In Virginia, COVID-19 would most likely be considered an “Ordinary Disease of Life.” Thus, the Claim for Benefits will likely have it selected as that of an occupational disease. In general, if an employee suffers from a disease which the general public is exposed, then the disease may be treated as an ordinary disease of life under Code § 65.2-401. Under this section, “an ordinary disease of life to which the general public is exposed outside of the employment may be treated as an occupational disease for purposes of this title if each of the following elements is established by clear and convincing evidence, (not a mere probability):
- That the disease exists and arose out of and in the course of employment as provided in § 65.2-400 with respect to occupational diseases and did not result from causes outside of the employment, 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.
In order for an injured worker to qualify for benefits, the injured worker must meet the burden by the higher “clear and convincing evidence” burden of proof (higher than the mere “preponderance of evidence” standard needed for all other claims). We would note ”an employee is not required to show that the disease resulted from a ‘single source, to the complete exclusion of all other sources,’ but that the “primary source” was work related. Ross Labs. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991).
We anticipate those individuals who may file a claim for contracting the virus may be those with underlying and pre-existing conditions, such as asthma or other respiratory conditions such as the development of pneumonia. As such, it is important to remember “a preexisting ordinary disease of life which is aggravated by general employment conditions is not compensable under the Act.” See Ashland Oil Co. v. Bean, 225 Va. 1, 3, 300 S.E.2d 739, 740 (1983). In order to overcome the same, the injured worker must prove a direct causal relationship between his/her illness and the conditions of their employment. See Va. Code §65.2-400(B)(1).
Thus, an important starting point in the investigation to any such claim will be to determine if the injured worker had any pre-existing condition, those medical providers who had treated them for their conditions, and the last time for which they had received treatment. If you can show that they had a chronic condition, it may be easier to defend the claim.
Additionally, it will be important to ask how the injured worker maintains they contracted the virus and if there was any known positive diagnosis of any individual with whom they came into contact. If the injured worker is unable to pinpoint the exact moment or person to whom they contracted Covid-19, their resulting claim may be speculative as it is equally possible that they obtained it from the general public. Therefore, it is important to keep in mind that “the mere possibility of a causal relationship is not enough to carry the claimant’s burden of proof.” Oliver, VWC File No. 216-44-47 citing Humphries v. Newport News Shipbuilding and Dry Dock Co., 183 Va. 466 (1945)).
In short, Covid-19 could be a compensable condition, but only if the claimant can meet the higher burden of proof that it did not result from causes outside the employment along with the other elements listed in Section 2 of 65.2-400. It may prove difficult to prove it was not contracted outside employment even if there was exposure on the job, particularly if the claimant lives in a larger city where the exposure to Covid-19 appears most common.