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COVID-19: Compensability, Exposure & Best Practices
COVID-19, the severe, acute respiratory syndrome caused by the Coronavirus, is the dominant concern today. It will impact all areas of our personal and professional lives, including the handling of workers’ compensation claims. The following serves as a brief analysis of compensability under the Illinois Workers’ Compensation and Occupational Diseases Acts and best practices to mitigate your exposure.
Standard: Illinois Occupational Diseases Act vs. Illinois Workers’ Compensation Act
The Illinois Occupational Diseases Act defines “Occupational Disease” as, “a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public. A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease.” 820 ILCS 310/1(d) (emphasis added).
It further states, “An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists.” 820 ILCS 310/1(d) (emphasis added).
The Workers’ Compensation Act mandates that an accident, outside of repetitive trauma, be traced to a discrete, acute, event. Therefore, if an employee can prove that a co-worker with COVID-19 sneezed on him or her on a particular date, at a particulate time, and he or she developed symptoms and tested positive for COVID-19 within the incubation period, it may be properly filed under the Workers’ Compensation Act. In less identifiable cases, an Occupational Disease Act filing is likely more appropriate. In the world of Illinois Workers’ Compensation, we expect Petitioners to file Applications under both Acts.
Compensability
In the case of the office worker above who knows when and where he or she was sneezed on and exposed to the Coronavirus at work, the Commission will find that he or she suffered a compensable accident and find the COVID-19 a result of the Coronavirus exposure. However, this scenario is unlikely to exist in the real world. True exposure to the virus is more nebulous and the Petitioner will likely need to show exposure under the Occupational Diseases Act.
If we are talking about a healthcare worker who works at a hospital where patients have tested positive for COVID-19, the answer is easy. The worker’s disease will likely be found compensable. Remember, an employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when . . . he or she is employed in an occupation or process in which the hazard of the disease exists. 820 ILCS 310/1(d) (emphasis added). The hazard of the disease certainly exists at a hospital that treats patients with it and the Commission will determine that the Petitioner is conclusively deemed to have been exposed to the hazard, regardless of whether or not the worker actually treated someone with COVID-19.
The prevailing question is, how far will the Commission stretch the presumption of exposure? The main question of fact for the Commission to determine is, in which occupations or processes does the disease exist? Do drug store workers receive the presumption of exposure because sick patients flock there for medicine? What about grocery store employees who are inundated with masses of people stockpiling goods in preparation for quarantine? Do only healthcare workers at a hospital enjoy the presumption or are workers in the cafeteria also conclusively deemed to have been exposed? In times of pandemic, the Commission may elect to liberally apply the standard to make cases compensable in an effort to support the stated purpose of the Act, “to make the injured worker whole.”
Workers in industries in which the hazard of the disease exists may need not prove actual exposure to the Coronavirus. If they have COVID-19 and work in that industry, the Commission may find that it is compensable under the Occupational Diseases Act. Case law supports the fact that actual exposure need not be shown, “Nothing in the statutory language requires proof of a direct causal connection.” Sperling v. Industrial Comm’n, 129 Ill. 2d 416, 421, 544 N.E.2d 290, 292, 135 Ill. Dec. 794 (1989). A causal connection may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. Consolidation Coal Co. v. Industrial Comm’n, 265 Ill. App. 3d 830, 839, 639 N.E.2d 886, 892, 203 Ill. Dec. 327 (1994). “In addition, a chain of events suggesting a causal connection may suffice to prove causation even if the etiology of the disease is unknown.” Id.
Even without a presumption of exposure and conclusive finding, an employee may still be able to prevail on a claim alleging exposure to the Coronavirus. An office worker is unlikely to enjoy the presumption of exposure due to employment in an occupation or process where the hazard of the disease exists. In these cases, the worker will likely need to show actual exposure to the Coronavirus. As discussed above, it may be difficult to prove when and where he or she was exposed by naming a discreet time and place that he or she was exposed to the disease. However, if the employee can show that several co-workers tested positive for COVID-19, he or she can argue that the risk of exposure was increased by their employment. The compensability standard under the OD Act is that it must be “apparent to the rational mind . . . a causal connection between the conditions under which the work is performed and the occupational disease.”
If the Petitioner can submit evidence showing that he or she was surrounded by co-workers who tested positive for COVID-19, a rationally-minded Arbitrator should not have a problem finding exposure as a result of working in such conditions caused the occupational disease without evidence to rebut the allegation. These cases will be harder to prove than cases involving industries with the conclusive finding presumption, as they will require outside evidence. However, the Act may be liberally construed to make the injured worker whole.
Exposure
Like all injuries resulting from compensable accidents or exposures, exposure for benefits in cases involving COVID-19 involve TTD, medical bills, and permanency. There is simply not enough data on this new and developing disease to give precise estimates of your exposure. However, any viewer of the evening news can tell you the following:
TTD: Employees exposed to the Coronavirus should self-quarantine for at least 14 days. If your employees cannot work from home and you are not in a position to continue salary, consider waiving the 3-day waiting period and issuing TTD benefits to exposed employees to avoid employees coming into work due to financial necessity. For employees diagnosed with COVID-19 due to a workplace exposure, I would count on at least 30-days of TTD liability. It appears that most people recover from this disease and are able to return to work within the 30-day period. Additional TTD liability is likely reserved for only the worst cases.
Medical Bills: The media tells us that most cases of COVID-19 are mild, and that young, healthy people are able to recover at home with rest and symptomatic treatment. In these cases, your medical exposure is likely limited to that of the COVID-19 test (if available) and several physician’s visits to monitor the Petitioner and release him or her from care. We suspect most cases will not involve a great deal of medical bills. However, Italian media outlets have shown severe cases involving long ICU stays with ventilator-assisted breathing and 24-hour care. Medical bills from the most severe cases will likely constitute the bulk of your exposure for COVID-19. In cases involving the elderly or those with co-morbid conditions, expect long hospital stays and potentially exorbitant medical bills.
PPD: We suspect that permanency in COVID-19 cases will largely be an “all or nothing” affair. It appears that those with mild cases recover completely and have no ongoing sequelae. We do not believe that the Commission will award any permanency for a diagnosis with no hospitalization and a full recovery.
Media outlets are reporting a mortality rate of 1-3%. In cases in which a deceased employee can prove that his or her COVID-19 and subsequent death was caused by a workplace exposure, we do face exposure for death benefits.
There are reported cases of patients being hospitalized and recovery with some permanent lung damage. These will likely qualify for some PPD award but will need to be viewed on a case by case basis by weighing the five factors to determine permanent partial disability.
Best Practices
In cases involving industries with hazards resulting in the conclusive finding of exposure, fighting compensability at the Commission will be an uphill battle. In the office scenario described above, you may be able to win on compensability for the first employee who tests positive for COVID-19. Once your office is exposed, all subsequent employees can make the argument that their employment increased the risk. In light thereof, mitigation efforts are the best way to decrease your exposure. We recommend the following measures:
- Maintain honest, direct lines of communication with employees to confirm a work-related exposure, be it direct or indirect;
- If an exposure seems likely, have the employee tested and pay for the testing through workers’ compensation;
- Send the employee home pending the results of the testing and pay either regular salary, or at a minimum TTD, for related time off work;
- If an employee is diagnosed with the Coronavirus, confirm with the employee’s medical provider the likely incubation period for the virus, as you will need to determine who else may have been exposed to the virus by the subject employee in the performance of the employee’s job duties;
- Ensure those exposed to the virus are quarantined for the appropriate time. Allow them to work from home if possible or continue salary/pay TTD to avoid additional exposure at work;
- For exposed employees who are diagnosed with the Coronavirus, expect a Workers’ Compensation case, possibly a physical to mental stress component, to be filed;
- For employees who fear exposure but are not diagnosed with the virus, you may see mental to mental stress claims to be filed, and;
- All employers should post Coronavirus prevention information, as well as contact information for the Centers of Disease Control and Prevention (CDC).
If we all work together to keep workplace exposures at a minimum and “flatten the curve,” all employers and insurers will benefit from fewer cases of COVID-19.