as a “disease.” In Virginia, a disease may be compensable under the Act if it is an occupational disease or an ordinary disease of life.
|
|
|
- Occupational Disease v. Ordinary Disease of Life
- Burden of Proof in a Coronavirus Claim
- Similarities with a Tuberculosis Case
- Coronavirus First Responder Presumption Cases
- Presumption Claims and the Unknown Effects of Coronavirus
|
|
|
|
Regardless of whether coronavirus is pursued as either an occupational disease or an ordinary disease of life, the claimant must first prove that they are actually suffering from a “disease” and will likely need to establish this with a confirmed diagnosis of coronavirus to successfully meet their burden of proof.
Mere exposure or symptoms consistent with coronavirus, absent a diagnosis, will not likely be enough.
However, this does not necessarily mean that a positive diagnostic test is required.
A diagnosis/medical opinion from a physician may be enough to meet that burden.
|
|
|
Occupational Disease v. Ordinary Disease of Life
|
|
An
occupational disease
under
Va. Code §65.2-400
is “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.”
An
ordinary disease of life
under
Va. Code §65.2-401
is a disease that the public is exposed to outside of employment.
Now that the coronavirus has crossed the globe and reached pandemic proportions, it will most likely be considered an “ordinary disease of life” because the general public is exposed to it.
|
|
|
|
|
Under
Va. Code §65.2-401
, an ordinary disease of life is compensable if the claimant can establish by clear and convincing evidence that it:
- arises out of and in the course of the employment,
- does not come from causes outside of work, AND
- meets one of these additional criteria:
a. It follows as an incident of occupational disease; OR
b. The disease is an infectious or contagious disease
contracted in the course of employment in a hospital,
sanitarium, laboratory, nursing home, direct delivery
of healthcare, employment as emergency rescue
personnel, or employment as volunteer rescue
personnel; OR
c. It is characteristic of the employment and was caused
by conditions peculiar to the employment.
|
|
|
Burden of Proof in a Coronavirus Claim
|
|
In the standard “injury by accident” case, the claimant must prove that it is more likely than not that their work accident caused their injury.
In an ordinary disease of life claim, the claimant’s burden of proof is much higher as they are required to prove their case by clear and convincing evidence.
Clear and convincing evidence is evidence that is highly and substantially more likely to be true than untrue.
As the scientific community scrambles to fully understand this virus, and how it spreads, the claimant’s burden of proving that they did not contract the coronavirus outside of their employment may be a difficult one to meet.
The CDC’s website states that coronavirus seems to be spreading easily and sustainably in the community and is spreading from person to person.
[1]
The World Health Organization’s website states: “WHO is assessing ongoing research on the ways coronavirus is spread and will continue to share updated findings.”
[2]
While confirmed coronavirus cases in Virginia remain scarce, it may be easier for an employee who has coronavirus to establish a likely source of exposure.
Under these circumstances, it may be possible for the employee to eliminate potential exposure outside of their employment to the satisfaction of the Commission.
However, as COVID-19 becomes more widespread across Virginia, as is anticipated, it will become increasingly difficult for employees to establish that their coronavirus did not result from causes outside of their employment. Without the ability to eliminate potential outside causes of the disease, the claimant will not be able to establish a compensable ordinary disease of life.
|
|
|
Similarities with a Tuberculosis Case
|
|
In
Lindenfeld v. City of Richmond Sheriff’s Office
, 25 Va. App. 775 (1997), the Court of Appeals of Virginia considered whether a claimant’s tuberculosis was a compensable ordinary disease of life and the Court’s analysis may be instructive in evaluating the coronavirus claims that will inevitably be filed in the coming months.
Tuberculosis spreads from person to person through microscopic droplets released into the air when a person with active tuberculosis coughs, speaks, sneezes, spits, laughs, or sings.
[1]
Much like tuberculosis, the World Health Organization has suggested that coronavirus can spread from person to person through small droplets from the nose or mouth when an infected person coughs or exhales.
[2]
The claimant in
Lindenfeld
, was a deputy sheriff in a jail containing inmates with active and confirmed tuberculosis diagnoses. The chief physician at the jail testified that the rate of tuberculosis among prison inmates was higher than in the general public. The claimant did not know if he had contact with any person inside or outside of the jail with active tuberculosis.
The expert medical opinions in the case were in conflict.
The first physician did not know how the claimant contracted tuberculosis and the second thought it was possible that the claimant may have been infected in the jail. The third physician testified that it was more likely than not that the claimant contracted tuberculosis in the jail but could not rule out the possibility that the claimant was infected outside of work.
The Court of Appeals stated that “although claimant established that his risk of TB infection at the jail was greater than in the general public and eliminated some possible sources of infection from outside of his employment, these facts alone do not compel the conclusion that he inhaled the TB bacteria while working in the jail. Instead, these facts merely show through an incomplete process of elimination that claimant may have contracted tuberculosis while at work.”
The Court affirmed the Commission’s denial, holding that the claimant’s tuberculosis was a non-compensable ordinary disease of life.
|
|
|
Coronavirus First Responder Presumption Cases
|
|
Va. Code §65.2-402
provides first responders with a presumption that respiratory and heart diseases, as well as certain other medical conditions, are compensable
. To defeat the claim, the defendants must show that the claimant’s disease was not caused by the employment and that a non-work-related cause of the disease existed. If the Commission analyzes a coronavirus claim under
Va. Code §65.2-402
, it may well find in the claimant’s favor, depending upon how the coronavirus is ultimately found to effect other health conditions.
The claimant in
Town of Purcellville Police v. Bromser-Kloeden
, 35 Va. App. 252 (2001) was a police officer seeking workers’ compensation benefits for virally induced heart disease.
The defendants argued that the claimant’s condition did not qualify as an occupational disease because the virus leading to claimant’s heart disease was “community acquired.”
The Court found that the claimant’s work as a police officer placed him in greater contact with the public and their various bodily fluids and increased the overall stress in his life, rendering him more susceptible to all viruses, and increasing his risk of contracting the type of “community acquired” virus which caused his heart condition.
Although the cause of the claimant’s heart disease was a virus that the general public was exposed to, the Court held that, as a police officer, the claimant was entitled to a presumption that his heart disease was a compensable occupational disease and the defendants failed to rebut that presumption.
|
|
|
Presumption Claims and the Unknown Effects of Coronavirus
|
|
At this point, the full impact of the coronavirus is unknown.
The American College of Cardiology’s website states that “the specific effects of COVID-19 on the cardiovascular system remain unclear, although there have been reports of acute cardiac injury, hypotension, tachycardia, and a high proportion of concomitant cardiovascular disease in infected individuals…we’re all flying blind regarding coronavirus, but it’s fair to think that many of the issues that surround influenza and the cardiovascular system will be at play.”
[1]
From a workers’ compensation perspective, we can anticipate that coronavirus claims will be pursued under Va. Code §65.2-402(A) and (B) (respiratory disease or hypertension/heart disease, respectively).
|
|
|
Other Coronavirus Liability Concerns
|
|
|
|
Our attorneys represent employers before Virginia state and federal courts, as well as before the various administrative bodies presiding over employment-related disputes.
|
|
|
|
|
|
|
|
|
|
