BREAKING WORKERS’ COMPENSATION ISSUES IN THE COVID-19 CRISIS
There are many issues and concerns that are arising as a result of the coronavirus pandemic and the corresponding full or partial shutdown of the courts, medical facilities and work areas.
If anyone has a coronavirus fact pattern they would like to ask us about please email us (see email addresses at the end of this material) and we will be happy to provide a preliminary analysis without opening a file until requested to do so or it goes into litigation.
At TKCK we will continue to update our clients on all developments concerning this unprecedented event.
DETERMINING LIABILITY IN MASSACHUSETTS FOR A CORONAVIRUS CLAIM OR FIRST REPORT (INCLUDING BEING ASKED TO SELF-QUARANTINE):
- Determine the exact nature of the employment performed by the employee and the employer in general
- Determine if the nature of the employment is such that the hazard (a.k.a an inherent risk) of contracting the disease by an employee is “inherent “ in the workplace. The definition of inherent is “a basic element” or an essential element of the employment. (Section 1(7)a)
- Determine if it was probable that the exposure occurred within the course and scope of that employment rendering the claim compensable or was it more likely than not it occurred outside of their employment i.e. personal travel, family members etc. rendering it not compensable
- If the analysis is that it is not compensable a form 104 should be filed (denial) raise Section 1(7)a and the burden of proof is then with the claimant to prove the essential elements of their claim listed above. If compensable that the claim should be paid without prejudice if liability and causal relationship are reasonably clear with careful attention to the time frames and the medical status of the claimant.
In the
Wayne Langevin
case decided in 2007 the Review Board held that a truck driver who was exposed to bacterial meningitis and claimed it was a hazard of his employment since he was exposed to the public while working was not entitled to benefits. The court reversed the award at the lower level and held that the hazard of contacting meningitis was not an “essential characteristic” of that employment. There was no nexus to the risk of contamination and the specific functions of the employment. The court cited another case which held that workers’ compensation coverage was extended to include infectious disease by statute but only in certain circumstances and not to create a general health insurance.
DOCUMENTING DISABILITY:
Some insurers have been having trouble documenting disability since obtaining medical records, setting up IME’s, obtaining reports, and even having an employee receive treatment has been difficult and at time not possible. At this point as the crisis continues cases should be paid without prejudice and under a strict diary if it is reasonable to conclude that a disability exists. Also consider medical reviews and a more detailed investigation if necessary. Once the crisis is over and if the clamant is still not cooperating with treatment or providing medical documentation then a termination of benefits (if paying without prejudice) should be considered, or file a for 108 and seek a discontinuance of benefits if it is an accepted case. Refusal of reasonable medical treatment, if available, may be grounds for benefits to be denied. Refusal to attend an IME if available may be grounds to forfeit and/ or suspend compensation.
CERTIFIED COPIES OF DENIAL FORMS:
Working from home may make sending certified copies difficult . If so, forms should be filed as necessary and sent by regular mail to all parties even if certified mail cannot be used. We can help with certified forms and if it is raised as a defense simply document that the form could not be sent certified as a result of the governments mandate that people work from home.
POTENTIAL USE OF TELEMEDICINE:
We have received a few questions regarding whether telemedicine measures (i.e., doctor visits via telephone) will be implemented in any of the New England states, and how such visits/records would be interpreted in workers’ compensation litigation. A review of the case law in each of the states revealed that the use of telemedicine in the workers’ compensation setting has not been addressed by any reported case in each of the six states. Thus, treatment of injured employees via telephone and the use of such medical records in litigation will be an issue of first impression.
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UPDATE FOR HEALTHCARE EMPLOYERS
Hospital and the other healthcare facilities and entities are uniquely impacted by the ongoing COVID-19 situation. As discussed in TKCK’s prior e-mail blast, such entities are subject to a specific statutory provision dealing with contraction of infectious or contagious diseases. See M.G.L. c. 152, § 1(7A). This update will specifically address the unique issues that healthcare employers are currently facing. Please note this advisory opinion does not address the potential FMLA and ADA issues that may arise from general prophylactic/infectious disease control quarantining versus actually contracting an illness which turns into an incapacitating disease from COVID-19. This update is also our best general opinion on these issues; however, it should be noted that the situation is constantly evolving and every case must be looked at for the unique and specific facts that may pertain to each case.
As noted in our prior correspondence, in Massachusetts the contraction of contagious or infectious disease is not considered a compensable injury unless the risk of exposure is inherent in the workplace. Section 1(7A) contains a provision which states if the nature of the employment is such that the hazard of contracting such infectious or contagious diseases is inherent in the employment, then disability resulting from the disease is compensable. See M.G.L. c. 152, § 1(7A). The risk of exposure to infectious or contagious diseases is certainly inherent in the employment of hospital/healthcare workers.
However, a mere exposure to COVID-19,
without contracting a disabling illness or disease
, will not be considered a compensable work related injury.
“Personal injury” is not limited to compensable injuries or injuries that are likely to cause incapacity, but includes “whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability.”
Crowley’s Case
, 287 Mass. 367 (1934),
quoting from
Burns’ Case
, 218 Mass. 8, 12, (1914). See also
Ames v. Town of Plymouth
, 19 Mass. Workers’ Comp. Rep. 150 (2005) (where air tests showed asbestos levels well in excess of allowable limits, workers exposed to that condition failed to meet their burden of proof where they produced no evidence of acute reaction to the dust and they failed to show any “lesion or change” as a result of that exposure).
The important question and distinction then becomes whether the healthcare worker actually contracted and tested positive for COVID-19, and for all intents and purposes developed a disabling illness that results in an incapacity to earn wages?
In a hospital/patient care setting, a person who tests positive is certainly prohibited from working if only to prevent the spread to patients and co-workers, and may very likely be medically disabled form working. In this scenario, it is assumed that there are patients or co-workers present in the hospital who have the COVID-19 virus, perhaps in a single area of the hospital being quarantined or several designated areas of the hospital. These patients will certainly be treated or cared for by a number of doctors, nurses, CNAs, pulmonary therapists, phlebotomists, x-ray technicians, ultrasound technicians, cardiac technicians, etc. Additionally, cleaning/custodial workers and administrative employees working in healthcare facilities are also at significant risk of infection. There are a great number of patients that are not yet diagnosed with COVID-19 but are presenting for medical evaluation and treatment, and those patients are potentially transmitting the virus unwittingly to all of these workers every step of the way.
How do you fairly deal with whether that worker contracted the disease due to exposure to a patient or co-worker at your facility, as opposed to being exposed on the train, a bus, or at home? In cases of exposure to other diseases such as Hepatitis C or HIV, exposure is more easily identifiable. In those cases, we require very specific and certain proof of causation by verifying identity of the transmitting infected patient, proof of the mechanism of transmission (i.e., needle stick, bodily fluid exposure, etc.), and ruling out personal/individual exposure (i.e., IV drug use, sexual transmission or other means of contraction). With our current knowledge of how COVID-19 spreads, it would be nearly impossible for a healthcare worker to prove causation to this degree of medical certainty. The current literature suggests that COVID-19 is highly contagious and easily transmissible through airborne or human contact exposures, and likely widespread.
In our opinion, for the type of pandemic infectious and contagious disease we are currently facing, the Massachusetts Workers’ Compensation Act will apply a quasi-presumptive causation standard. Under such a standard, if an individual can show that they were working in a healthcare, direct-patient care setting in which COVID-19 patients were present (or may very well have been present and sent home without confirmatory testing), then the exposure would be presumed to have occurred at work and the injury would be considered compensable; assuming, of course, they satisfy other requirements under the Act.
While the rest of society will not qualify for workers’ compensation benefits for COVID-19, the healthcare employees described above likely will. The next question then becomes what compensation benefits are they entitled to? This answer is the same as any routine compensable workers’ compensation injury—weekly lost wage disability benefits and medical benefits.
These injured employees will still be subject to the five-lost-days rule. In Massachusetts, an injured employee must be disabled for more than five days before they may begin collecting weekly disability benefits. Further, the first five days of disability are not compensable unless the employee is disabled for more than twenty-one days.
Example 1 – A healthcare employee is confirmed to have contracted COVID-19 through a positive test, and becomes ill and disabled for ten days. This employee will only be entitled to compensated for days six through ten under the workers’ compensation claim.
Example 2 – A healthcare employee is confirmed to have contracted COVID-19 through a positive test, and is again ill and disabled for ten days, but is considered contagious for fourteen days (from either the date of diagnosis, or from a medically-defined contagious period) and must remain quarantined for the fourteen-day period. This employee would be entitled to disability benefits for days six through fourteen because the required quarantine period stemming from their illness precludes them from returning to work.
Example 3 – A healthcare employee is confirmed to have contracted COVID-19 through a positive test, and is either ill and disabled or quarantined for over twenty-one days. This employee would be entitled to benefits from day one through the end of the quarantine period.
Example 4 – A healthcare employee is merely suspected to or considered to have been exposed to COVID-19 but never tests positive for COVID-19 and never becomes sick or disabled, but is required to be quarantined for fourteen days due to the potential exposure and therefore cannot work. This employee will
not
be compensated under the workers’ compensation claim. These individuals will not be compensated by the Workers’ Compensation Act based on the fact they never actually contracted the illness despite the suspected exposure. This category of employees may be paid regular sick time, vacation pay, personal leave pay, or one of the other wage replacement benefits for which they may be eligible. Any employer could voluntarily pay wages for lost time, not compensable under the Workers’ Compensation Act, as a measure to deal with a one-time extraordinary circumstance. There is some form of wage relief benefit under consideration by the federal government for employees who don’t have sick time available and face going without pay during a COVID-19 related absence from work, and we suspect that may be coordinated through the state unemployment office infrastructure based on clearly defined eligibility criteria. However, that has not yet been established.
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ADJUSTMENT TO §35 PARTIAL BENEFITS BASED ON ACTUAL EARNINGS
We have received a few questions regarding how to handle injured employees who are currently receiving § 35 partial incapacity benefits but are losing their part-time or modified-duty jobs due to coronavirus shutting down businesses.
There is existing Massachusetts case law addressing the impact of economic depression on workers’ compensation. “The statute contemplates compensation for diminished capacity to earn wages, and the injured employee, in common with others, must bear the loss resulting entirely from business depression.”
Durney’s Case
, 222 Mass. 461, 462 (1916). Where an employee’s inability to work or his reduced earnings are due
solely
to labor market conditions, compensation is not warranted. See
Sulham’s Case
, 337 Mass. 586 (1958);
Akins’ Case
, 302 Mass. 562 (1939);
Hudson’s Case
, 244 Mass. 330 (1923). However, the case law indicates that an award of partial benefits is warranted where the employee’s inability to earn wages is the result of a combination of the physical disability and the unfavorable labor market conditions. See
Rival’s Case
, 8 Mass. App. Ct. 66 (1979).
Therefore, if an injured employee is requesting an increase from § 35 partial disability benefits to § 34 total disability benefits, you should deny that request. Their current inability to work the part-time or modified-duty job presumably has nothing to do with increased physical disability, but is instead impacted by the current economic and labor market conditions that apply to the entire workforce. In the current situation, these employees were receiving partial benefits and were capable of modified duty work last week, and now an outside economic factor is responsible for their inability to earn those wages,
not
the injury. Since nothing has changed medically, they would not be entitled to § 34 total disability. However, an adjustment to the level of weekly § 35 benefits is warranted. If the injured worker was receiving § 35 based on actual earnings, and now the actual earnings are minimized, those weekly amounts should be adjusted according to what they are earning now and perhaps up to the maximum § 35 rate (if that is warranted by the calculation).
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MAINE– ISSUES OF COMPENSABILITY
Maine has a specific Occupational Disease Law under which COVID-19 could be included. See 39-A M.R.S. § 601
et. seq
. The law states that incapacity to work arising out of and in the course of employment resulting from an “occupational disease” constitutes a personal injury under the Workers’ Compensation Act. 39-A M.R.S. § 602. Section 603 defines “occupational disease” as “only a disease that is due to causes and conditions
characteristic of a particular trade, occupation, process or employment
and that arises out of and in the course of employment.” 39-A M.R.S. § 603. Thus, in order to qualify as compensable, the contraction of COVID-19 must be characteristic of the particular employment. The healthcare industry is likely the only type of employment in which contraction of COVID-19 will be considered “characteristic of a particular trade, occupation, process or employment.”
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CONNECTICUT – ISSUES OF COMPENSABILITY
In Connecticut the analysis is focused on the specific facts of each case as well as the nature of employment. In order for an infectious disease to be compensable it must fall into one of three categories. Exposure must be by accident, an occupational disease or by a cumulative process. The facts of each case must be carefully considered and a decision made on a case by case basis. Compensability of infectious diseases in this state would be difficult to establish within the three categories of injury. Our attorneys in Connecticut are ready to assist you in this analysis and with filing the proper forms.
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If anyone has a coronavirus fact pattern they would like to ask us about please email the following attorneys (depending on the state) and we will be happy to provide a preliminary analysis without opening a file until requested to do so or it goes into litigation.
Massachusetts claims:
Vincent Tentindo, Esq. –
[email protected].
Susan Kendall, Esq. –
[email protected].
John Keefe, Esq. –
[email protected].
Joseph Durant, Esq. –
[email protected].
RHODE ISLAND CLAIMS:
Karen Finley, Esq. –
[email protected].
Christopher Fiore, Esq. –
[email protected].
CONNECTICUT:
Peter LoVerme, Esq. –
[email protected].
Lynn Raccio, Esq. –
[email protected].
Patrick Battersby, Esq. –
[email protected]
NEW HAMPSHIRE:
Richard Florino, Esq. –
[email protected].
MAINE AND VERMONT:
James O’Sullivan, Esq. –
[email protected]