As a result of the current COVID-19 epidemic, many adjusters and workers compensation professionals have been faced with determining compensability for this COVID-19 diagnosis. Those of us who deal with workers’ compensation claims regularly can argue any number of positions, including the issue of occupational disease as it is discussed in the statute.
As a general rule, and by statute in most jurisdictions, employees who have been exposed to an infectious disease that exists not only in their industry but outside of it historically have not been eligible for workers compensation benefits unless that disease is an incident to a compensable injury or occupational disease.
Today, many experts in our industry believe that the statutes will have to be modified given the current predicament of much of our healthcare workforce. For example, there are existing exceptions in Texas to the presumption that infectious diseases fall under the “ordinary disease of life” category. But those exceptions are limited by certain job titles, ie. peace officers, firefighters, first responders and emergency medical technicians). Labor Code section 504.055(b) applies only to a first responder who sustains a serious bodily injury, as defined by Section 1.07, Penal Code, in the course and scope of employment. For purposes of this section, an injury sustained in the course and scope of employment includes an injury sustained by a first responder providing services on a volunteer basis.
With all the turmoil surrounding the issue, adjusters may be uncertain about how to proceed with comp claims filed related to COVID-19 exposure or actual disease. Although some recent published articles speculate that the virus will eventually be considered an “Occupational Disease”, presently the burden of proof falls on the claimant if they wish to seek contribution for a COVID-19 diagnosis on the basis that it is an “occupational disease.”
It is crucial that any adjuster handling a workers compensation claim related to COVID-19 should consider the following factors, among others, in their adjudication: