Presently, there is no case law in Virginia that specifically addresses pandemic viruses as occupational diseases and workers’ compensation benefits. However, by definition pandemics are a widespread contagion. Therefore, it is likely that COVID-19 claims could fall within the “ordinary disease of life” classification. Under this assumption, the claim would generally not be compensable because COVID-19 is a disease to which the general public is exposed outside of the employment setting.
Claims Made by Healthcare Employees and Emergency Responders
COVID-19 claims by healthcare employees and emergency response personnel are likely to be analyzed under Va. Code §65.2-401, which covers employment in a hospital, healthcare, emergency rescue and similar employment settings. Because of the heightened-risk of these classifications of employees as well as the presumptions afforded them, these claims may be compensable.
In order to establish compensability, an employee would need clear and convincing evidence (and not a mere probability) of the following:
- The disease exists and arose out of and in the course of employment and did not result from causes outside of the employment, and
- One of the following exists:
- It follows an incident of occupational disease; or
- It is an infectious or contagious disease contracted in the course of employment in a hospital or laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and some volunteer emergency rescue personnel; or
- It is characteristic of the employment and was caused by conditions peculiar to such employment.
Obstacles to Workers’ Compensation Claims
Most likely the biggest hurdle for claimants who may pursue a claim for COVID-19 will not be the actual diagnosis, but instead establishing the diagnosis was due to exposure while at work and not acquired as a member of the general population. Clear and convincing is a high burden of proof. Furthermore, a physician may be unable to offer an opinion within a reasonable degree of medical certainty that a healthcare worker’s COVID-19 infection did not result from causes outside of employment. As a result, it is likely that many of these claims will be litigated and, without amendment, denied.
Potential Changes to Virginia’s Workers’ Compensation Act
Due to the rapid and evolving nature of this crisis, a group in Virginia, Change.org, has drafted recommended modifications to the Virginia Workers’ Compensation Act. The “Amend the Workers’ Compensation Act to Protect Virginia’s Healthcare Workers” is a recommendation that creates a presumption that healthcare related COVID-19 infections are compensable occupational diseases. This change would relieve healthcare workers from the difficulty of proving their diagnosed COVID-19 infections are related to their employment and not community-acquired.
In addition to the statutory presumption of work-relatedness, the proposed amendment includes a change to the permanent partial disability statute. There is substantial evidence that COVID-19 infections may cause affected healthcare workers to suffer permanent loss of lung capacity. Including COVID-19 lung damage to Section 503 of the Workers’ Compensation Act will allow healthcare workers to be compensated for permanent injuries to their lungs that occur as a result of infection. It is proposed that the compensation period for this damage will be 100 weeks, with each percentage of impairment equivalent to a week of benefits under the Act.
It is believed without this amendment COVID-19 permanent injuries will not be compensable; and a prospective claimant’s recovery will be limited to temporary total, temporary partial disability, medical and death benefits.
Woods Rogers defends companies and businesses in workers’ compensation litigation, working together with the employer and insurance carrier to achieve the best possible resolution. If you have any questions regarding COVID-19 Workers’ Compensation claims contact Chris Stevens.