There have been a great many stories and posts written about COVID-19/Wuhan/SARS-CoV-2. Just last week, I tried to provide an overview of where we are in workers' compensation with COVID and Workers' Compensation (May 2020). That provides some information about legislative and regulatory reactions in Illinois, Kentucky, California, Michigan, Arkansas, Missouri, New Hampshire, New Mexico, North Dakota, and Washington (regulatory), as well as Alaska, Utah, Louisiana, Massachusetts, New York, Ohio, Pennsylvania, and Vermont (legislative changes or bill introductions), and strove to provide some reminders of the constitutional constructs (separation of powers) of our federalist system of government, a constitutional republic.
That May 11, 2020 post predated a free webinar produced by Workers' Compensation Research Institute, hosted by its CEO Dr. John Ruser. That May 14, 2020 discussion was interesting and informative, and I was honored to participate. There were questions raised in the webinar, and in communications afterward, which bear further discussion. And, the evolution of COVID-19/Wuhan/SARS-CoV-2 reaction and litigation has continued in the meantime. States continue to engage the topic and struggle with change.
One issue that arose is whether a "federal backstop" is needed to shore up the potential risks that the pandemic could bring to workers' compensation. The federal government started just such a program, originally called TRIA, in 2002 following the September 11, 2001, terrorist attacks on the U.S. It has since been reauthorized by Congress under the names TRIEA, TRIPRA, and TRIPRA 2015.
I noted in response to that inquiry that it has seemingly become increasingly difficult to attract Congress' attention to this backstop. There is some suggestion therefore that even if such a backstop were enabled in the wake of COVID-19/Wuhan/SARS-CoV-2, maintaining it, and reauthorizing it, might prove a difficult task as our memory of this virus fades (we hope it fades). See Federal Terrorism Backstop Re-authorization Now Seems Certain.
I received correspondence from Peter Rousmaniere who retired from this community recently (after writing about it, and analyzing it, for decades). He is persuaded that a backstop is a probability but wonders aloud if it will be a COVID-19 backstop or a broader infection backstop applicable to future, as yet unknown, threats.
Mr. Rousemaniere also wonders if such a backstop would "require the insurers to pay claims." That is an intriguing thought. He posits that under TRIA and progeny, it may be possible for a worker to obtain benefits even if the event or ailment were not nominally covered by a particular state's workers' compensation law. He specifically noted the potential for post-traumatic stress disorder in that context, recognizing many states do not provide workers' compensation for mental-only claims of that nature.
WorkCompCentral (subscription) reported on May 14, 2020, that some have doubts that a backstop is needed for virus claims. WorkersCompensation.com reported May 15, 2020, that a federal backstop is "not necessarily the best idea for dealing with COVID-19 and future pandemics," according to some community members. There is, frankly, a lack of consensus on this question.
There was discussion on the webinar that what is or is not workers' compensation in this country is largely defined by legislators drawing boxes or lines that include some things and exclude others (such as mental-only claims, see above). That process can appear to some as haphazard or arbitrary. Some even make arguments about what is or is not "fair." I have noted that truth may be "in the eye of the beholder," see Who Ya Gonna Believe. It is possible that "fair" may likewise depend upon perspective and be differently viewed by various people.
One of the main themes of COVID and Workers' Compensation is that reaction to COVID is coming both legislatively and from the executive branch of state governments. In either scenario, the government is striving in those instances to alter the social contract which is workers' compensation. Any alteration, by definition, is change. Change may be good or bad, fair or unfair, based upon whether you are personally benefited or burdened. Any benefit created must have a corresponding detriment. Change brings gain and loss.
The virus change has its roots in the foundation of workers' compensation. The birth of this statutory substitute for tort liability claims focused upon accidents that caused injury. The early days of workers' compensation were not about repetitive trauma or simple onset of symptoms in the workplace. The initial focus was on accidents that resulted in physical trauma. Systems were initially deemed unconstitutional, largely because of the liability without fault and the "taking" of property (of the employer) without due process.
Eventually, the courts perceived a "grand bargain" or balance of gain and loss. Everything that workers' compensation is today evolved from that foundation. Today, there are states that cover occupational disease (sometimes only the more obvious examples such as pneumoconiosis). The burdens of proof for such disease to be compensable are very tough in some jurisdictions, and much less so in others (Hawaii was mentioned in an article referenced in COVID and Workers' Compensation. Though there are complaints from various perspectives, it is likely that this balance remains critical.
The recent legal discussions about change have not subsided either. Kansas was a state in which the Governor drafted a rule to create "a presumption of workers' comp benefits for first responders, health care employees and other essential workers," as reported by WorkCompCentral (subscription). Under that state's law, the State Attorney General plays a role in the adoption of executive branch rules. The Attorney General and other lawyers in Kansas seem to agree that such a change there requires legislative action. Thus, like the Illinois effort that was drafted, launched, and recalled all within 30 days, the Kansas rule effort may not have the legs to make the finish line as drafted.
This "who can react" struggle illustrates our constitutional government structure and separation of powers. Time will tell how the Kansas presumption conflict evolves. According to the Centers for Disease Control (CDC), Kansas has had about 7,886 COVID-19 diagnoses and 172 deaths thus far. With a population of about 3 million, the infection rate there is about .271% (7,886/3,000,000) and the death rate is about 0.006% (172/3,000,000). Those numbers will increase; however, it illustrates that a great deal of effort is underway in states that do not as yet have the kind of infection and death rates that are seen in states like New York, New Jersey, Massachusetts, Michigan, and Pennsylvania.
Missouri was also in the news recently with discussion of a presumption. Nurse's COVID-19 Death Could Pave Way for Compensability, Despite No Presumption, WorkCompCentral (subscription) aptly recounts the story of a nurse who contracted COVID-19 and tragically passed away from the disease. The allegations are that nurses were not provided appropriate "personal protective equipment" ("PPE"). This story notes that Missouri's Governor created a presumption there for "firefighters, law enforcement officers, and emergency medical technicians," but did not include doctors or nurses.
That distinction may lead simply to further discussion of where and how lines are drawn, and who is included and excluded. There are those who find such distinctions (excluding nurses) without merit, and who argue that a nurse is perhaps more likely to suffer exposure to such a virus in a workday than a police officer. Those arguments evoke emotions regarding equal protection of laws under our Constitution. However, the equal protection arguments may not be sufficient to change laws or perceptions. After all, the legislatures, in drawing lines, are necessarily going to include some things and exclude others. Is that perhaps simply part of the fabric that is social legislation?
Despite the lack of a nurse presumption in Missouri, attorneys for this worker expressed confidence that her survivors will prevail in this claim nonetheless. They contend she was caring for an infected patient: "one of her patients started showing symptoms." They contend they will prove that she was exposed at work, and thus that her disease is compensable without any presumption. This story reminded me of an email I received from a physician last week after the WCRI webinar. I had mentioned that proving virus source in a case would be a challenge.
Dr. David Dietz wrote and suggested that "there is individual genotyping that can possibly determine the chain of infection." Thus, by scientific examination of the virus with which the nurse was actually infected, and the virus of that one patient, there exists the potential to prove that the nurse's infection in fact occurred from that patient. This may be critical in the analysis of "arising out of" employment. See, Personal Comfort? Testing Compensability for discussion of "arising out of."
For a discussion of the potential challenges of such proof, see Florida Occupational Disease Burden, but remember the burden and law in Missouri may be completely different (each state has its own take on workers' compensation, a product of our federalist system). Anytime there is a discussion of experts and testing, there is the potential that proof will be expensive and perhaps time-consuming. When there is a blunt trauma (fall, struck by something) and there is a broken bone or laceration, the cause and effect can be a bit easier to both visualize and prove. Disease is harder to prove because it is potentially less apparent.
If the genotyping is successful, some may argue that only proves that the two of them suffered from the same particular viral process. But, does that prove that patient infected nurse as opposed to nurse infecting patient? Is it possible that the nurse was asymptomatic for some period and during that time the patient was infected? Can genotyping prove or disprove that progression as opposed to the converse progression from patient to nurse? The science and evidence will have to be carefully established and presented in such a case.
And what if the genotyping cannot definitively tie that nurse's virus to that one particular patient's? That does not necessarily mean that her exposure did not occur at work. However, it may leave open the potential infection occurred elsewhere. That illustrates one of the greatest challenges of this COVID, a great many people may have it and never display (or experience) a symptom.
Thus, she might have theoretically contracted this from a coworker or another patient at work (asymptomatic). But, if that asymptomatic person is not identified (and tested), then the genotype testing to tie that person and thus infection to the workplace may not materialize. It may perhaps be impractical to begin a quest to test each person to whom she was exposed before catching the virus. As mentioned on the WCRI webinar, determining when and from whom one became infected may be quite a challenge.
Keep in mind, that in a state with a rebuttable presumption of compensability for COVID-19, the struggle with identifying transmitters and tracing origin would nonetheless remain. The presumption does not change that proof, but merely changes who has the burden of proving. In the absence of the compensability presumption, the injured worker would have to prove who it came from and how that was in the course and scope of employment. With a presumption, the proof would be similar, but the employer would be liable unless it proved that connection to someone (some exposure) outside of the workplace.
The burden is difficult, and the science is potentially expensive. The challenges of identifying the transmitting source, in any event, may be difficult despite the availability of sophisticated science and expert witnesses. The policy-makers, in drawing those lines, decide who will face the challenge of proof. The burden of proof thereafter may influence who prevails and who does not. It is important to remember that various legislative or executive change is thus about redrawing those lines with resulting benefit and burden. The change, large or small, is within the encompassing "grand bargain" as conceived and heretofore evolved.
The workers' compensation community is striving to keep us all informed. Just since March 2020, hundreds of COVID articles have been produced. Many webinars have striven to bring us perspective and knowledge. And, despite that effort, there is new data and news almost daily. Perhaps we just cannot keep up. There will be more on the subject coming soon. Stay tuned to @fljcc on Twitter and to this blog for updates on that effort.
