As COVID-19 continues to challenge the nation, the workers’ compensation industry is busy grappling with its own questions regarding the impact and responsibilities surround the virus. Compensability for employees who claim they contracted the illness on the job remains a very big question. We have already seen a push in numerous states to extend presumptive coverage to workers beyond those traditionally considered “first responders.” This new class of injured worker is now called the “front line worker.” 

At least one state, Illinois, has beaten a hasty retreat on this after a court interceded and said their ruling on rebuttable presumptions was not within their realm of authority to issue. It remains to be seen what happens in other states.

But the question that remains unanswered for many is, we really do not pay for communicable viruses that exist in the general population, do we? The answer may not be as clear as many would prefer. 

Tom Robinson wrote of an interesting case in his Work Comp Writer blog the other day about a case from Hawaii that occurred in 1978. A United Airlines flight attendant, working an overnight route of Honolulu to Chicago and back, caught what was determined to be the flu while on that trip. After she returned, she visited the doctor, received the diagnosis, and submitted her “med only” claim for workers’ compensation. It was approved by the Director of Labor and Industrial Relations. Her employer, however, appealed the decision, with one part of their argument contending that “no compensation could be awarded for a simple communicable disease such as the flu.”

Mr. Robinson gives a terrific summary to the story, but the bottom line was the employer lost their appeal. As he explains in his blog:

At the time of her claim, continuing to now, all employees covered by the Hawaii Workers’ Compensation Act enjoyed a general presumption of compensability [see Hawaii Rev. Stat. Ann. § 386-85]. As construed by Hawaii’s courts, the presumption imposes on the employer both the burden of going forward with the evidence and the burden of ultimate persuasion. In addition, under a line of cases decided by courts in the 50th state, all reasonable doubts must be resolved in favor of the claimant.

United was forced to reimburse her for the doctor’s bill, which was a whopping $26.35. In hindsight it hardly seems worth the effort. It was one of those situations where you can stand on principle but die by your own sword in the effort. 

Nonetheless, Hawaii appears to be an outlier in the “simple communicable disease” arena. Using the website (excuse the blatant product plug), we learn that there are 23,654 rules and statutes that govern the workers’ compensation systems across the 50 states, DC, federal and Longshore. Of those, only 54 contain the word “virus.” 5 contain the word “viral.” Almost all of them that mention either word relate to first responders or healthcare workers who are routinely exposed to bloodborne pathogens. A few of them are related to security requirements in EDI transactions, and their use of the word virus only relates to the computer software variety. Most states have never formally addressed the handling of communicable viral disease in the traditional workplace.

COVID is changing that. Many states are still holding that a preponderance of evidence is required to prove an infection happened in the workplace. Others, however, are changing the standard for this disease. Arkansas has suspended a law that prohibits workers’ compensation benefits for exposure to generally communicable diseases. Kentucky has expanded presumptive benefits for a large number of “front line workers;” those employees working in businesses deemed essential. Illinois’ stalled attempt also included a wide swath of employment categories, which I detailed in another article recently.

The bottom line is that we are at the forefront of a potential paradigm shift with COVID-19. We have only just begun to grapple with risks that were previously “in the wild” but may soon become the responsibilities of the workers’ compensation industry. In a society bent on finding others to bear the burden for problems that arise, our industry stands as a somewhat oblivious target for authorities proposed solutions. 

COVID has changed many lives, but for the workers’ compensation industry, it may produce some of the most significant changes of any economic sector. We will be grappling with COVID long after the general public we protect has forgotten it and returned to whatever new normal this episode creates. 


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