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

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