There are a number of ways that the COVID-19 pandemic has impacted the law over the past two years. One of these areas is workers’ compensation cases. Throughout the pandemic, legislators and lawyers have had to wrestle through when a COVID-19-related injury or death gives rise to a claim through workers’ compensation. As a result, Virginia addressed this issue by enacting a statute to guide people who have a claim in determining their eligibility. Keep reading to see if you may qualify for a workers’ compensation benefit from contracting COVID-19 in the workplace.
What type of benefit can I claim?
Generally speaking, if you have been injured while you are at work, you are entitled to claim workers’ compensation benefits through your employer in order to recover for your losses. Most people are familiar with this function of workers’ compensation.
There are also many other types of benefits available to you through workers’ compensation, including death benefits. In the unfortunate event that a loved one passed away due to some accident or condition in their workplace, an eligible beneficiary can claim a death benefit through workers’ compensation. To understand more about workers’ compensation benefits and whether or not you are an eligible beneficiary, check out our post breaking down the different types of benefits here.
When can I claim a benefit?
Workers’ compensation benefits are available to workers or eligible beneficiaries in the event that an employee’s injury or death arises out of the course of his or her employment.
You may be wondering how to know when an injury or death occurs during the course of employment. Generally, it is presumed that an injury or death arises out of the course of a person’s employment if it actually occurs at the place of employment.
Not as location-specific however, are claims based on injury or death from an occupational disease. Occupational diseases are diseases that arise out of the course of a person’s employment. However, they do not include diseases to which the general public is commonly exposed outside of that employment, which is why COVID-19 makes an especially tricky disease on which to base a workers’ compensation claim.
To show that a disease arises out of the course of employment, the circumstances need to show the following elements:
- A direct causal connection between the conditions under which work is performed and the occupational disease;
- It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
- It can be fairly traced to the employment as the proximate cause;
- It is neither a disease to which an employee may have had substantial exposure outside of the employment, nor any condition of the neck, back or spinal column;
- It is incidental to the character of the business and not independent of the relation of the employer and employee; and
- It had its origin in a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.
There are two ways that you can show your work conditions directly caused the disease. The first is by direct evidence; in other words, you must definitively point to the sequence of events that led to your contracting the disease. The second way to prove direct causation is by circumstantial evidence; in other words, the circumstances surrounding your contracting the disease allow it to be fairly traced to your employment. Part of fairly tracing exposure to your employment is eliminating substantial exposure elsewhere.
Because COVID-19 is an infectious disease to which the public at large is exposed, your claim may not fit squarely within the occupational disease category.
However, if you belong to certain occupations you may be entitled to a presumption that you contracted COVID-19 in the workplace, and accordingly your case of COVID-19 will be treated as an occupational disease. These occupations include:
- Healthcare providers (if they have been directly involved in diagnosing or treating patients who are known or suspected to have COVID-19)
- Regional jail officers
If you belong to one of these occupations, you also need to have documentation of a positive COVID-19 test and have shown symptoms that required medical treatment. In order to overcome that presumption, your employer will have to show by a preponderance of the evidence “evidence to the contrary.”
Even without the presumption, you may be able to prove that your exposure to COVID-19 was directly caused by your work conditions or some risk associated with your work. But the most difficult part would be proving that there was no substantial exposure to the disease outside of the work environment. This could prove to be difficult, but not impossible.
Before you start to think you would never be able to make a claim for your COVID-19-related injuries or a death caused by the virus, there are in fact limited circumstances in which you may be able to claim a benefit for injury or death caused by an ordinary (i.e., not occupational) disease of life.
To make a claim based on an ordinary infectious disease, you will need to show that the disease exists and arose out of and in the course of employment and either:
- The infectious disease follows incidentally from an occupational disease;
- The deceased was employed in healthcare or emergency services delivering such services when the disease was contracted; or,
- The disease was somehow characteristic of the employment or caused by conditions unique to the employment.
In other words, one of these three factors must be present in your claim in addition to the two requirements discussed previously which show that the ordinary disease of life arose out of the course of your employment.
Making a claim based on an ordinary infectious disease will be the most challenging if your claim is premised on the third factor – that the disease was characteristic of the employment or caused by conditions unique to the employment. To back this type of claim, you should be prepared to show that due to your job requirements, your exposure went beyond what a typical member of the public would experience. You could likely prove this unique type of exposure if your job requirements were qualitatively different and much more likely to lead to infection than what an ordinary person’s exposure would be.
How sure do I have to be that I was exposed at work?
While it may seem obvious to you that you were exposed while working, precise contact tracing has often proven to be a complex and highly indeterminate task. If your condition can be proven to be an occupational disease, then the Workers’ Compensation Commission will require a preponderance of the evidence, or a more likely than not, standard. On the other hand, if the Commission determines that your condition is an ordinary disease of life it will require “clear and convincing evidence” to claim a benefit. In other words, merely showing that exposure to COVID-19 at work was more probable than exposure anywhere else will not be enough to back up your claim.
Because of this high standard, proving with sufficient certainty that you contracted COVID-19 during the course of your work will be the biggest challenge to overcome in making a successful claim.
This can be done most effectively by doing a deep dive into your activities during the incubation period for the virus (which the CDC now says is up to 14 days) to rule out other possible sources of exposure. Think about what you were doing two weeks before your positive test. Were you working any part-time jobs? Did you go to church or any large social gatherings? Did you travel recently? Did any of your close family or friends test positive?
If you can rule out activities where exposure was possible, you may be able to make a clear and convincing case that it is practically certain you contracted COVID-19 while at work and make a successful claim for workers’ compensation benefits.
Hiring an attorney for your claim
If you need an attorney to walk you through the process of making a workers’ compensation claim because you contracted COVID-19 at work, Osterbind Law is ready and willing to help. We offer free strategy sessions for all potential workers’ compensation cases so that you will know how to proceed, even if we cannot help you. Contact us today to set up your free strategy session.
