March 24, 2020 - 10:18 AM
Inevitably, given the nature of the COVID-19 pandemic, it is likely that some of your employees will become infected with the disease. Hopefully, the infection will be mild, and your employees will miss limited time from work. Still, given the unknowns of this disease and its perniciousness, an employee could be seriously injured and or die as a result of exposure to the virus. The major question for an adjuster and claims professional is whether these disabilities and fatalities are work-related.
We can look to cases involving needle stick and Hepatitis as exemplars of how we should perform this relatedness. The most important factors in making this determination are first exposure, and second medical connection.
In SCI Waymart v. Workers' Compensation Appeal Bd. (Feldman), 766 A.2d 900 (Cmnwlth. Ct. 2000) the Claimant alleged he contracted Hepatitis C at work, indicating that he believed that he had been exposed while he was employed in a prison as a corrections officer. The Claimant proved by circumstantial evidence that the prison was the most likely place of infection. He described an incident where he came into contact with the blood of inmates. He also presented evidence that his wife was not infected and that he had not engaged in any high-risk behaviors that could have led to an infection.
This case is illustrative in that by process of elimination the Claimant proved his exposure. Moreover, he also evidentiarily eliminated any other sources of exposure. Thus, when an employee files a Claim or Fatal Claim Petition, it is important to provide a clear incident to prove exposure to the virus or disease. Examples of this would be a healthcare worker who is working with COVID positive patients or a known exposure at work to a COVID positive individual. Obviously, as a defendant, one would want to attack these allegations of exposure, and the defendant should provide proof or examples of non-work exposure.
In Sun Home Health Visiting Nurses v. Workers' Comp. Appeal Bd. (Noguchi), 815 A.2d 1156 (Cmnwlth. Ct. 2003) the Claimant was employed as a nurse. Claimant filed a Claim Petition indicating that she had been exposed to hepatitis C through a series of needle sticks at work. The Judge granted the Claim, and the Workers Compensation Appeal Board supported the Judge's Decision. The nurse's job duties involved a high risk of exposure to blood or bodily fluid through needle sticks. The appellate court concluded that the Claimant was entitled to the rebuttable presumption under Pa. Stat. Ann. tit. 77, § 413 that her hepatitis C arose out of and in the course of her employment. Claimant testified that she had been the victim and, importantly, reported numerous needle sticks from infected patients. The Claimant testified that she did not have any other exposure to blood, such as blood transfusion, an organ transplant, a tattoo, or intravenous drugs. Again, in this matter, we have clear evidence of an exposure which led to an infection. Other potential circumstantial issues were eliminated.
Claimant bears the burden of proving all necessary elements of a workers' compensation Claim Petition. Where there is no obvious causal connection between an injury and the alleged work-related injury, the cause must be established by unequivocal medical evidence. In the case of COVID-19, the physician must somehow connect the exposure to work and manage to eliminate other exposures such that a Judge is convinced the exposure and illness is work-related. A Workers' Compensation Judge may accept or reject any medical witness's testimony in whole or in part. SCI, Supra.; Hills Department Store Number # 59 v. Workmen's Compensation Appeal Board (McMullen), 166 Pa. Commw. 354, 646 A.2d 1272 (Pa. Cmwlth. 1994). The Claimant proved with credible evidence that his exposure was related to work.
This also begs the question of whether COVID-19 will become an accepted occupational disease under the Occupational Disease Act for some professions, such as physicians, nurses, and certified nursing assistants. Hepatitis C is one of the enumerated occupational diseases set forth for Firefighters and emergency personnel. If the legislature sees fit, it may amend the Occupational Disease Act to include COVID-19 for medical personnel. Given COVID-19 becoming an occupational disease, the burden will shift to the employer to prove that the disease was contracted due to some other means. Pawlosky v. WCAB (Latrobe Brewing Co.), 525 A.2d 1204 (Pa. 1987)
It is of primary importance to prove a known exposure to a COVID-19 positive individual. Other kinds of non-work exposure must be excluded. Medical evidence should connect the known exposure to the contraction of the disease. The major foreseeable problem with proving relatedness in COVID-19 is the likelihood of COVID-19 exposures outside the work environment. Therefore, without a known work exposure to a COVID-19 infected individual, it will be very difficult to prove relatedness.