COVID-19 and Workers' Compensation

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Now join Ringler Radio host, Larry Cohen.

Well, hello and welcome to Ringler Radio, everyone.

I'm your host, Larry Cohen, and we're certainly glad you could join us again today.

It's not an overstatement to say that the coronavirus

pandemic is the most devastating public health and economic crisis of our time.

Here in the U.S., we have over 600,000 reported cases and over 30,000 deaths,

and we're still in mid-April. Businesses of all sizes are shut down, and millions of us have been

adjusting to working from home. But some employees who've been deemed essential are still heading to

work, often at great risk. Today on Ringler Radio, we'll examine the rights and safety standards for

potential workers during a public health crisis, and explore the potential for workers' comp

litigation stemming from the pandemic. Our special guest today is attorney Alan Pierce,

a noted expert on workers' compensation from the law firm Pierce Pierce and Napolitano

in Salem, Massachusetts. Alan is also the host of the Legal Talk Network podcast,

Workers' Comp Matters. So with that, welcome back, Alan. Great to have you here for this

important and timely discussion. Great to have you.

Yeah, thank you, Larry.

It's my pleasure to be here. Thank you.

Yeah, it's been a while, and under these circumstances, it's quite interesting.

We're both ensconced in our home offices trying to make the best we can of a bad situation.

You know, Alan, according to the Essential Services Act of 2013, an essential employee

is an employee that performs work involving the safety of human life or the protection of property.

Give us some examples.

If you could, of the type of employees who've been designated as essential.

Well, back in 2013, I think we can all agree that what was considered an essential employee

is much different than it is today. Essential employees clearly are those involved in public

safety, first responders, medical personnel, nurses, doctors, support staff in medical

and public safety, and related occupations, not to mention the transportation system,

public transportation, interstate transportation.

We have now seen, as a result of this pandemic, various governors almost virtually in every state

declaring additional types of work and additional types of workers essential.

And it can be anything from the person bagging your groceries at the local grocery store,

the cashiers, the retailers, warehouse persons, truck drivers, you name it.

I mean, one thing we've learned is really everybody's essential.

We are all connected.

And there are legal distinctions with respect to rights, obligations, and benefits that might

be deemed appropriate for people that might fit the legal definition of essential worker.

How true that is.

We've come to realize who the true heroes are.

In fact, I think my wife says that the people that are making the toilet paper

are really heroic in themselves.

Alan, how has the virus impacted these institutions?

And what are some of their basic legal rights during a public health crisis?

Well, it's impacted everybody that's still outside of their home and those that are working

and are exposed to people in general public.

Obviously, it's changed the nature of their work.

Hopefully, they're getting the necessary and required protection, whether it's masks, gloves,

other types of protective equipment.

And more than anything, it is exposing.

Everybody that's out there working to an increased risk of contracting this illness

and dealing with the effects of that.

So to the extent that it carries now with it a public health risk, it is more essential,

more necessary now to have these essential workers protected as best they could.

I know the government, both on the state and federal level, have been taking steps to do this.

Guidelines have been published by the CDC.

OSHA, the Occupational Safety and Health Administration, first of all, has its general

duty clause that all employers should create a safe and hazard-free workplace.

But now they are obviously publishing recommendations and protocols, how best to ensure that from

the common sense of washing hands, social distancing, masks, taking temperature, doing

other prophylactic or remedial measures, and removing people from the workplace.

When they are exposed to a risk, either at home or from somebody, or if they have initial

signs of potential illness themselves.

So there's an obligation on employers to recognize this.

And there's also an obligation on workers who may otherwise be reporting to work with

that sore throat or with that beginning of cough to not, to really avoid doing that.

And that's the challenge.

Yeah, no question.

And, you know, with that challenge comes the, always the potential for litigation that could

arise.

And I think, you know, with the pandemic, how do you think the traditional exclusive

remedy of workers' comp will apply when an employee becomes infected on the job?

And then how difficult will it be to prove that the employee contracted COVID-19 while

on the job?

That's an excellent question, Larry.

I wish there was an excellent answer to give to it.

I will tell you, generally, it is going to be very difficult to prove that a particular

employee contracted the COVID-19.

virus in the workplace.

Now, having said that, it's not going to be impossible.

First of all, I think if you want to begin that analysis, you have to look at the particular

workers' compensation jurisdiction and see how they treat contagious or infectious diseases.

Most, if not every jurisdiction, and we have 50 states, we also have the federal government

and different subsections or subcomponents of workers' comp, longshoremen, harbor workers,

railroad workers, et cetera.

Right.

generally. So you want to look first to see if there's an infectious disease exclusion.

Secondly, you want to see if this can fit into an occupational disease definition, or more likely,

whether you can prove that the injury, the infection arose out of and in the course of

employment. So that is difficult because this particular virus is ubiquitous. It is all around.

You can contract it from a cohabitant at home to somebody that you may see in a grocery store,

or if you're a medical worker, you obviously have an increased risk.

What we are starting to see is that many jurisdictions are enacting presumptions

so that if you fit a particular class of employee, medical, public safety, public health,

it is presumed that you've contracted that disease in the course and scope of

your employment.

employment. So the presumptions will aid a great many workers of gaining workers' compensation

benefits, where otherwise they might have had a very difficult, potentially impossible time

proving that by traditional means. Yeah, that sounds like a good way to handle it.

And you touched on it briefly, but across the nation, we know this is unprecedented,

this situation we're all in. What do you see as the role of the federal government and the states

and employers in protecting these essential employees? How are those roles perhaps a little

different? Well, the federal government obviously has its major statute being the Occupational

Safety and Health Act, which was enacted in 1970 and requires every employer to furnish

his or her employees a safe and hazard-free workplace. Beyond that, there are now

guidelines and recommendations, if not

with the force of law, the force of persuasion, that employers must take additional steps given

this pandemic for being able to provide appropriate protective gear and appropriate

monitoring and reporting of any particular employee or employees that contract the virus,

as well as notifying other employees that somebody that they've worked with or somebody

who may have inadvertently or as part of the job come in contact with may or may not be

infected. So there is an increased burden all around, including the injured worker or the sick

worker, him or herself, who might try to report to work with some symptoms. And we'll have to deal

with these on a case-by-case basis. You also mentioned litigation. At this point in dealing

with this pandemic, I don't like to think in terms of litigation. But as you correctly mentioned in

your question, the exclusive remedy portion of workers' comp, which means an

employer cannot be sued or held liable civilly, so long as there's workers' compensation benefits

available, still holds true. No question. But we all know there are attorneys out there looking at

situations and trying to be perhaps a little bit creative. So we'll see how that works out.

And there's no question that when it comes to the governmental entities and the employers,

we're all in this together. So it's going to be interesting to see how we all

sort it out as we move forward and hopefully get it done.

Well, let's take a quick break right now, but we'll be right back in a minute,

right here on Ringler Radio. Stay tuned. We'll be right back.

We'll be right back.

Welcome back to Ringler Radio. Glad you could join us. I'm your host, Larry Cohen.

And today I'm joined by my guest, Larry Cohen.

And I'm joined by my guest, workers' comp attorney, Alan Pierce. We've been discussing

the rights and protections of essential workers during a pandemic. So in the United States,

Alan, employees are protected under OSHA. And if an employee contracts the coronavirus while on

the job, what would the process look like for seeking traditional workers' comp remedies

and any other possible litigation? Well, first and foremost, if the

employee is not protected under OSHA, then what would the process look like for seeking

traditional workers' comp remedies and any other possible litigation? Well, if the informação

agency can successfully allege and prove that he or she contracted the virus on the job,

the first step would be to file a claim with the Department of Industrial Accidents or the

particular workers' comp jurisdiction in the state involved. What we're finding now,

having spoken to some workers' compensation claim representatives, is the phenomenon that

employers are notifying their workers' comp carrier of,

Every employee that has tested positive or contracted the virus or has had to lose time from work as a result so that the insurance companies are getting inundated with reports of injuries.

Those reports of injuries may or may not result in that worker filing a claim.

If that worker maybe successfully comes through the disease in five days, two weeks, three weeks, and returns to work or is otherwise healthy, they may not bring such a claim.

But nevertheless, that claim has been reported.

And that requires the insurance company to set up a file, set up a reserve, and oftentimes notify the claimant or the injured worker that his employer has notified the workers' comp insurer of a claim.

So if somebody wanted to bring a claim.

They would have to file the claim with the insurance company and the state agency.

And it would normally have to be accompanied by a medical opinion in the form of a medical report or office notes or clinic notes that indicate, A, that the person has contracted coronavirus, and, two, that it is more likely than not as a result of an exposure in the workplace.

And that is where the difficulty for people like myself who are going to represent injured workers to sustain.

That burden of proof.

How do we prove that my client contracted the virus while working at a supermarket as opposed to catching it from an acquaintance or just from walking down the street and not maybe having appropriate social distancing from somebody?

So there is a burden of proof here in these cases.

And in most jurisdictions, the burden of proof is by a preponderance of the evidence, i.e., that it is more probable than not that the.

Virus came from the work so that these cases will be decided on a fact-by-fact, case-by-case basis, and you could have two workers working for the same employer bringing a claim, and one may be more easily successful in making that claim than somebody else because of the particular facts of his or her exposure.

Yeah, I think it's no question that how someone contracts this.

Virus is going to be the interesting thing to prove, and I am informed also by what you said earlier that there are certain presumptions that are being put in place for certain workers, so that's obviously going to be helpful there.

Yeah, and we also have to, sorry for interrupting, we also have to be aware that these cases are going to be decided by fact-finders.

They are called judges in some jurisdictions, commissioners, hearing officers in other jurisdictions.

These are human beings who are going to make these decisions.

Hopefully employing the liberal construction, the humanitarian nature of the workers' compensation law, so you may find variances in awards of compensation based upon the liberality of the conservative nature of your particular jurisdiction, and even within the jurisdiction, you may have some judges or hearing officers that might be more prone to make an award in a closed case than others, so that we may see inconsistent results even within a jurisdiction, and we also have to make sure that we as attorneys can make an award in a closed case.

We have to make sure that we as attorneys can sustain our claim on appeal, that we have appropriate, legally admissible, scientific medical evidence that would support our claim, so that the normal difficulties in a workers' comp claim, i.e., proving through medical evidence that there is a cause and effect between work and injury, is compounded by the nature of this particular virus, that it is so ever-present everywhere, to narrow it down to the nature of this particular virus.

The employment is going to be difficult.

One other fact compounding this is the so-called incubation or latency period.

It can be an exposure, but you may not have the first symptom until five days later, three weeks later.

That has always been a problem, for example, with asbestos workers.

There, those people that might have been exposed to asbestos may not become symptomatic for 10, 20 years, so it is an added difficulty when you, you know, if you walk into a workplace and you immediately get sick.

Let's say there's just something in the air.

Maybe there's a carbon monoxide leak or there's some fumes and it makes you sick.

That's pretty easy.

But if you're working in a workplace and you're being exposed to the coronavirus, but you

don't get sick for a week later, it is that much more difficult for those of us who have

to prove those cases to be able to convince a fact finder that it came from that particular

workplace.

No question.

You've raised some excellent points there.

I'm sure we're going to be able to really get into that after we even leave this show.

We'll all be thinking about those issues.

But Alan, since this pandemic has brought us all into uncharted territory, what additional

legislative reform, both at the federal and state level perhaps, and the kind of policy

changes do you foresee when it comes to protecting the rights of our essential workers?

That's a good question.

We've already seen that.

As I mentioned earlier, I believe nine states, either through legislation or through executive

action, have established presumptions of compensability or coverage.

For workers' comp exposure for certain sectors of the industry, mostly public health, safety,

and medical.

I think we will probably see some tightened or loosened definitions of communicable or

contagious disease.

I think we may see, depending on how this plays out, federal legislation such as was

enacted perhaps after 9-11, where there was a victim compensation fund set up.

There may be a huge group of people that may not be covered under workers' comp, but

nevertheless need to be somehow compensated for lost wage or medical expense.

And there may be, again, I'm just speculating right now, some type of fund.

There may be some other legislation that will offer some relief to small businesses for

their premiums or for their heightened experience modification.

These are the factors that determine what their premiums are, or for insurance companies

who don't.

We're unprepared for the potential financial hit they're going to take if there are thousands

or hundreds of thousands of unanticipated claims.

Now, we know the work, the insurance industry works off premiums that are collected based

upon risk.

Risk has been exponentially increased by a thousandfold as a result of this pandemic.

So there could be some relief forthcoming should the need require for the federal government

or perhaps even state government.

I think it's important for us to take some type of action to maybe ease the burden on

employers, small employers, large employers, who have this tremendously increased workers'

compensation cost or other costs associated with a pandemic in terms of health insurance,

long-term disability insurance, and the like.

So we're likely to see a lot of changes, either legislatively, judicially, or by executive

action.

I think you're absolutely right.

So in closing, Alan, what would be your message to all the essential workers?

What would be your message to all the workers out there on the front line during this pandemic?

You know, that's a good question.

I've had a little more time on my hands to think about these things in the last few weeks.

First and foremost, I think there is a recognition that we are all essential workers in what

we do.

We are all connected.

One thing this pandemic has taught us is there are no boundaries in state lines, city lines.

We are all connected.

The work we do is important.

So those of us and those of you that are out there working through this, I think there is a recognition that you are essential.

The other thing that strikes me is I think we're going to start to look at the value of people's work and how they compensate for it differently.

You know, we have this structure here of we call them, you know, unskilled labor, semi-skilled labor, white collar, blue collar.

You know, it really does.

It doesn't matter.

Everybody has value so that the minimum wage worker that is washing the linens and the clothes of a COVID virus victim is every bit as essential and worth so much more than $12 an hour or $10 an hour or whatever it is.

So that this whole concept of, you know, going from the ultra rich professional athletes to the lowest paid worker, I think, and I hope that society will start to recognize that.

And I hope that we can recognize that all work is valuable.

That all workers are valuable.

And that our value structure and how we look at these folks and look at each other and how we compensate each other really might be some positives that come out of that is how we view each other socially and in the workplace.

And I wish them all well.

Yeah, those are all good points.

And I think we are all learning from this.

And I think some of us are.

Realizing what's really essential and how we're all somewhat grateful for what we have.

And that's always a good thing to come out of anything that on its face is pretty bad.

So with that, Alan, if someone wanted to get a hold of you, how would they do that?

They could contact us on our website.

It is www.ppnlaw.com.

And my email address is apierce, A-P-I-E-R-C-E, at P-P-N-L-A-W.

.com.

Terrific.

And if anyone wants to reach any of the Ringler Associates around the country, you can do that on www.ringlerassociates.com.

That's our website.

And on that website, you can also download any of our Ringler radio shows.

All of them are there.

You can find them on www.ringlerassociates.com, www.ringlerradio.com, or www.legalnetwork.com.

Or you can go to iTunes where you can download them directly from the iTunes app.

So with that, I want to say, Alan, thanks for being a great guest today.

We've learned an awful lot.

And thank you for all of your expertise.

Thank you, Larry.

Good to see you.

Be well.

Be safe.

Terrific.

And for all the rest of you out there, thanks for listening.

Stay inside and stay safe.

And go have a great day.

Bye-bye.

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