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As testing for the COVID-19 novel coronavirus becomes more widely available, the number of injured workers who test positive for the virus will increase. Can Vermont workers claim the COVID-19 illness in workers’ compensation cases? Can they receive workers’ compensation benefits for lost income and/or for medical expenses due to the novel coronavirus? Vermont workers’ compensation attorney Charles L. Powell states that, while the situation is still in development, the answer is yes—if you can prove you were infected at work.
Establishing the Burden of Proof
Following a work accident, the injured worker must meet the initial “burden of proof” in a workers’ compensation case. This means that he/she needs a medical expert’s opinion supporting the case.
For example, a worker who develops tendinitis and needs surgery and hospitalization will suffer large medical costs and lose weekly income, unless he/she has a case. Often the primary care provider and the surgeon will provide a helpful written opinion report. The report will state that the patient’s condition “more likely than not” is the result of repetitive use of their body while performing the job at the workplace. This allows the injured worker to meet the burden of proof and have a case.
What if the worker tests positive for COVID-19? Can the injured worker meet the burden of proof that his/her infection was the result of working for their employer? We are in the middle of the pandemic, and much is yet to be known about the disability, death, and cost of the disease. But some important medical facts are already known that can help answer these questions.
What We Know About COVID-19 So Far
The coronavirus is highly contagious. Infection is caused by contact with the virus on high-touch objects, like handles and equipment, or by coming within six feet of an already-infected person—even if that person is not showing symptoms.
This is why Vermont Governor Phil Scott signed an Executive Order known as “Stay Home / Stay Safe” on March 24 requiring the temporary suspension of all non-essential in-person business operations in Vermont. On March 30, Governor Scott ordered people coming into the state to self-quarantine for 14 days.
COVID-19 & Workers’ Comp
Vermont’s workers’ compensation system has not yet ruled on any COVID-19 cases. Therefore, it is not possible to know how virus cases will be treated based on precedent because there are no precedent cases. That should not discourage workers from bringing claims when genuinely exposed because of work-related activity, however.
It is already well known that medical workers are at increased risk of infection when treating those who have the virus. Non-medical workers who come into regular contact with others can also suffer an infection. All essential workers—from healthcare employees to grocery store clerks—need personal protective equipment (PPE), but there are not enough masks and coverings to go around. Yet, despite the risk of infection, essential workers are called to perform their jobs without PPE.
What does it mean if a test shows that a supervisor, customer, or co-worker was contagious at work? It means exposed workers get sick. If they get sick, they may need expensive medical care. Some will need hospitalization. Some will need to go to the Intensive Care Unit and be put on a ventilator. Some will not fully recover—even if they survive.
Physicians are reporting that some COVID-19 survivors are not having complete recoveries but emerge from the disease with lung, kidney, and heart damage that is permanent. Further damage to the brain and the liver is being noted as well.
Who pays for the lost income and who pays for medical costs? Who pays for the permanent damage to organs which permanently impair the ability to work? The worker and their family? Not if their illness is covered under workers’ compensation.
So, Can I File for Workers’ Comp If My Workplace Exposed Me to the Virus?
It depends—can the worker meet the “burden of proof” that his/her COVID-19 originated at the workplace? Current science concludes that if a person “self-quarantines” for 14 days and does not develop the virus, he/she was not infected. Therefore, it is important to prove where the worker had been in the previous two weeks and to exclude non-work-related infection as a cause.
Vermont’s workers’ compensation system is a “no-fault” system of insurance for injured workers. It is intended to pay lost income and medical expenses to support workers who suffer work-related disability and medical costs. Insurance benefits for Vermont’s injured workers include payment of weekly checks to the worker at 2/3rd of average pay for as long as the temporary disability continues; plus, benefit payments if the injury results in partial or total disability, or death benefits to spouse and children if the injury is fatal. Benefits also include payment of all medical and prescription expenses, hospitalization, therapies, ambulance, ICU, and transportation—and there is no deductible, no co-pay, no time limit to the length of medical care. As long as the treatment and costs are proven to be reasonable, necessary and related to a work injury, the workers’ compensation insurer pays.
If you or someone you know believes their case of the novel coronavirus COVID-19 originated from the workplace, contact me. You may have a case.