Workers’ Compensation Law Prof Blog

New Republic Article by Zaitchik Discusses COVID Long-Haulers ... and Their Disability Remedy

            Many in the workers’ compensation insurance industry have been trying to predict what costs COVID-19 will ultimately impose.  One line of thought is that most claims will be of short duration, with those found compensable perhaps only lasting weeks, and with de minimis medical expense.  Other claims analyzed in such projections, of course, are more costly occurrences.  Those are the ones featuring death. 

            Insurance industry commentators, however, are now recognizing another potentially expensive type of claim, that is, those COVID cases that become chronic.  The term for the condition is “Long COVID.”  The victims, meanwhile, have been called “long haulers.” 

            In a new article, which I highly recommend, the author interviews a number of Long COVID patients with an eye towards determining their typical symptoms, determining how they are treated by the medical field and, pertinently for our purposes, how they are to survive from an economic point of view.  Alexander Zaitchik, The Forever Disease: How COVID-19 Became a Chronic Condition, The New Republic, p.32 (March 2021),  https://newrepublic.com/article/161102/covid-19-long-haulers-chronic-disease-health-care.

            All of this is of interest to the workers’ compensation professional because it is chronic cases that can be the most challenging for the system.  And, notably, the author here compares Long COVID to a long-recognized condition we encounter in workers’ compensation, “chronic fatigue syndrome” (CFS).  Here the author refers to CFS in its full modern articulation, or Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, or ME/CFS.  ME/CFS is like another sometimes-chronic condition, Lyme Disease, encountered in workers’ compensation. 

            Both CE/CFS and chronic Lyme said to be are diagnoses with “no clear markers.”  In this article, the author assigns Long COVID to this this group of ailments: “Those who live with ME/CFS know full well the consequences of living in a medical no-man’s land.  Like Long COVID, ME/CFS usually has no clear biological markers. There are no on-label treatments.  Patients are often undiagnosed, misdiagnosed, or altogether dismissed by doctors.” 

            What are the symptoms of Long COVID?  The author identifies them as “headaches, nerve pain, cognitive dysfunction, hair loss, constipation, and extreme weight loss.”  A key symptom, however, is indeed like CFS – the same persistent fatigue that afflicted the COVID-19 victim in the first place.

            The author reports that researchers have long known that virus sufferers do not all have the same illness experience.  Some, indeed, develop a chronic condition.  The author remarks, “research on post-viral illnesses suggest that as many as half or more of those who survive the virus could suffer one or more symptoms for months or years.  Whatever the final number, the pandemic’s mortality rate will continue to be dwarfed by the long-hauler population.”  This fact leads to an issue pertinent to our field; a key issue as the population of chronic sufferers “is how to support and care for a new cohort of chronically ill Americans, possibly numbering in the millions.” 

            The remedy of workers’ compensation is not mentioned in the article, and none of the individuals interviewed alleges that they contracted the virus from a work exposure.  Thus, as one might expect, Social Security Disability is identified as the obvious remedy for the true long haulers.  “Most,” the author states, “will likely turn to their earned Social Security Disability insurance benefits….”  But will this really happen?  The author reports that, as of 2017, SSA reported that only about 13,000 individuals received this key benefit for the similar diagnosis of ME/CFS. 

            Of course, the author points out that SSD is an imperfect remedy for most, given the waiting period for both benefits and the accompanying Medicare card.  On this point, Social Security expert Nancy Altman told the author, “the mounting number of long haulers makes eliminating both waiting periods even more important.”  She adds, “in the meantime, some people found medically eligible may end up on SSI [Supplemental Security Income] and Medicaid, but that requires having virtually no income at all.” 

New Scholarship: Tort Liability for Aggressive Anti-Maskers

            In a timely article, a father and son pair of  Philadelphia-area authors theorize about the tort suits that might be filed by victims (mostly workers are hypothesized) of the aggressive behavior of that supremely uncivil and churlish breed of our fellow citizens: the willful anti-maskers.  See Andrew D. Cotlar & Joshua H. Cotlar, Liability Unmasked: Pennsylvania’s Tort Law Applied to COVID Anti-Maskers, Pennsylvania Bar Association Quarterly (January 2021).

            The authors first cite examples of instances (in Pennsylvania and throughout the U.S.) where workers in the midst of their labor are assaulted or threatened by anti-maskers.  Most of such acts are actually criminal in nature, but the authors observe that in many cases, the police are unable or unwilling to enforce the law.  Here, the authors posit, tort law can have a role: “This article argues that … tort law has traditionally served the function of expressing social norms and providing guidance, and incentives, for good behavior where the police power of the state may fail to be applied, and that liability for refusing to wear a mask during a health pandemic serves just this purpose.” 

            When a worker is physically assaulted and sustains injury by an anti-masker, this model sounds ideal.  In cases where the anti-masker’s aggression is deliberate exhalation on the worker, however, the same causation challenge that impairs the workers’ compensation remedy haunts a cognizable tort suit: “The greatest difficulty from a plaintiff’s perspective will likely be establishing that the plaintiff’s harms were caused by a particular encounter with a particular defendant, as distinguished from generalized conditions of the pandemic likely to cause similar effects.” 

            Still, the authors conclude, “A creative and persistent litigator may find this a challenge but conversely may also be able to develop the necessary basis for liability through proper eye-witness testimony, video surveillance, contact tracing and medical, psychological or economic expert testimony.”    

Larson Treatise "Emerging Issues Analysis" (2020): An Anthology Delivering Complete Immersion in the Field

            The editor of the Larson treatise, North Carolina lawyer Thomas Robinson, has again published his anthology, Workers’ Compensation Emerging Issues Analysis (LexisNexis/Matthew Bender.  2020.  233 pp.).

            This book, though expensive, continues to provide the reader with full immersion in both the issues of the day in our field, and in those challenging our intellects for decades.  No completely new writing by Robinson (I don’t believe) is published in the book.  Instead, the Emerging Issues Analysis is an anthology of the author’s LexisNexis commentaries over the prior year, along with select essays by a number of colleagues.  Completely new material, on the other hand, appears from the author’s collaborators. These are defense lawyers from the several states (including California) who belong to the National Workers’ Compensation Defense Network (NWCDN). 

            Though the book, published now for several years, is a valuable, completely immersive read, it nevertheless now bears (unlike before) a defense orientation.  A reading is not quite the defense-fest experience one has at the Orlando WCI gala or similar events.  Yet, as the various defense lawyers lead discussions for their respective states on the issue of COVID, virtually all line up with the supposed definitive analysis for why COVID-19 could not possibly be either an accident or occupational disease – only on rare occasion acknowledging the injured worker’s (or his widow’s) perspective.

***

            The book features a subtitle, COVID-19 in the Workplace.  And, notably, the first section of the book is comprised of twenty-one essays addressing workers’ compensation and COVID-19.  The treatment is comprehensive, with Robinson and his collaborators treating such items as basic compensability; the trend of states enacting causation presumptions; and the compensability of injuries sustained by telecommuters. 

            Robinson has the most articulate voice here in terms of policy.  He identifies cases of certain states where infectious diseases have, historically, been compensated, even without an occupational disease mechanism being employed.  He identifies, for example, the famous Pennsylvania case City of New Castle v. Sallie (1988), where an unfortunate office worker died from bacterial blood poisoning after a good-will kiss (at an on-premises maternity leave party) he gave to an infected but latent coworker. 

            Robinson, however, does not perceive workers’ compensation as a particularly good vehicle for providing coverage and potential compensation for an infectious disease like COVID.  This is so, as most can intuit, because COVID is just that, an infectious disease, and one that can be contracted virtually anywhere.  Of course, it is indeed non-work social settings, like bars and restaurants, church and choir practice, etc., that seem, for most, the most risky environments. 

            Robinson is correct in this regard.  However, it is submitted that no reason exists, in the present day, to reject the idea that those whose work put them at actual or increased risk of infectious disease should be barred from workers’ compensation.  This is certainly so when medical causation (however much a challenge) demonstrates work-related causation.  Further, for better or worse, American society has no 24/7 system of disability and medical insurance, so it is hardly unreasonable for those who believe they have been infected at (or have had their loved ones killed by) work to pursue workers’ compensation benefits. This is certainly so when they have no other insurance providing for disability and medical coverage.    

            Robinson does not think much of governors taking executive action to create COVID presumptions. Indeed, one of his essays is entitled, “State Governors Have Pens, Who Needs Legislatures?”  Another of his critiques echoes the same he has voiced about the popular PTSD presumptions: why should certain workers like first responders or front-line workers (those who labor in grocery stores and hospitals), enjoy presumptions, when the general population does not? 

            Another essay by Robinson sets forth the welcome reminder that presumptions have, over the century, been common phenomena of workers’ compensation laws.  On the other hand, it is undeniable that the promotion and enactment of presumptions in the present day has become a favorite of legislatures.  The first-responder cancer and PTSD presumption mechanisms of the last decade or so are obvious examples.            

***

            Among Robinson’s additional essays of interest is his reprint of The AMA is on Another Collision Course with Protz.  Robinson published this wise essay in August 2020; in it, he explains how the AMA has suspended its historical pattern of publishing occasional new editions of the AMA Guides.  He explains that the AMA has a new plan: “Not to create a Seventh Edition, but to continuously update the Guides to reflect the current science and best practice of medicine.”  The new version will be online, and no new hard-copy text will apparently be published. 

            Here, in summary, is Robinson’s concern over the proposal: “The AMA’s proposed method of ‘updating’ the Sixth Edition on a rolling basis flies in the face of Pennsylvania’s Protz II decision….”  (Citing the astonishing Pennsylvania case, Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017), which forbade the "most recent edition" formulation, and struck the Guides from the law.)  Robinson takes for granted that “to the extent that the AMA makes changes to the Sixth Edition, on a rolling basis, or otherwise, those changes would not be effective in Pennsylvania.” 

            This observation is surely correct. 

***

            As foreshadowed at the outset, Part 2 of the book is prepared, in part, by Robinson’s collaborators from the NWCDN.  Robinson and collaborators proceed through the several states and identify jurisdictional trends and cases.  Virtually all of the contributors take a stab at analyzing how COVID might or might not be compensable under the accident and occupational disease provisions of their laws.  As noted at the outset, a common (though not unanimous) refrain is that COVID clearly will not be compensated.

            All of this material is must-reading for the true national expert.  Still, the most intriguing and helpful material is constituted by the Part 2 summaries of the most important cases decided the last year in each of the respective states.  It is here, simply by analogy, that the practicing attorney, judge, and true student of the field will learn the most.