Written by Claire Carr, Esq.
Edited by Rachel Riordan, Esq.
Workers compensation’ claims based on COVID-19 are on the rise. Adjusters and employers are starting to receive questions about these clams and the circumstances under which they may be compensable. This article examines COVID-19 claims as an occupational disease under the Virginia Workers’ Compensation Act and how we anticipate these claims being handled by the Virginia Workers’ Compensation Commission.
When dealing with diseases, the Virginia Workers’ Compensation Act differentiates between an “Occupational Disease” and an “ordinary disease of life.” Virginia’s Occupational Disease statute, Va. Code §65.2-400(A), defines an occupational disease as “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment” (emphasis added). Under Va. Code § 65.2-400(B), to meet this burden, the employee must prove (1) a direct causal connection between the work conditions and the occupational disease; (2) that the disease can be seen to have followed as a natural incident of the work as a result of the exposure due to the nature of the employment; (3) that the disease was proximately caused by the employment; (4) that it was not a disease to which he would have had substantial exposure outside of employment; (5) it was incidental to the character of the business, and not independent of the employee/ employer relationship; and (6) the disease originated in a risk of employment and flowed as a direct consequence of it.
The elements above are typically proven with competent medical evidence. The most obvious types of occupational disease claims in Virginia are conditions such as Asbestosis, Pneumoconiosis, Byssinosis and Silicosis, which are commonly related to coal mining in Virginia, skin conditions caused by chemical exposure, respiratory conditions caused by the inhalation of noxious fumes (bleach, chemicals) or mold peculiar to the individual’s work environment. The trickier class of claims are diseases which are more common to the general public. It may seem at first glance that since the occupational disease statute specifically excludes ordinary diseases of life, that they are not compensable. Ordinary diseases of life, however, can still be compensable if certain additional elements are met by a higher standard of proof. If a claimant cannot meet the burden of proof necessary to establish a condition is an occupational disease, by definition he or she will not be able to meet the more rigorous standard of Va. Code §65.2-401, addressing circumstances when an ordinary disease of life may be compensable.
Ordinary Disease of Life
Va. Code §65.2-401 provides that an ordinary disease of life to which the public is exposed outside of employment may be treated as an occupational disease if the elements of that section are established by clear and convincing evidence (more than a mere probability required for standard occupational disease claims). Common types of diseases which may be compensable as an ordinary disease of life are conditions such as Asthma, Hepatitis, Lyme Disease, E-Coli, HIV, COPD, Contact Dermatitis, MRSA, Carpal Tunnel Syndrome and Hearing Loss (the Virginia legislature defined Carpal Tunnel Syndrome and Hearing loss as “diseases” rather than cumulative injuries). Virtually any disease to which the general public may be exposed can become a compensable ordinary disease of life if the requisite elements are met by the higher standard of proof.
There have not yet been any cases in Virginia addressing the compensability of COVID-19 related claims. Indeed, there are no cases in Virginia addressing any pandemic virus as an occupational disease or a compensable ordinary disease of life. Because the Coronavirus is now a pandemic affecting every continent in the world and has infected so many people across all countries, socio-economic classes, races, religions, vocations and professions, it will most likely be considered an “ordinary disease of life” since the general public is obviously exposed to it outside of particular employments.
Under §65.2-401, a COVID-19 claim can be a compensable ordinary disease of life if the claimant can establish by clear and convincing evidence that:
- it arose and arose out of and in the course of the claimant’s employment as provided in §65.2-401, and did not result from causes outside of the employment (emphasis added) and
- that one of the following exists:
- It follows as an incident of occupational disease as defined in this title; or
- It is an infectious or contagious disease contracted in the course of one’s employment in a hospital or sanitarium or laboratory or nursing home as defined in § 32.1-123, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel referred to in § 65.2-101; or
- It is characteristic of the employment and was caused by conditions peculiar to such employment.
Burden of Proof
It is important to understand that Subsection 1) above is the first hurdle. If a claimant cannot eliminate outside causes as the source of his exposure by clear and convincing evidence, it will not be found to be a compensable ordinary disease of life. Clear and convincing evidence is a level of proof which is higher than a preponderance of evidence utilized in civil cases (more likely than not or 51% likelihood) but less than “beyond a reasonable doubt” found in criminal cases. The US. Supreme Court has defined “clear and convincing” proof to mean that the evidence is highly and substantially more likely to be true than untrue: that the fact finder is convinced the factual contention is “highly probable”. Colorado v. New Mexico, 467 U.S. 310 (1984).
While Subsection 2(b) quoted above does specifically address a situation in which a worker in a hospital, a lab, a nursing home or working as an EMT contracts a contagious disease, that subsection is still read in conjunction with Subsection 1. It does not state that an employee in those stated occupations is deemed to have contracted their disease as a result of their employment. Those same workers must still establish by clear and convincing evidence that the Coronavirus was not contracted outside of their employment, such as from other family members, roommates, friends, or from visiting a post office, pharmacy, church, the grocery store, etc. It is especially difficult for a claimant to show this when the incubation period of the virus can take up to 14 days. Retracing precise exposure points from two weeks prior during a time when a claimant has been in the public or around other people is almost impossible. It is a very difficult burden to establish under the law as it currently exists, and it is generally expected by the bar that most COVID-19 claims will not be compensable as the law currently stands.
Possible Compensable Scenarios
It may be easier for healthcare workers in the earlier days of the virus’s spread in Virginia to meet their burden by showing that they worked closely with infected persons before there were many known positive cases. As the virus became more widespread, however, it will be more difficult for them to establish that it was not contracted outside of their employment. It is certainly possible that a narrow window of cases exists where a claimant may be able to meet the requisite burden of proof that it was not contracted outside the employment.
For example, if a health care worker can establish that he or she worked closely with patients who tested positive for the virus for 10-12 hours a day 5 days a week, that he or she lives alone without roommates or a spouse, has maintained strict social distancing practices, has worn personal protective equipment in all encounters outside of the employment (grocery shopping, church, doctor/dental appointments, haircuts, etc.), spends most hours at work treating Coronavirus patients and then returns straight home, that worker has a better chance of proving his or her claim than someone who lives among other people who are also being exposed outside the home, or who is seen not maintaining social distancing outside of work and who doesn’t wear a mask while outside the home. The facts of each case will be evaluated on its own merit on a case by case basis.
Possible Change to the Law
Prior to COVID-19, in Virginia there already exist some exceptions which were created to protect certain types of workers. The Heart and Lung Presumption was created in 1976 to protect emergency first responders, law enforcement and firefighters who contract certain respiratory diseases, heart disease, hypertension, certain cancers, hepatitis and HIV. The listed conditions are presumed to be occupational diseases suffered in the line of duty and are covered by the Act unless the presumption is overcome by a preponderance of evidence to the contrary. In other words, the burden of proof is shifted to the employer to disprove the causal connection.
As in many states, in response to the COVID-19 crisis, there has been a proposal by a group at Change.org to expand Workers’ Compensation coverage in Virginia to protect healthcare workers similar to the Heart and Lung Presumption. The move is to create a presumption that COVID-19 infections are compensable occupational diseases, not mere ordinary diseases of life. This presumption would mean healthcare workers would be relieved of the burden of proving that their infection was related to their employment and was not acquired from outside the employment. In addition, there has also been a proposal to amend §65.2-503, the permanent partial disability statute. Based on the medical evidence that COVID-19 infections may cause permanent loss of lung capacity, the proposal seeks to include lung damage to Section 503. It would provide for 100 weeks for total loss of lung capacity, so a stated percentage of impairment will be equivalent to same number of weeks of permanent partial disability benefits. Any changes to the Act, if made, will not apply retroactively.