Survey of Covid-19 Insurance Issues Part 2: Workers’ Compensation
| Publication year | 2020 |
| Pages | 50 |
WORKERS COMPENSATION LAW
BY THOMAS W. HENDERSON, NICK FOGEL, AND JOSEPH F. "TRIP" NISTICO III
This article surveys insurance issues arising from the COVID-19 pandemic. This Part 2 focuses on workers' compensation matters.
Part 1 of this article considered insurance issues related to business income interruptions arising from the COVID-19 pandemic. This Part 2 discusses workers' compensation claims for COVID-19. It focuses on challenges that employees will likely face in establishing that their disease is work-related and offers strategies to overcome these hurdles. The article also includes suggestions for employers faced with these claims.
Because workers' compensation insurance coverage is controlled by the Colorado Workers' Compensation Act (Act),[1] Colorado policies for this coverage are more uniform than the commercial property insurance policies discussed in Part 1. However, even in the context of workers' compensation, forms and language may differ from insurer to insurer and from policy to policy, so it remains critical to review each policy in its entirety.[2]
Is COVID-19 an Occupational Disease?
The general rule under the Act is that an occupational disease is likely compensable if it can be fairly traced to employment. In other words, employees who are able to show that they contracted COVID-19 in the course of their employment should be able to obtain coverage. But proving this may be difficult.
The Act allows workers to receive benefits for "occupational diseases," which are diseases that can be fairly traced to the conditions of the claimant's employment.[3] For an occupational disease to meet this work-related test, a worker must establish that the disease
1. resulted directly from the employment or work performed,
2. can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment,
3. can be fairly traced to the employment as a proximate cause, and
4. does not come from a hazard to which the employee would have been equally exposed outside the work environment.[4]
Some common forms of occupational disease include
■ repetitive motion diseases, such as tendonitis[5] and carpal tunnel;[6]
■ chronic back or joint pain caused, or aggravated by, repeated lifting or squatting;[7] and
■ conditions brought about by long-term exposure to hazardous chemicals or other harmful particles.[8]
Whether COVID-19 is considered an occupational disease may be driven in part by the profession at issue. For example, those employed in certain high-risk professions, such as healthcare workers and first responders, may be more likely to prevail in COVID-19 coverage disputes. These professions generally require stricter recordkeeping and more virus testing than others, and due to the amount of human contact they involve, it is more likely that virus exposure in these professions is work-related.[9]
An occupational disease does not have to be one uniquely associated with the employment.[10] Coverage may also be triggered if an employee has COVID-19 and the condition was contracted either at the place of employment or through employment-related travel, provided the employee did not contract COVID-19 while on a personal detour.[11]
Instructive Precedent
While the potential impact of COVID-19 on workers' compensation is largely unprecedented, decisions from other jurisdictions involving coverage for other communicable diseases are instructive. For example, the Supreme Court of Minnesota, in Olson v. Executive Travel MSP, found that an employee who became infected with a novel strain of influenza while traveling in Asia for work and later developed chronic bronchitis as a result of the influenza was entitled to workers' compensation benefits.[12]
The claimant was able to establish that she contracted Influenza-type B during her work travel to Asia because that specific virus was not present in the United States when she contracted it.[13]
Proving that COVID-19 was contracted at a place of employment or through associated travel may be more difficult compared to other communicable diseases. Unlike the flu virus at issue in Olson, SARS-CoV-2 is widely distributed across the United States. Further, in most cases, tracing virus exposure to an employee's employment as a proximate cause of the disease requires a medical opinion.[14]
Tracking Methods
Tracing the source of exposure to highly communicable diseases such as COVID-19 may also require the use of techniques like contact tracing and genome mapping. Contact tracing involves tracking down individuals who have had recent prolonged or intimate exposure to a person who has been confirmed to be COVID-19 positive when such person may have been infectious.[15] While the United States has yet to widely use contact tracing in its fight against COVID-19 spread, other countries such as South Korea and New Zealand have successfully used this technique to control outbreaks.[16]
While contact tracing may not be a practical means for all individuals to trace the source of their exposure, it may be useful where the individual has had limited contact with others. Contact tracing may also be used by insurers seeking to deny coverage to show that a claim -ant was exposed outside of work. Although it remains to be seen whether contact tracing could be an effective tool in these types of claims, it is possible that Colorado will, eventually, implement the robust contact-tracing measures necessary to effectively track COVID-19 spread. Colorado is in the process of hiring additional contact-tracers so that the system will be able to handle up to 500 cases a day.[17]
Genome mapping also provides some promise to track COVID-19 spread on a granular level. This approach involves tracking the virus's mutations. Because viruses mutate so rapidly, scientists have been able to identify distinct COVID-19 strains. For example, scientists were able to identify three distinct...
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