COVID-19 and the Pennsylvania Workers' Compensation Act
Infectious diseases are nothing new to Pennsylvania Workers' Compensation system. MRSA, Meningitis, Hepatitis, and Swine Flu among others, have received prior treatment by Pennsylvania Courts. The Pennsylvania Workers' Compensation Act defines "injury" to include diseases caused by employment and related thereto. Employees can pursue a "disease as injury" claim or assert a claim under the "occupational disease" provision of the Act.
Disease as Injury Claim
An employee may assert a "disease as injury" claim in same fashion he/she would assert a more common work-related injury, such as an injured back or a laceration. The infected employee must establish through substantial, competent and unequivocal medical evidence that the infection occurred during the normal course and scope of employment and was related thereto.
Occupational Disease Claim
Alternatively, an employee may pursue the claim under a separate provision of the Act which contains several specifically enumerated "occupational diseases," including Black Lung and Asbestosis. The Pennsylvania legislature has associated the enumerated occupational diseases with specific workplace exposures. Therefore, the infected employee is given the benefit of a rebuttable presumption that a workplace exposure caused the enumerated occupational disease.
If the disease in question is not within the list of "occupational diseases," the employee can still pursue the "occupational disease" claim by presenting medical evidence showing it is a disease "(1) to which the claimant is exposed by reason of his employment, and (2) which [is] causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population." 77 P.S. § 27.1(n). These "catch all" diseases, like the enumerated diseases, carry a rebuttable presumption of being causally related to the employee's occupation.
Claim Handling and Defense
Again, COVID-19 is not the first highly contagious infectious disease that our Workers' Compensation system has dealt with. Because many infectious diseases are ubiquitous and often difficult to treat, it is challenging for the employee to establish the source of the infection. Such claims may be defended, in part, by establishing other equally plausible non-work-related exposures by the employee during normal activities of daily living. Employers can also present expert medical evidence establishing that a single source of infection (i.e., the workplace) cannot be determined within a reasonable degree of medical/epidemiological certainty.
Presently, it is difficult to predict how successful an employee will be in attempting to establish that COVID-19 is an occupational disease which is "related to an industry or occupation with a substantially greater incidences than in the general population." As of this writing, the Pennsylvania Department of Labor and Industry website has suggested that the healthcare industry may be such an "industry or occupation." Such assumption does not appear to be supported by any available empirical data or science.
It is more likely an employee will pursue a traditional "disease as injury" claim and attempt to establish that the infection occurred as a result of a workplace exposure. The successful defense of such a claim will largely depend on the investigation and information developed regarding the claimant's work and non-work activities and potential exposures. Some assume that the employee with the initial diagnosis will have a more difficult time establishing a workplace exposure, while employees subsequently diagnosed may claim their infection was directly related to their exposure to the initial employee. While this has some commonsense appeal, depending on age, non-work-related activities, potential exposures, and the general health of the infected employees, the first diagnosed employee may not be the original source of the workplace infections. That is why it is so important to initially develop as much information as possible regarding the employee's travel, conduct, contacts, and non-work-related activities within the days and weeks leading up to the signs or symptoms of infection.
If you are an employer and have any questions about COVID-19 and workers' compensation, please contact a MacDonald Illig attorney.
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