As to COVID-19, are potential claims for front-line healthcare workers compensable? Specifically, for those working in Emergency Rooms or having face-to-face interactions with patients, how is the medical causation analysis affected?
Under current NC law, to prevail on a claim for workers’ compensation benefits, a claimant must show that the claim arises from an injury by accident (IBA) or from an occupational disease (OD). A COVID-19 claim is most likely to be asserted as an OD claim. COVID-19 is not an enumerated OD, most of which involve poisoning related to exposures to particular substances or chemicals. North Carolina’s OD statute includes a “catch all” provision for other diseases not specifically enumerated, if the “disease” meets very specific criteria.
Prior Case Law in NC
For infectious diseases, the case law is limited, and so are crystal clear answers. But, in general terms, a claimant will most likely have to show some kind of significant “increased risk” in order to make out a viable workers’ compensation claim for COVID-19. Contracting COVID-19, simply because someone at work exposed a claimant to it, is probably not sufficient evidence of “increased risk.”
The leading case in North Carolina involves an exposure to hepatitis. The claimant’s job involved testing blood at a hospital lab. The blood samples were often infected. And, the blood samples sometimes came into contact with the claimant’s skin. So, all of the evidence was that the claimant’s work placed him at “increased risk” of contracting hepatitis, which was one of the diseases often found in the blood that he routinely tested. In addition, the claimant had no other personal characteristics or habits that could explain how he contracted hepatitis, outside of work. Even though hepatitis might be an “ordinary disease of life” in most cases, and even though the claimant could not pinpoint a specific exposure that caused his hepatitis, our Supreme Court concluded that this particular claimant was at “increased risk” of developing hepatitis, as compared to the general public.
“Increased Risk” in North Carolina
NC courts say that “increased risk” includes hazards that are “peculiar to” and “characteristic of” an employment, making that work particularly risky when compared to working in general and to living in general. As COVID-19 gains a foothold, and as more and more of the population is exposed, the less and less likely it is that any particular work exposes a claimant to an “increased risk.” However, the “increased risk” analysis is highly fact specific.
It seems plausible that some healthcare workers may be able to put on evidence that they belong to a class of workers that is at “increased risk.” But, even if “healthcare” sounds high risk, not every healthcare worker has the same risk profile. For example, someone working in the billing department at a hospital probably faces different hazards than does the person administering a COVID-19 test. And, conversely, not every routine job is necessarily low risk. Based upon the specific facts involved, perhaps a security guard at an ER, or the janitorial staff working at a hospital, is an example of a job that includes hidden risks.
The current pandemic creates an odd situation in that the evidence may establish a general risk that is already prevalent in the population, rather than a specific risk that stems from employment in the healthcare industry. Mainstream media suggests that a significant percentage of the population has already been infected with COVID-19, but that the symptoms can be so mild that they do not know it. Because so many carriers of the virus cannot be readily identified, the result is that the infected, in turn, infect … and the cycle repeats. In the end, while healthcare workers may be interacting with the individuals who show the most problematic symptoms, does it necessarily follow that they are exposed a greater risk of contracting COVID-19?
It is easy to see how odd fact patterns may test the limits of how we understand “increased risk.” But, from where we stand at this time, it seems reasonable to point out the following: When everyone is special, then no one is. Or, stated differently, when the exposure exists on such a widespread level that everyone is at significant risk, then is there really anyone who is at increased risk? And, beyond the question of whether a claim can be made out in theory, a claimant must still show actual causation. Establishing causation may be a burden too heavy for most claimants to carry, even in the healthcare industry, because it may be difficult to pinpoint a specific exposure at work, or to rule out other non-occupational exposures.
Should we deny the claim?
Based upon what is currently known about COVID-19, and with the caveat that everything is developing rapidly, it seems like it will be a rare situation where COVID-19 is going to be compensable under North Carolina law. But, the compensability of any particular claim will turn on its specific facts. Apart from the legal questions that COVID-19 raises, completing a full investigation of a COVID-19 claim, within the time parameters that NC law contemplate, creates a significant practical problem for claims handlers. Most claims, of necessity, should not be accepted outright. In almost all cases, there will be a reasonable basis for denying a COVID-19 claim, but it is foreseeable that there may claims where it is more prudent to handle them on a “pay-without-prejudice” basis, or even to make active use of the “exclusive remedy doctrine.” The attorneys at Cranfill Sumner & Hartzog LLP stand ready to help you make these difficult decisions.