Thursday, August 26, 2021
New Article Explains Pennsylvania Law as to Compensability of Infectious Diseases, Reports on COVID WCJ Adjudications
The Pennsylvania Workers’ Compensation Act features no statutory presumption of causation for COVID-19. Yet, infectious diseases, including COVID, were, and are, as a matter of legal causation, compensable under the law.
They are compensable under our state’s two tracks of recovery approach. The first track of recovery for infectious diseases is under the occupational disease provisions of the law. Section 301(c)(2) establishes that the term “injury” encompasses occupational diseases. One cross-references, meanwhile, Section 108 of the Act for the familiar list of those occupational diseases. They are paired with occupations in which certain diseases have been shown – or are thought to be – special hazards. The worker who suffers from the disease who has labored in the associated occupation enjoys a rebuttable presumption of causation. The presumption is found in Section 301(e) of the Act.
The second track of recovery for infectious diseases is under the injury section itself, that is, Section 301(c)(1). As detailed below, the Supreme Court, in 1987, declared that “injury” means an adverse or hurtful change. This was so held in the landmark case Pawlosky v. WCAB (Latrobe Brewing Co.).
Of course, seeking to prove medical causation is another issue. In this regard, many physicians seem shy to assign work causation in disease cases. Too many opportunities for hazardous exposures exist for physicians, even sympathetic treating doctors, to want to vouch for causation in such cases. This seems to be the case in the realm of COVID.
At the time of this writing (August 2021), two Pennsylvania workers’ compensation judge decisions exist where claims of illness from work-related COVID exposure were considered. In one, the claimant (a nurse) did not submit an expert report, and her claim failed. In the other, notably, the claimant (the widow of a correctional officer) did submit such expert medical evidence and, aided by impressive exposure evidence, prevailed in her claim.
In a new article, the writer explains the Pennsylvania statutory scheme, including how the long-existing general presumption law (Section 301(e)) works for enumerated diseases, shows that many infectious diseases have been compensated over the years, and reports briefly on the two new trial-judge-level COVID adjudications noted above.
See David B. Torrey, Infectious Diseases: Compensability, COVID-19, and Related Issues Under the Pennsylvania Workers’ Compensation Act, Pennsylvania Bar Association Workers’ Compensation Quarterly Newsletter, Volume VII, No. 147, pp.33-45 (August 2021).
Download Infectious Disease Compensability Under the Penna Work Comp Act
Wednesday, August 25, 2021
I'm writing this post in scorching Saint Louis, where I am a visiting professor at Saint Louis University School of Law for the fall semester teaching workers' compensation and torts. It is always interesting to gain exposure to another state's workers' compensation law. And this is the first time I have ever taught these two subjects in the same semester. That, too, is an interesting exercise. It has been quite a while since I blogged, and I thought I would start out by introducing my forthcoming article in the San Diego Law Review: What COVID-19 Laid Bare: Adventures in Workers’ Compensation Causation. Here is the abstract:
This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.
Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do not compel them to do so). This is one reality that COVID laid bare: the workers’ compensation system rigidly resists paying occupational disease claims. The essay also explores a news account from Minnesota stating that nine hundred and thirty-five of nine hundred and thirty-five workers’ compensation COVID-19-related claims from meatpacking employees had not been paid as of February 2021. There was no shortage of other stories during the pandemic of mass denial of workers’ compensation claims in the meatpacking industry, a development having a disparate impact on communities of color, where more than half of all meatpacking employees are Latinx. These unpaid claim numbers suggest that something was “wrong” with causation analyses lower down in the administrative system.
Another truth COVID laid bare is that, aside from workers’ compensation, there is no nationwide short-term disability program in the United States. This leads to the conclusion that, if workers’ compensation insists upon super-strict versions of causation to cover claims, a different method of compensating short-term disability during pandemics or other “environmental” crises may become necessary. The conclusion seems almost inescapable because public health experts like Dr. Fauci are warning that we remain at risk for “new disease emergences” for the “foreseeable future.”
You can access the entire essay here.
I'll be doing a lot of workers' compensation writing and research here at SLU Law -- which is home to the Wefel Center for Employment Law and edits the ABA Journal of Labor & Employment Law. I'm feeling very much in my element.
Michael C. Duff
In a new, practical, article – falling into the category of risk management counseling – the authors identify and explain the federal statutory and regulatory authorities which govern hospital planning for emergency conditions, with a focus on the thorny issue of how such institutions are to address injury or death sustained by volunteer workers. Workers’ compensation and tort immunity are themes throughout. See John I. Winn, Seth Chatfield & Kevin H. McGovern, Medical Volunteers During Pandemics, Disasters, and Other Emergencies: Management Best Practices, 11 Seattle Journal of Technology, Environmental & Innovation Law 282 (2021), https://digitalcommons.law.seattleu.edu/sjteil/vol11/iss2/2/.
The authors devote a special part of the article to workers’ compensation coverage considerations. The authors – no surprise – identify a variety of state laws on workers’ compensation and volunteers that injects uncertainty into the coverage analysis. In this regard, some states can be identified as providing coverage for volunteers, while others cannot be so identified.
Meanwhile, a hospital’s attempt to require a “volunteer liability release” is fraught with similar uncertainty: “Consideration [of] the use of volunteer liability releases would require a detailed analysis of the host state’s statutory and case law.”
The authors review the National Incident Management System (NIMS), a project of FEMA, which, among other things, generally establishes that, in an emergency where workers are dispatched from a foreign state into the area of the emergency, the “sending state’s workers’ compensation provisions as well as tort liability statutes generally cover deployed personnel.” These and related plans have a shortcoming, however, in the lack of provisions for utilization of private sector volunteers.
The authors do identify a law, the Uniform Emergency Volunteer Health Practitioners Act, drafted “to address the complexity of workers’ compensation for cross-border volunteer healthcare practitioners,” but only eighteen states and D.C. have adopted its provisions.
The authors strongly advocate that hospitals maintain emergency plans that address comprehensively the issue of volunteers. “Preparation for worst-case scenarios,” they admonish, “involves consideration of all reasonable measures to mitigate the risk that responding volunteers may harm others … or injure themselves….”
The article concludes with a list of 18 volunteer-intensive hard recommendations/best practices for hospitals to consider in preparing or amending their emergency plans. One of these is inclusion in the hospital’s Emergency Volunteer Handbook of an explanation of “whether (or which) volunteers will be covered by workers’ compensation or commercial insurance.”
Sunday, August 8, 2021
Skilled University of Chicago Law Student Categorizes the States as to COVID, Recommends Reforms for the Next Pandemic
In a finely-wrought and sophisticated essay, a University of Chicago law student seeks to catalog the response of state workers’ compensation laws to the challenges of the COVID pandemic. He identifies four “novel categories” of laws, placing them “along a spectrum, from most likely to cover a meaningful number of workers to least likely.” These categories, which he admits are largely based on a “textualist reading” of laws (as opposed to empirical data), are likely coverage states, selective coverage states, uncertain coverage states, and unlikely coverage states.
The author correctly characterizes the current coverage situation as being fraught with uncertainty, which is neither advantageous for workers nor economically efficient.
He recommends, in any event, that workers’ compensation laws be amended so that, during the next pandemic, frontline workers – which he calls “public-facing essential employees” – have, through “coverage” presumptions, a more certain remedy.
See Dylan Moore, Striking a New Grand Bargain: Workers’ Compensation as a Pandemic Social Safety Net, ___ University of Chicago Legal Forum ___ (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3834807.