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Assessing the Pennsylvania Workers' Compensation COVID-19 “Coronavirus” Claim

Pennsylvania
March 20, 2020
March 18, 2020
View ARTICLE
Updated 4/17/20

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 or 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 regards 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.

Our assessment 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 the possible compensability of COVID-19 claims, we begin our analysis with a recognition that a claimant for workers’ compensation benefits, has the burden of proof, to establish a right to compensation and a burden 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: WC Act Sections 311; 312 & 313.

Notice of Occupational Disease

Notice of an occupational disease requirement is a slightly different requirement. 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: WC Act 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 existing employer “call-off” policy. Retrain/re-emphasize your employee contact personnel, regarding the necessity to secure and record information of the “reason” why the employee is calling off work.

MANY EMPLOYERS REPORT USE OF "Absentee Reporting Tools"

When the employee calls in to report their absence, the telephone prompt asks – “Are you calling in absent today, please indicate whether it is because:

  1. You have a respiratory illness including fever (100 F or greater) AND a cough AND/OR sore throat and/or SHORTNESS OF BREATH?   OR
  2. Are you asymptomatic and wish to self-quarantine out of concern of COVID-19 exposure?    OR
  3. You have other reason(s) for being absent today?
Employee report of possible workplace relationship to COVID-19 symptoms/diagnosis

When an employee reports off for “flu symptoms” record an onset date and if possible, the medical practitioner who made the diagnosis.

Record if the employee describes a family, a "community" or an unknown exposure source.
Record if employee alleges a workplace exposure.
Determine if the virus diagnosis has been confirmed by testing, ordered by a medical practitioner, with the date and site of testing.

Allegations of Workplace Exposure & Medical Causation

As noted above, 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 a work-related “injury” describes: an injury that arises in the course of employment and is related thereto…

This definition requires the employee to prove, via credible medical evidence, that his/her exposure to COVID-19 occurred in the workplace or at a site where employee was required to be present, inn order to perform their 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.

Conversely, 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. 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”. This is relevant as there are different proofs necessary to establish a work-related injury versus an occupational disease.

Section 108 (a) to (r) of the Act enumerates specific occupational diseases, such as Asbestosis, Silicosis, Coal workers pneumoconiosis . . . . 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 meet the burden of proof required at 108 (n) and establish:

  • 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: WC Act section 108 (n); 77 P.S. 27.1 (n).

We believe the 108(n) burden of proof, with the “greater incidence” requirement will be a significant obstacle to a successful COVID-19 disability claim.

APRIL 17, 2020 - As of this UPDATE

The Pennsylvania legislature is considering an amendment to the PA Workers' Compensation Act, Senate Bill 1106, which will grant a presumption of work-related exposure to “First Responders” diagnosed with COVID-19 virus disability AND one who is subject to quarantine as a result of COVID-19 exposure and is temporarily incapacitated from performing ones work duties.        

This will be a rebuttable presumption meaning the employer may prove that the employee contracted COVID-19 virus prior to any work-related exposure.

However, where the claimant does not meet all of the 108(n) requirements, work comp 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). (This is alegal argument which is beyond the scope of this article.)

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 partner employees, who are at a greater risk for infection?
  • Has the employee been on work-related travel versus recreational travel?
  • Does employee reside ( or 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 medical evidence and IF the employee has evidence of a COVID-19 exposure arising in the 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, up to the maximum benefit rate.

Wage loss benefits maybe payable during self-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 where remove themselves from the workplace.

MEDICAL ONLY Claims

Where an employee continues to work during a medical-directed quarantine and where the employer continues to pay employee wages, there is no compensable wage loss. However, payment of related medical expenses may be indicated, where there is an established work-relationship of the COVID-19 diagnosis to a known, documented work related exposure. A Medical Only Notice of Compensation Payable may be appropriate to acknowledge the existence of a work-related injury.

Although 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. WE URGE CAUTION IN THE VOLUNTARY ACCEPTANCE OF CLAIMS.

MEDICAL ONLY Claims Considerations

It is difficult to reverse the voluntary acceptance of a work-related claim.

The voluntary acceptance of a “Medical Only” claim or a limited disability claim may be considered a “concession” or acknowledgement to the existence of a work-related exposure.

NOTE: COVID-19 virus claim benefit liability may range from the cost of testing, to medical treatment expense, to wage loss benefit payments, up to fatal claim death benefits to qualified survivors. See WC Act section 307.

Medical Only Claims - “False Alarms”

The employee should be reimbursed for any medical expense incurred in the testing or treatment of a presumed COVID-19 diagnosis, as directed and prescribed by a medical practitioner. Payment is due regardless of a negative test result.

An insurer was ordered to reimburse a volunteer fire-fighter for the costs of medical services after a 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;
  • In existing claims, via Supplemental Agreement for Compensation LIBC-337.

We recommend use of the Notice of Temporary Compensation Payable LIBC-501. This form allows the employer/insurer to initiate wage loss benefit payments with the ability to properly revoke the Notice within 90 days, without any prejudice and without any 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 -"Waiting Period"  

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: WC Act Section 306 (e).

Our Assessment

Since 1915, the Pennsylvania Workers Compensation Act has addressed a great number of "new developments" in work-related injury claims and work-related occupational disease claims.

In our assessment of COVID-19 claims, we employ our accumulated knowledge and experience to assess and respond to these new issues. We are at the early stages of identification and discussion of strategies to address possible COVID-19 exposures and disability issues. We advocate a pro-active claims handling philosophy.

When employee claim reports are filed, recommend implementation of our strategy to document the details of work-related and non-occupational exposures.

We recommend assessment of claim compensability based upon the available information, including documented, credible workplace exposures, with medical evidence of a diagnosis, a work relationship and disability.

We anticipate claim petitions for medical expense reimbursement and wage loss disability benefits as a result of alleged work-related COVID-19 virus exposures.

We will be in a strong position for claim defense, if we have documented all available information of workplace and non-occupational exposures. We believe a well-documented history will provide a strong factual defense.

In past work-related injury and occupational disease claims, we have utilized board-certified experts in infectious disease, for the review of disability claims involving alleged work-related infection as a basis for disability. In past claims, 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.