Presumption in workers’ compensation typically requires that an employer accept full responsibility for certain diagnoses, with presumption laws varying by jurisdiction.
And, with the recent pandemic and national healthcare emergency in the United States, presumption in workers’ compensation can often mean accepting responsibility for the contraction of a highly communicable virus that carries a multitude of implications both for the employee and the employer.
COVID-19 and Changes to Workers’ Compensation Laws
Several jurisdictions modified their workers’ compensation statutes to address factors that increase an employee’s risk of disease exposure.
Under these new standards, lawmakers presume that certain workplace illnesses result from occupational exposure. For example, some presumption laws assert that certain cancers are a function of occupational exposure regardless of what evidence-based medicine may indicate.
During the COVID-19 pandemic, workers’ compensation claims often involved questions about responsibility for workplace exposure to a highly contagious virus.
This broad, vague definition of presumption in workers’ compensation has made it even more difficult to distinguish between ordinary diseases of life and occupational diseases in the workplace.
Certainly, there are those professions and/or workplaces that historically carry a higher risk for disease secondary to that occupation, such as black lung among coal workers.
A more recent example of these mitigating circumstances in workers’ compensation is the COVID-19 pandemic, during which various jurisdictions issued directives, executive orders, and in some situations, even passed changes to the statute, maintaining that certain ordinary diseases of life are presumed to be a function of occupational exposure.
Determining Whether COVID-19 Was Contracted at Work
The question then becomes: how can a treating physician (or other healthcare provider such as a physician’s assistant or nurse practitioner) determine if an individual infected with COVID-19 contracted this disease as a function of an occupational/workplace event or not?
A question made even more difficult to answer when dealing with a mutating virus less than two years old that we are still learning more about every day.
Challenges in Establishing COVID-19 Causation
The COVID-19 virus is highly contagious. Even routine errands, such as grocery shopping or visiting a dry cleaner, can expose people to the disease.
Daily activities carry a significant risk of COVID-19 exposure. As infections increase, determining whether someone contracted the virus at work becomes more difficult.
A review of legal literature shows several pending court cases on this issue. Early decisions have supported both sides of the argument.
Clearly, not every COVID-19 workplace claim is straightforward. Efforts to clarify presumption in COVID-19 cases have also created new questions within the workers’ compensation system.
Key Questions for Evaluating COVID-19 Claims
With little precedence or guidance for COVID-19 claims, a series of specific questions can help workers’ compensation professionals make a more informed decision when it comes to presumption:
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Is there a positive test? If so, when did the exposure occur?
- What specifics relative to exposure can the injured employee present to support the claim?
- Beyond testing positive, is this individual symptomatic or simply a “carrier”?
- With their specific symptoms treated, was there a hospitalization?
- Has this individual been immunized, and has a detailed social tracing been completed, establishing that no other exposure occurred?
What specific literature citation(s) and workplace/prevalence data is noted indicating that the occupation is at risk for this particular diagnosis? And under what circumstances?
Medical Evaluation and Documentation Requirements
Healthcare providers should obtain a detailed medical history, review of systems, and physical examination in all COVID-19 workers’ compensation cases.
And, as noted earlier, in some jurisdictions, the COVID-19 virus may be considered an “ordinary disease of life”, thereby excluding this diagnosis from the workers’ compensation statute altogether.
Final Considerations for COVID-19 Workers’ Compensation Claims
Since COVID-19 is a relatively new disease process, there is still much to be learned about it. Causation in COVID-19 cases, therefore, is not a straightforward assessment.
Professionals must evaluate multiple factors before making a decision. They must also answer key questions and follow the applicable statute.
Decision-makers should rely on the most recent clinical information when evaluating COVID-19 claims. This information may show that not every case qualifies as an occupational disease.
Medical professionals should carefully assess every COVID-19 workers’ compensation claim. They should rely on evidence-based medicine and follow current state statutes before applying any presumption.
