Coronavirus and Pennsylvania Workers’ Compensation
Overview of Coronavirus
The 2020 Coronavirus/COVID 19 pandemic has caused significant disruption to life in Pennsylvania and sickened dozens of people throughout the Commonwealth. The number of reported cases continues to climb daily. Measures to contain the spread of the pandemic have resulted in the closure of schools and businesses throughout Pennsylvania. The disease has spread to every U.S. state, resulting in over 13 million cases and 271, 000 deaths.
The current crisis originated in the city of Wuhan, Hubei Province, China and spread rapidly around the globe. The elderly, those with compromised immune systems and those with underlying health conditions, especially respiratory conditions such as COPD and asthma are most at risk. The available data suggests that although the disease can be severe in many cases and is highly contagious, many cases are relatively mild, especially in the young and the otherwise healthy.
Over several months, treatments have improved as the medical system gains a better understanding of the disease. Work is ongoing on a vaccine, which is being developed as quickly as possible. Initial trials have been promising and a vaccine rollout is expected in the Spring of 2021.
Compensability for Coronavirus under Pennsylvania Workers’ Compensation
Due to the contagiousness of Coronavirus and its rapid spread through the population, it is likely that a great many employees will ultimately contract the infection. State and Federal governments have moved to close non-essential businesses, schools and large event spaces to slow the spread of the disease. However, there are a number of exceptions to the closure orders. In Philadelphia, exceptions include grocery and hardware stores, gas stations, construction, daycares, pharmacies, banks and post offices. This means that a wide variety of businesses will remain open, requiring their employees to come to work and face possible exposure to coronavirus. New rounds of closures are being implemented for the Fall and Winter months of 2020 and 2021.
A coronavirus infection contracted at work is compensable under Pennsylvania’s Worker’s Compensation Act. The Act covers any disease caused by and related to employment. Pawlosky v. WCAB (Latrobe Brewing Co.), 525 A.2d 1204, 1210 (Pa. 1987). However, it is likely that employers’ exposure to workers’ compensation claims for COVID19 will me low for two reasons: proof and disability.
An especially relevant case is City of New Castle v. WCAB (Sallie), 546 A.2d 132 (Pa.Cmwlth. 1988). In City of New Castle , the Commonwealth Court held that a fatal meningitis infection contracted from a kiss on the cheek from a coworker, was compensable under the Pennsylvania Act. Specifically, the decedent was at a going-away party for a coworker, gave her a peck on the cheek and came down with a fatal case of meningitis two weeks later. Testing done after the decedent’s death revealed the coworker was an asymptomatic carrier and was the only such carrier the decedent came in contact with.
City of New Castle demonstrates two issues that will likely stymie claims for COVID19 exposure. First, a Claimant always bears the burden of proof to demonstrate all the elements to support an award, including causation and disability. Vista Int’l Hotel v. WCAB (Daniels), 742 A.2d 649 (Pa. 2000); Inglis House v. WCAB (Reedy), 634 A.2d 592 (Pa. 1993).
In City of New Castle, the Claimant had the benefit of extensive testing that identified the source of the meningitis bacteria as a coworker. This conclusively pinpointed the source of the infection to his work. A worker who comes down with a COVID19 infection will have the same burden of proof. But as the pandemic becomes more widespread, it will be difficult for a claimant to obtain such specific proof of the infection. In essence, a claimant would have to show exposure to COVID19 at work, and nowhere else, to maintain a successful claim. This is a high bar for the average worker to meet, especially as more people in the population are infected with this highly contagious disease. Of course, specific circumstances will dictate the proof available. A nurse or doctor who deals with coronavirus patients will likely have an easier time of demonstrating exposure at work than a stocker or cashier at a grocery store. As testing for coronavirus becomes more routine, it may be easier to demonstrate exposure. Such claims will come down to the available facts on a case by case basis.
The second challenge is regarding disability. City of New Castle obviously involved a serious injury resulting in death and significant exposure to the employer. However, with this outbreak even if a claimant has proof of an infection at work, most coronavirus infections have relatively mild symptoms and thus only minimal value as a claim. Up to 80% of persons who contract the infection have mild symptoms and recover¹. While an infected person will require quarantine and medical care, an otherwise healthy person contracting coronavirus may not be out of work for longer than the 14 days required to receive first-day benefits under 77 P.S. § 514. A claimant may simply not be out of work long enough to collect more than a week of indemnity benefits. More severe cases will result in longer term disability, even death, but these appear to be a minority overall. It will likely be the rare case that results in significant exposure and possesses proof linking the infection to an employee’s work.
Medical benefits may be significant in those cases requiring hospitalization. But, if the 80% figure is correct, most infections will not result in significant medical exposure. However, this may change as we learn more regarding this disease and its long term effects.
The ongoing COVID 19 pandemic continues to evolve rapidly and new information is coming out daily. As such exposure to workers’ compensation claims for this disease may change as new data is produced regarding the outbreak in Pennsylvania.