COVID-19 Legal Update
COVID-19 AND THE LAW: Workers’ Compensation Compensability in Delaware, Florida, New Jersey and Pennsylvania
Questions? Contact Jessica A. Julian, Esquire
Under the Delaware Workers’ Compensation Act, an employee is entitled to benefits for personal injury arising out of and in the course and scope of employment. The employee has the burden to prove by a preponderance of the evidence that the injury was caused by the work accident. Likewise, under 19 Del. C. § 2301, occupational diseases can be compensable if they arise out of and in the course of employment and there is a recognizable link between the disease and some distinctive feature of the claimant’s job (see also Anderson v. Gen. Motors Corp., 442 A.2d 1359 (Del. 1982).
There is a one-year statute of limitations for occupational disease cases. 19 Del. C. § 2361(d). The statute of limitations in an occupational disease case “does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable nature of the injury or disease.” (see Geroski v. Playtex Family Prod., 1996 Del. LEXIS 38 (Del. 1996)). In addition to having to file a petition within a year, claimants may also be required to give notice to the employer within six months of the date on which the employee first acquired such knowledge that the disability was, could have been caused, or had resulted from the employee’s employment. Failure to do so may result in a claimant being unable to collect compensation.
Under 19 Del. C. § 2353 (b), if there is exposure, an employer may be able to argue that a claimant forfeited their entitlement to workers’ compensation benefits by willfully failing or refusing to use a reasonable safety appliance provided for the employee. “Willful self-exposure to occupational diseases” includes:
- Failure or omission to observe such rules and regulations as may be promulgated and posted in the plant by the employer tending to the prevention of occupational diseases; and
- Failure or omission to truthfully state to the best of the employee’s knowledge, in answer to inquiry made by the employer, the location, duration and nature of previous employment of the employee in which the employee was exposed to any occupational diseases.
Questions? Contact Heather Byrer Carbone, Esquire
Workers’ compensation carriers and TPAs are already receiving many workers’ compensation claims for COVID-19 exposure. In Florida, these claims should be treated as exposure and/or occupational injuries. Pursuant to FS 440.02(1) and 440.151(1)(a) and (2), these claims have a higher standard of burden of proof and require claimants to prove causation, using a clear and convincing burden of proof.
F.S. 440.02(1) states:
Any injury or disease caused by exposure to a toxic substance, including but not limited to, fungus or mold, is not an injury by accident arising out of employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.
See also Matrix Employee Leasing v. Pierce, 985 So.2d 631 (Fla.1st DCA 2008).
F.S. 440.151(1)(a) cites:
The term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of a peculiar to a particular trade, occupation, process or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process or employment than for the general public.
See also Seminole Co. Government v. Bartlett, 933 So.2d 550 (Fla. 1st DCA 2006).
Two recent 1st District Court of Appeals’ cases that came out in late 2019, City of Titusville v. Robert Taylor, 1D17-3814 (Fla. 1st DCA, 11/27/19) and School District of Indian River Co. v. Edward Cruce, deceased, 1D17-3342 (Fla. 1st DCA 111/27/19), both confirmed that it is extremely difficult for a claimant to meet these burdens of proof. In those cases, when trial level Judges of Compensation Claims found that the burden of proof was manifestly unfair and attempted to find exposure claims compensable, the 1st DCA reversed and indicated that they “acknowledged the Herculean task for the heightened burden of proof of toxic exposure claims,” but indicated that any change to this burden of proof had to be made through the legislature, not the courts. (See City of Titusville).
Based upon the statutes and case law in Florida, it will be very difficult for an injured worker to prove that exposure to COVID-19 was attributable to work. However, we should be careful to note that each case should be analyzed on a fact basis independently.
Questions? Contact Robert J. Fitzgerald, Esquire
Occupational exposure claims are allowed in New Jersey under NJSA 34:15-31. As with all workers’ compensation claims, the burden of proof is on the petitioner to show a workplace injury, causal relationship and permanent disability by the preponderance of the evidence standard. On the issue of causal relationship, the petitioner must make their burden with demonstrable, objective medical evidence. Given what we know so far, it would be difficult to prove that an employee contracted COVID-19 specifically through their employment environment versus through their non-employment environment.
One exception to this general rule has been carved out for what the state of New Jersey calls a public safety worker. A “public safety worker” includes a member, employee, or officer of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police, a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident, either as a volunteer, member of a Community Emergency Response Team or employed or directed by a health care facility.
Historically, the purpose of this exception was to lessen the burden of proof for first responders who had developed illnesses in the wake of the 9/11 and anthrax attacks. So, if an individual worked as a public safety worker and developed an occupational illness, they would be given a rebuttable presumption that the illness was work-related. While there is not much in the way of case law on this part of the statute, a public safety worker (or someone who comes pretty close to the statutory definition above) who contracts COVID-19 would most likely be given the presumption that it is a work-related injury.
Questions? Contact Michele R. Punturi, Esquire
Pursuant to Section 301 (c)(1) of the Pennsylvania Workers’ Compensation Act, a work-related injury is defined as any injury to an employee (regardless of previous physical condition) arising in the course and scope of employment and related thereto.
Injuries can be traumatically or passively induced, aggravations of pre-existing conditions, psychological in nature, and/or take the form of specific loss or scheduled loss. No matter what the type, any injury must arise in the course of employment to be compensable. An injury arises in the course and scope of employment (regardless of location) when an employee is furthering the business or affairs of the employer. An employee who is not furthering the business or affairs of the employer, but is nonetheless on the premises occupied or under the control of the employer, is required by the nature of the employment to be present on the premises, and is injured by a condition of the premises will also be found to have sustained an injury arising in the course and scope of employment.
For occupational disease claims in Pennsylvania, the controlling provisions of the Act are Sections 301 (c)(1) and 301 (c)(2). Injuries under both sections of the Act can be deemed by the Workers’ Compensation Judge as being pleaded simultaneously. Section 301 (c)(2) refers to enumerated diseases that appear in Section 108 of the Act. The Section 108 diseases enumerated, once established, are entitled to a presumption, and the employee need not prove that the disease arose out of and in the course of employment. This presumption is not conclusive. The employee must prove the existence of a disability as a result of an occupational disease. The time for giving notice generally begins to run upon knowledge, actual or constructive, of a disability in existence resulting from an occupational disease as well as having a possible relationship to employment.
COVID-19 is not yet defined as an enumerated disease. As such, the Omnibus Provisions under Section 108(n) will likely be applicable and the employee must prove:
- Exposure to the disease by reason of employment;
- The disease is causally related to the industry or occupation;
- There is a substantially greater incidence of the disease in that industry or occupation than in the general population.
Establishing that the incidence of a disease like COVID-19 is substantially greater in a specific industry as opposed to the general population is not to be misconstrued as merely establishing a greater risk of exposure. There must be evidence quantifying the greater incidence standard.
If an employee does not meet all of the criteria of Section 108(n), benefits can still be awarded if the elements of Section 301(c)(1) have been established. In that regard, any disease that is caused by employment and related thereto is technically compensable. Causation in this scenario must be supported by evidence of exposure.
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