With the substantial number of COVID-19 cases that have already been diagnosed in Louisiana, we can expect to see claims asserting entitlement to disability and medical benefits under the Louisiana Workers’ Compensation Law for contracting the virus during employment. In order to prove entitlement to such benefits, a claimant will have to establish that they suffered either an accident or an occupational disease. As is outlined below, it is possible that a claimant could make a claim under either of these theories, depending on whether or not they are an essential worker.
COVID-19 WORKERS’ COMPENSATION CLAIM: ACCIDENT
What is an Accident Under the Law?
There are a number of Louisiana cases that characterize what one may initially consider a disease—West Nile virus, bronchitis, typhus—as an accident. The strongest support for this is a very literal interpretation of the definitions of accident and injury in our Louisiana Workers’ Compensation Law. An accident is defined as an unexpected or unforeseen sudden event, while an injury is defined as a “violence to the physical structure of the body”.
In Parks v. Insurance Company of North America, the Court had to determine whether a claimant’s bronchitis episode constituted an accident. The Court reasoned that the medical testimony established that the bronchitis episode resulted in an injury—violence to the physical structure of the body—and that the injury was accidental because it was unexpected and unforeseen and occurred suddenly producing objective symptoms.
The Parks Court relied on prior case law wherein hepatitis and pneumonia were held to be within the statutory definition of an accident when contraction of these conditions was causally related to the claimant’s employment. The Court observed that it was not necessary for the accident to be caused by extraordinary activities or that said activities be the exclusive cause of an accidental injury. It was only necessary that the accidental injury be caused or precipitated by the usual and customary activities, exertion, or other factors directly connected with the employment. The Parks Court went on to reason that it was “immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standard of accidental injury is a disabling factor”.
In the more recent case of Allen v. Graphic Packaging International, the Louisiana Second Circuit Court of Appeal upheld a ruling from the workers’ compensation judge finding it more probable than not that an employee sustained an accident at work when he was bitten by a mosquito at work and later diagnosed with West Nile Encephalitis. Again, the Court liberally construed the Workers’ Compensation Act in favor of coverage and found that this work-related insect bite was compensable as an accident.
They also took into consideration the claimant’s burden of proof in establishing the occurrence of an unwitnessed accident. A claimant’s testimony alone may be sufficient to establish an accident provided that 1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; 2) the worker’s testimony is corroborated by the circumstances following the alleged incident.
Six Factors the Courts Consider
There are six additional factors that courts consider in determining whether an employee has established the occurrence of an accident. Only some of these will be factors that will apply in an analysis of COVID-19 claims:
- Late reporting
- Supervisor and co-worker testimony
- Family and friends’ testimony
- Medical evidence, including records reflecting the history of how the claimant claims to have suffered an accident
- Continuing to work
- Prior injuries
Proving a Causal Connection
A claimant will still need to prove a causal connection between his COVID-19 and his work activities. Considerations that should be taken into account when investigating a causal connection include:
- The incubation period between when exposure occurs and the COVID-19 symptoms manifest.
- The presence of other COVID-19 cases in the workplace.
- Exposure to COVID-19 in places away from the workplace in the 14 days before the claimant’s symptoms began.
Also, while a medical opinion establishing causation is helpful in cases involving an accident, it isn’t required like it is for an occupational disease claim. A claimant can prove causation with circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition. Therefore, the burden of proving causation will be easier to meet for an accident than an occupational disease.
COVID-19 WORKERS’ COMPENSATION CLAIM: OCCUPATIONAL DISEASES
What is an Occupational Disease Under the Law?
La. R.S. 23:1031.1 defines an occupational disease as a disease or illness that is due to causes or conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to the disease. When an employee has worked for an employer for less than 12 months, there is a rebuttable statutory presumption that the employment did not cause the occupational disease. The statutory presumption can be overcome if the employee can prove by a preponderance of the evidence (more likely than not) that the disease was contracted during employment, specifically proving that there is a disability which is related to an employment-related disease, the disease was contracted during the course of employment, and the disease is a result of the work performed.
Establishing a Causal Link
A causal link between an employee’s occupational disease and their work duties must be established by a reasonable probability. An employee will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused the disease. Also, expert testimony—such as a physician, epidemiologist, or infectious disease expert—is required to support a finding of an occupational disease. Lay testimony alone is insufficient to prove an occupational disease.
Essential Workers: Closing the Loophole
Given the requirement that a claimant must show that an occupational disease is due to the “causes or conditions characteristic of and peculiar to the particular trade, occupation, process, or employment”, it could be difficult for a claimant to prove a compensable occupational disease unless they are an essential worker. It could be argued that this should be further narrowed down to employees in our health care systems, since exposure to COVID-19 is not something other essential workers—such as grocery store employees and utility workers—would typically encounter in their occupation.
Perhaps to close this loophole and ensure that essential employees are covered under the Louisiana Workers’ Compensation Law, Senator Glen Womack recently introduced Senate Bill 475 on March 31, 2020 to provide coverage to essential workers who contract COVID-19 in the workplace. The bill also provides death benefits to the dependent of an essential worker whose death is caused by COVID-19. A claim for disability benefits under this Section would have to be filed within one year of the date the disease manifests itself or one year from the date the employee is disabled from working. A claim for death benefits is barred unless filed within one year of the death of the essential worker or one year from the date the dependent has reasonable grounds to believe the death was caused by COVID-19. The bill defines an essential worker as a person “working in public safety, government, emergency response, health care, or private business as designated and deemed necessary or critical for response to the COVID-19 pandemic by their employer or by virtue of their official commission”.
There are a substantial number of workers who will fall into category of essential workers. Per the Stay at Home Order issued by Louisiana Governor John Bel Edwards, essential businesses include:
- airport operations
- building management and maintenance
- charitable organizations
- cleaning and janitorial staff
- distribution centers
- food production, distribution, and sale
- hardware and supply stores
- hotels and motels
- internet, video, and telecommunication systems
- certain manufacturers
- moving and relocation services
- oil and biofuel refining
- residential and commercial construction
- roads, highways, railroads, and public transportation
CONSIDERATIONS FOR EMPLOYERS AND CARRIERS
Workers’ Compensation Claims: An Accident v. Occupational Disease
Absent new legislation, a worker’s claim for compensation benefits for contracting COVID-19 will likely fall within the scope of an accident as opposed to an occupational disease. A possible exception to this could be front line health care workers who meet the burden of proving that contracting COVID-19 is characteristic of and peculiar to their employment. The burden of proving an accident and causal relationship is easier to meet than for an occupational disease. While a medical opinion is certainly helpful and possibly persuasive, a claimant can prevail on their claim with circumstantial evidence only. Workers’ compensation judges utilize broad discretion in making factual determinations, including the occurrence of an accident and causation. Therefore, it will be imperative for Employers and Carriers to work together to investigate COVID-19 claims and document any contradictory evidence.
Addressing Shifts Under the Louisiana Workman Compensation Law
Currently our focus remains on new COVID-19 claims involving employees engaged in essential activities. We anticipate the emergence of claims for workers in both essential and non-essential roles. As the Stay at Home Order lifts in a phased manner, we will remain prepared to address any shifts under the Louisiana Workman Compensation Law.