As to COVID-19, are potential claims for front-line healthcare workers compensable? Specifically, for those working in Emergency Rooms or having face-to-face interactions with patients, how is the medical causation analysis affected?
Under current NC law, to prevail on a WC claim, a claimant must show that the claim arises from an IBA (injury by accident) or an OD (occupational disease).
Prior Case Law in NC
For infectious diseases, the case law is limited, and so are crystal-clear answers. But, in general terms, a claimant will most likely have to show some kind of significant “increased risk” in order to make out a viable WC claim. Contracting COVID-19, simply because someone at work exposed a claimant to it, is probably not sufficient evidence of “increased risk.”
The leading case in NC involves an exposure to hepatitis. The claimant’s job involved testing blood, at a hospital lab. So, all of the evidence was that the claimant’s work placed him at “increased risk” of contracting hepatitis, which was one of the diseases often found in the blood that he routinely tested. In addition, the claimant had no other personal characteristics that could explain how he contracted hepatitis, outside of work. Even though hepatitis might be an “ordinary disease of life” in most cases, and, even though the claimant could not pinpoint a specific exposure that caused his hepatitis, that particular claimant was at “increased risk” of developing the disease, as compared to the general public.
“Increased Risk” in North Carolina
As COVID-19 gains a foothold, and more and more of the population is exposed, the less and less likely it is that any particular work exposes a claimant to an “increased risk.” However, this analysis is highly fact specific, and it is possible that healthcare workers may be in a class where the evidence could show “increased risk.” NC courts say that “increased risk” include hazards that are “peculiar to” and “characteristic of” an employment, that make it different from what folks face in a run-of-the-mill job.
Even if a “healthcare” sounds high risk, not every worker will have the same risk profile. For example, someone working in the billing department at a hospital probably faces different hazards than the person administering COVID-19 tests. And, conversely, not every routine job is necessarily low risk. The security guard at the ER, or the janitorial staff working at a hospital, may be examples of hidden risks.
The current pandemic creates an odd situation in that the evidence may establish a general risk that is already prevalent in the population, rather than a specific risk that stems from employment in the healthcare industry. While healthcare workers may be interacting with the individuals who are the sickest, will the science establish that this means that they are exposed to a greater risk of contracting COVID-19?
It is easy to see how odd fact patterns may test the limits of how we all understand the “increased risk.” But, from where we stand at this time, it seems reasonable to point out the following: When everyone is special, then no one is. Or, stated differently, when the exposure exists on such a widespread level that everyone is at significant risk, then is there really anyone who is at increased risk? And, beyond the question of whether a claim can be made out in theory, a claimant must still show actual causation. Establishing causation may be a huge problem for most claimants, even in the healthcare industry, because it is unlikely that they’ll be able to pinpoint an exposure at work, or to rule out other non-occupational exposures.
Should we deny the claim?
Based upon what is currently known about COVID-19, and with the caveat that everything is developing rapidly, it seems like it will be a rare situation where a COVID-19 is going to be compensable under current NC law. But, the compensability of any particular claim will turn on its specific facts. Apart from the legal questions that COVID-19 creates, completing a full investigation of a COVID-19 claim, within the time parameters that NC law contemplate, creates a significant practical problem. Most claims, of necessity, should not be accepted outright. In almost all cases, there will be a reasonable basis for denying a COVID-19 claim, but it is foreseeable that there may be claims where it is more prudent to handle a COVID-19 claim on a “pay-without-prejudice” basis or even to make active use of the “exclusive remedy doctrine.” The attorneys at Cranfill Sumner & Hartzog LLP stand ready to help you make these difficult decisions.
