By: Pamela Foels

In the ever-changing face of this virus, we have to address not only the potential causal relationship of the virus to an employee’s employment, but also the effect of mass furloughs and company closures on all of our employees.  This article will address these issues.

PAYMENT OF MEDICAL FOR COVID-19

Injured workers will have a difficult time proving that any covid-19 diagnosis is causally related to their employment, as the law requires them to establish that the workplace has exposed them to a greater hazard then exists in the general community. Until this virus is more contained, that would appear to be an insurmountable burden for employees to meet. They must also have supporting medical opinions to support that position, again a difficult thing to establish. Finally, preexisting conditions will be extremely relevant, as will the issue of  major contributing cause of the condition and any resultant disabilities.

PAYMENT OF INDEMNITY

We are seeing several circumstances dealing with the issue of the virus and how it relates to the payment of lost wages. The only category of benefits affected is TPD, as all other categories of benefits are paid regardless of the relationship between the accident/restrictions and the loss of wages. (Causal relationship is also relevant to the payment of Permanent total disability,  but not after those benefits have already begun through voluntary acceptance of same or order of the court).

There are several circumstances where this issue arises when someone is on light duty. First, they may be laid off due to reduction in work force needed because of the impact of the virus. Second, they may elect or be required to self-quarantine because of exposure to the virus. Lastly, they may be diagnosed with the virus.

Scenario #1, where a layoff occurs, is the most difficult one.  The underlying premise for entitlement to TPD is that causal relationship between loss of earnings and the restrictions imposed by the accident. If a significant layoff of work force occurs, to include a claimant on light duty status, arguably that loss of income is NOT related to the accident/injury, but something else- the virus. The law essentially provides that if a C is on light duty and has restrictions, and the employer is no longer employing them and accommodating their restrictions, they have met their initial burden of establishing that causal relationship. The burden then shifts to us to establish an event that has broken that causal relationship. These cases are very fact driven. For example, if a number of employees have been laid off, then it is more likely that the courts would find that no relationship exists between the loss of income and the accident. On the other hand, if the layoff is more limited, or, for example, the C’s original job was not subject to a layoff but the light duty position was, then it is likely that the courts would find that this causal relationship exists and would award benefits.

Scenarios #2 and #3 are a bit more straight forward. If an individual can no longer work because they are under quarantine either because they have been diagnosed or been exposed, and we were already accommodating their restrictions, they would arguably not be able to carry their burden of establishing that causal relationship. An exception to that might be if the employer required the quarantine due to exposure to the virus in the work place. The courts would likely still determine that they met their initial burden, and we would be required to prove that but for the employee missing work due to the quarantine, we would continue to have a job available for them. If at any time that changes and we can no longer establish that a job remains available, then benefits would be due.

It goes without saying that we expect the courts to be very liberal in regard to these payments, and very sympathetic to injured workers. With that said, I would lean toward payment of TPD so as to avoid exposure for attorney’s fees if unsure of whether benefits would be due.  Again, with the ever-changing world we face, please feel free to reach out to us if these issues arise for your business.