In regard to anticipated workers’ compensation claims for disability and wage loss arising from a confirmed diagnosis of COVID-19 “Coronavirus” recent media reports have raised concerns and… some confusion.
Pa Secretary of Labor & Industry Jerry Olesiak was quoted;
“As Pennsylvania and the nation implement mitigation efforts to slow the spread of COVID-19, it is important to relieve some of the financial pressures our workers are facing so they can focus on remaining healthy and safe. The best option is for employers to offer their employees paid time off. If leave is not available and your job has been impacted by this new virus, you may be eligible for benefits either through unemployment of workers compensation. If you work in a job or industry that likely will be affected, prepare now by learning what you need to know and how to file so your application can be processed quickly” …
If one only reads this first passage, there may be some confusion regarding the availability of a workers’ compensation remedy. Secretary Oleksiak’s remarks continued and he enumerated instances where unemployment compensation may be a remedy. He then addressed the workers compensation remedy.
In regard to workers’ compensation, he explained that those who believe they were exposed to COVID-19 in the workplace may be eligible for worker compensation. He advised those who believe that has happened to:
“Notify your employer to file a typical “disease-as-injury claim”, which requires you to provide medical evidence that you were exposed to COVID-19 in the workplace.”
“Notify your employer to file an “occupational disease” claim, which requires you to show that COVID-19 is occurring more in your occupation/industry than in the general population.”
See: TribLIVE, Deb Erdely, March 16, 2020.
This information focuses upon three essential elements of a compensable workers compensation claim:
Notice of injury;
Workplace exposure – medical causation;
Disability – wage loss.
In our consideration of COVID-19 claims, we start our analysis with a recognition that a claimant for workers’ compensation benefits, has the burden of proof, to establish a right to compensation and of proving all necessary elements to support an award. See: Inglis House v. WCAB (Reedy) (Pa. 1993).
Notice of Injury
The workers’ compensation act requires the injured employee to provide notice of injury to the employer: within 21 days of the occurrence of the injury;
in ordinary language;
that employee sustained an injury in the course of employment;
on or about a specific time, at or near a place specified.
See: Sections 311; 312 & 313.
Notice of Occupational Disease
Notice of an occupational disease requirement is slightly different. The period for notice commences when the employee knows of the existence of disability resulting from the occupational disease with a possible relationship to employment. (Usually the date employee is informed by the medical practitioner) See: Section 311.
[At this point we will defer discussion of the propriety of filing an “injury” versus “disease” claim.]
Addressing the Notice Issue - In Practice:
Employee work “call-off”
We recommend review of the general Employer “call-off” policy. Retrain/Re-emphasize the employer contact personnel, regarding the necessity to secure and record information of the “reason” why the employee is calling off work.
Employee report of possible workplace relationship to COVID-19 symptoms/diagnosis
In regard to COVID-19, when an employee reports off for “flu symptoms” record an onset date and if possible, the medical practitioner who made the diagnosis.
Record if employee alleges a workplace exposure, a community exposure or an unknown cause.
In follow-up, determine is the virus diagnosis has been confirmed by testing ordered by a medical practitioner.
Allegations of Workplace Exposure & Medical Causation
An employee has the burden to prove all of the elements of a compensable claim. See: Inglis House v. WCAB (Reedy) (Pa. 1993)
The Section 301 (c)(1) definition of “injury” requires that an injury arises in the course of employment and is related thereto…
This requires employee to prove, via credible evidence, that his/her exposure to COEVID-19 occurred in the workplace or at a site where employee was required to be present to perform assigned work duties.
Where the causal relationship of one’s employment to the injury is not obvious, then unequivocal medical testimony is necessary to establish a causal relationship. See: Lewis v. Commonwealth of Pennsylvania (Pa. 1985).
A medical opinion will be found unequivocal, if after providing a foundation, the witness testifies that in his/her professional opinion a certain fact or condition exists. The facts forming the basis of that opinion must be proven by competent evidence and accepted as true by the WCJ. See: Somerset Welding v WCAB (Lee) (1994).
However, where the foundation of the medical opinion is contrary to the established facts or is based on assumptions not in the record, such medical expert testimony is not competent. See: AT&T v. WCAB (Hernandez) (1998).
Medical Causation Issues - In Practice
“Claim Denial”
In the absence of credible, documented evidence of a work-related exposure and an unequivocal medical opinion of a causal relationship -
– the employee cannot meet their burden of proof and the claim should properly be denied.
“Claim Defense”
As noted above – there is a legal argument as to whether COVID-19 virus claims should be considered an “injury” or an “occupational disease”.
Section 108 of the Act enumerates specific diseases. For these enumerated diseases, there is a presumption that the disease arose out of and in the course of one’s employment. (This is a rebuttable presumption).
COVID-19 Virus is not an enumerated disease. On this basis, the claimant must prove:
Exposure to the disease by reason of employment;
The disease is causally related to the industry or occupation; and
There is a substantially greater incidence of the disease in that industry or occupation than in the general population.
See: section 108 (n); 77 P.S. 27.1 (n).
The 108(n) burden of proof, with the “greater incidence” requirement will be a significant obstacle to a successful claim.
… BUT … where the claimant does not meet all of the 108(n) requirements, benefits may be awarded if claimant met the criteria to prove the elements of a compensable “injury” pursuant to Section 301(c)(1). See: Armco Inc. V WCAB (Mattern) (Pa. 1995).
Assessing evidence of an alleged work-related exposure
We believe that contemporaneous documentation of any and all workplace exposures - or the lack of exposures – will be a key factor in the development of a successful factual defense to a COVID-19 workers compensation disability claim.
Some Questions to ask:
Are any other members of the work force diagnosed by a medical practitioner?
Did this employee have any known work-related (not social) contact?
Are any members of employee’s family or social acquaintances known to be diagnosed?
Does employee have any “risk factors” for exposure – travel?
Do your employees work in close proximity with vendors or business partners with employees who are a greater risk for infection?
Has the employee been on work-related travel versus recreational travel?
Does employee reside (recreate) in an area of reported communal diagnoses?
Traveling Employee Liability:
An employee traveling to further the business of the employer remains in the course of employment, unless what they were doing at the time of injury was so far removed from the usual employment activity, so as to constitute and abandonment of one’s employment.
Disability & Wage Loss
In Pennsylvania, disability is synonymous with wage loss.
Wage loss Benefits
IF the employee has established a workplace exposure via credible evidence and IF employee has medical evidence of a COVID-19 diagnosis related to employment…
…THEN employee is entitled to benefits for any loss of earnings, when compared to their pre-injury average weekly wage, which is compensated at 66 2/3 % subject to the Section 306 (a) provisions.
Wage loss benefits could be payable during quarantine or any medical-directed monitoring period, even in instances where the employee subsequently tests negative for the virus.
We do not recommend voluntary payment of wage loss benefits to the employee who is not under medical direction to quarantine and remove themselves from the workplace.
MEDICAL ONLY Claims
Where the employee continues to work during medical-directed quarantine and/or where the Employer continues to pay employee wages, there is no compensable wage loss, however, a Medical Only Notice of Compensation Payable is appropriate to acknowledge the existence of a work-related injury.
Failure to acknowledge an undisputed work-related injury may result in a request for the imposition of attorney fees and penalty for violation of the Act.
Medical Only Claims - “False Alarms”
The employee should be reimbursed for any medical expense incurred in the testing or treatment of a presumed diagnosis, as directed and prescribed by a medical practitioner.
The insurer was ordered to reimburse a volunteer fire-fighter for the costs of medical services after work-related exposure to AIDS and Hepatitis C viruses. A series of blood tests and immunizations were administered to evaluate and treat, in a precautionary manner. The Court concluded, “that persons exposed to a serious risk of contracting a disease which is commonly known to be highly contagious and potentially deadly, has been “injured” for the purpose of receiving compensation under the Act”. See: Jackson Township Volunteer Fire Company v. WCAB (Wallet) (1990).
Wage Loss Claims
Wage loss benefits may be initiated via several forms:
Notice of Temporary Compensation Payable LIBC-501;
Notice of Compensation Payable LIBC-495;
Agreement for Compensation for Disability LIBC-336;
and in existing claims, via Supplemental Agreement for Compensation LIBC-337.
We recommend use of the NTCP LIBC-501 - as the Employer/Insurer may initiate wage loss benefit payments and properly revoke the Notice within 90 days, without prejudice or without admission of liability where there is uncertainty regarding compensability or the extent of liability. See: Mahon v WCAB (Expert Window Cleaning) (2003).
Wage loss benefits are payable – only where the employee misses more than seven (7) days. Where disability lasts fourteen (14) days or more, the employee is paid for the first seven days of disability. See: Section 306 (e).
Our Assessment -
Since 1915, the Pennsylvania Workers Compensation Act has addressed a great number of variations of the work injury claims and work-related occupational disease claims.
We employ our accumulated knowledge and experience to assess and respond to these new issues. In evaluating issues raised by the recent CORVID-19 virus outbreak, we are at the initial phase of Identification and discussion of strategies to address possible exposures.
When employee claim reports are filed, we will implement our strategy to document work-related and non-occupational exposures.
We will assess compensability of claims based upon the available information, including documented, credible workplace exposures and medical evidence of a diagnosis, a work relationship and disability,
We anticipate Claim Petitions for disability as a result of work-related COVID-19 virus will be filed.
We will be in a strong position for claim defense, if we have documented all available information of workplace and non-occupational exposures. A well-documented history will provide a strong factual defense.
We have utilized board-certified experts in infectious disease for review of disability claims involving alleged work-related (post-surgical) infection as a basis for disability. We have learned that a successful medical defense can be asserted, when we provide the medical expert with credible, contemporaneous documentation of work-related conditions of employment and documentation of possible non-occupational exposures.
