In light of the pandemic and its widespread impact on employee populations, many states have grappled with their workers’ compensation laws and regulations. These impacts are associated often with substantial medical costs and in some worst cases, death with lifetime survivor benefits. Regarding the COVID-19 pandemic, involving as it does a highly contagious and always changing virus, logically, it is almost impossible to prove the point at which the virus enters the body. Depending on the viewpoints in individual states, some legislatures have written into their laws a lowering of burdens and thresholds for establishing a compensable COVID-19 claim, resulting in those infected with COVID-19 having an easier time proving a work-related infection. Some of these changes are job specific, with the mindset of favoring first-responders, medical personnel, and others. Some of these changes are driven by an effort to “share” the COVID-19 burden with workers’ compensation carriers and self-insured employers. With a minor exception, Pennsylvania has not altered its burdens, keeping it difficult to prove workplace COVID-19 contraction to “within a reasonable degree of medical certainty” and by way of “substantial competent medical evidence”.
Employers repel allegations of workplace COVID-19 contraction citing the well-publicized nature of the virus. It is a highly contagious pathogen capable of being acquired by even minimal contact with nearly any infected individual, whether it may be a friend, relative, or stranger, in almost any setting, except for the most well-ventilated areas. Judges, now, are beginning to decide these cases.
On May 26, 2022, a Philadelphia Workers’ Compensation Judge decided one of the first COVID-19 exposure-related cases that involved a Fatal Claim and a spousal survivor. Without question, these are always sympathetic cases – facts, medicine, and law aside- this Judge decided the case in the claimant/widow’s favor. Here, a widow filed a Fatal Claim petition alleging the decedent passed due to a COVID-19 exposure in the course and scope of his employment as a shuttle bus driver. This decedent transported travelers to and from the Philadelphia International Airport. He began to experience symptoms as of April 5, 2020. In the coming weeks, the decedent unfortunately experienced a decline in his health, resulting in eventual hospitalization and the use of a ventilator. Eventually, he passed. The widow testified she had not tested positive for COVID-19 around the date of what she believed to be the decedent’s workplace exposure, although she worked outside the home as a caregiver. A cousin also resided in the family home, and this cousin also worked outside the home as a caregiver.
In support of her medical burden, the widow presented the testimony of a Philadelphia-area physician, board-certified in internal medicine, with a focus on infectious diseases. The widow’s medical expert reviewed the decedent’s medical records evidencing the contraction of COVID-19 and subsequent death from the disease. Ultimately, the widow’s medical expert related the decedent’s passing to a work-related COVID-19 exposure by opining there was a significant risk for virus exposure at the time of April 2020 in the closed environment in which the decedent worked, that is, driving a bus. However, the widow’s medical expert also acknowledged that exposure could have occurred outside of work as well.
The employer presented fact witness testimony of a general manager, to discuss the lack of documented COVID-19 cases amongst employees at the time of the decedent’s illness, as well as measures taken to limit the spread of the virus. However, there was an acknowledgement that cases were confirmed days after the decedent’s symptoms occurred, when contact tracing policies were implemented. In addition, the employer presented a board-certified physician in internal medicine and infectious diseases from South Carolina, who cited the risk of exposure by other working individuals in the home, as well as the plethora of other opportunities for contracting the disease, including performing basic household tasks like grocery shopping.
Ultimately, the judge found the widow’s medical expert to be credible and granted the Fatal Claim petition. Considering both experts held similar credentials in infectious disease treatment, the workers’ compensation judge tipped the scales against the employer’s medical expert because that expert worked in South Carolina, lacking – she felt – experience in treating patients in the Philadelphia area and thus, awareness of exposure numbers in the Philadelphia area. In addition, the judge credited the widow’s testimony, noting the widow possessed firsthand knowledge of the decedent’s condition. The judge found it relevant, via the testimony of the widow, that no one else in the household tested positive for COVID-19 around the time the decedent contracted the virus. The judge also noted the employer did not begin contact tracing until after the period in which the decedent became ill. In addition, it was discussed the employees were not wearing masks, temperature checks were not being performed, and as of April 7, 2020, when contract tracing began, there were 18 employees reporting COVID-19 symptoms.
Comment: While this case is not representative of all COVID-19 claim petitions that have and will be decided, it informs all employers facing claims like these on how best to build a defense with the facts available and the medicine as commonly understood. Again, keeping in mind the understandable sympathies associated with a death case, employers should carefully investigate all cases, present strong evidence of COVID-19 workplace prevention protocols, and back this up with a very well-informed expert providing opinion on the infection source. Keeping in mind that what occurred in early 2020 likely differs from the ground game in 2021 and 2022, the best defense in cases like this involves presenting effective evidence of the virus’ ability to spread, ability to develop new variants, and the ease with which it can enter the body at any time. As with all highly fact- and medical-specific cases, be prepared to work closely with counsel in formulating a defense tailored to the situation at hand and to evaluate exposure to assess the matter for resolution, leveraging the significant medical burden faced by claimants in the setting of a highly contagious virus.
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