Do not make bad case law. We hear this from our mentors, our supervisors, at our continuing education seminars. We appeal bad rulings knowing that, in Georgia and some other jurisdictions, appeals are discretionary for workers' compensation claims. Yet, over the past few years, we have seen a handful of our old "tried and true" defenses deteriorate. The Cartersville City Schools v. Johnson claim gutted our idiopathic injury defense. Shortly thereafter, the Frett v. State Farm ruling changed our lunch break exception, and some of our ingress/egress guidelines. Minnesota, Illinois, and California all have specific rules, whether by emergency order or emergency legislation, that carve out a niche for the compensability of very specific COVID-19 work injury claims. Georgia, and a handful of others, do not.
Well into a global pandemic, defense attorneys and claims professionals read the plain language of O.C.G.A. § 34-9-280 regarding occupational diseases. The statute is clear, and we have banked on it for over 18 months. So far, we have no appellate level case law for workers' compensation COVID-19 claims. With court closures, this is not a surprise. We are working to avoid losing another defense, and we have tools at our disposal to avoid this. There are a number of approaches to handling COVID-19 claims: by following plain language, aggressive practice, or, on a completely different note, by strategic company policy.
First and foremost, a "virus" is a disease. O.C.G.A. § 34-9-1(4) states definitively: "Injury" or "personal injury" shall not, except as provided in this chapter, include a disease in any form except where it results naturally and unavoidably from [an] accident.
With no allegation of a specific accident, a virus may only be compensable, if at all, under the Occupational Disease section of the Georgia Workers' Compensation Act at O.C.G.A. § 34-9-280. Each prong of a five-part test must be satisfied:
"(A) A direct causal connection between the conditions under which the work is performed and the disease; (B) That the disease followed as a natural incident of exposure by reason of the employment; (C) That the disease is not of a character to which the employee may have had substantial exposure outside of employment; (D) That the disease is not an ordinary disease of life to which the general public is exposed; (E) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence."
COVID-19 is an ordinary disease to which the general public is exposed; therefore, it cannot meet the criteria for occupational disease. As a result, the only way in which contracting COVID-19 could be compensable is if it can be shown to have resulted naturally and unavoidably from an accident arising out of and in the course of employment. General occupational exposure is not enough. The claimant bears the burden of proof.
This holds true even in those cases where an accident has been proven, and in industries in which an employee's specific job demands direct contact with infected people. Even health care workers and first responders would need to prove a specific incident occurred, such as being in close and direct contact with a sneeze from an infected person.
COVID-19 never was a nosocomial infection, unlike Methicillin Resistant Staphylococcus Aureus (MRSA). MRSA began as an infection that was solely contracted in hospitals. At that specific point in time, health care workers with MRSA passed the five-prong test above, and MRSA cases were compensable as an occupational disease. As MRSA evolved, it became something to which the general population was exposed, and it was no longer compensable as an occupational disease. COVID-19 has been a community-based infection from the beginning.
Non-COVID-Related Indemnity Concerns
This article focuses on how to approach actual COVID-19 claims, but we cannot avoid the economic realities of handling other claims during COVID-19. Economic business closures are not related to a work injury, but many businesses have claimants working light duty, or who are receiving temporary partial disability benefits (TPD). If a Georgia claimant who is working light duty stops working for reasons unrelated to his injury after having worked for at least 15 scheduled workdays, the claimant is not entitled to reinstatement of temporary total disability benefits (TTD) unless there is proof that the claimant's injury is the reason the claimant is unable to obtain other suitable employment. The business decision to close during a pandemic has nothing to do with the claimant's work injury or restrictions. As a result, as long as that claimant has worked light duty for 15 days, he is not entitled to automatic recommencement of indemnity benefits.
The situation is different for claimants receiving TPD benefits under O.C.G.A. § 34-9-262. The claimant will continue to receive TPD until the employer/insurer can prove that he would no longer have a reduction in earnings due to the injury. See White v. Nantucket Industries, 214 Ga. App. 542 (1994).
Turning to actual COVID-19 claims, two scenarios prevail. They are set forth below for reference. One is contact with infected co-workers. The other is contact with infected individuals, who are not co-workers, encountered while on the job.
Scenario one: Contact with infected co-workers. Employee A contracts COVID-19 and tests positive for the virus. Employee B is in frequent, direct contact with Employee A before the positive test, becomes ill, and starts to miss work due to his own diagnosis of COVID-19. In this scenario, COVID-19 remains a disease to which the general population is exposed and cannot qualify as an occupational disease. As a result, Employee B has not sustained a compensable workers’ compensation injury. There was no accident arising out of and in the course of employment. To obtain a finding of a compensable event by contracting COVID-19, the burden of proving that the disease resulted naturally and unavoidably from an accident is on the claimant, and this is not an easy burden to meet.
Scenario two: Contact with others: deliveries, food service workers, school staff, retail. The second common-infection scenario involves employees who make deliveries to hospitals, nursing homes, or governmental facilities; or a trucker making deliveries to a pharmacy or grocery store; or a food preparation associate who comes into contact with an infected customer and then becomes ill. It could also be a custodian at a school who comes into contact with an infected parent of a student. COVID-19 is a disease to which the general public is exposed, and to which the claimant may have had substantial exposure outside of employment. COVID-19 is not an occupational disease, so contracting COVID-19 in each of the above instances is not a compensable workers' compensation event in Georgia. Just as in the above scenario, the burden of proof is on the claimant to prove the disease resulted naturally and unavoidably from an accident, and this will be difficult to establish.
Defense in Reality
In reality, and regardless of the statute, individuals will still attempt to bring these claims. The most challenging COVID-19 claims are death claims. The first claim I saw was one of the "scenario two" claims. A handful of individuals at a facility contracted COVID-19, and an employee succumbed to his own COVID-19 infection. Not only was this a COVID-19 claim, it was a death claim.
After putting the shock of losing a loved one aside, a beloved co-worker, to a threatening new disease, the reality of the statute gave both sides pause. Neither wanted to create bad case law. The claimant's attorney's question was: Do we go forward to hearing and allow the widow to lose the claim based on the plain language of the statute? For the defense: Do we go forward to hearing, have just enough medical evidence and testimonial evidence to lose, and deal with multiple appeals?
It was a strange game of chicken that ended up with a pro-se widow and a settlement. There was obvious evidence available: Most people drive gas vehicles that require refilling at pumps touched by dozens of people or use public transportation to commute to work, and, of course, everyone has to eat. Even contact with a grocery delivery driver creates potential exposure to COVID-19. Both sides were ready to get aggressive, but the language of our statute pushed the claim where it needed to go.
And yet, there is still the fear of creating case law. As we defend these claims, let us review every other occupational disease claim we have defended, and use this experience as our springboard for aggressive handling. Think back to the claimant who thought she contracted a stomach infection from exposure to raw chicken at her job, yet frequented a number of local restaurants with poor health department scores: Where has the claimant been eating? That particular bacteria was a disease of ordinary life, to which the general public eating at restaurants was exposed. Recall your famous willful misconduct claim, wherein on-site surveillance caught the claimant refusing to wear the required personal protective gear and refused to comply with social distancing rules that are well-defined and acknowledged by signature. Following rules removes many of the inherent risks of injury or disease, and willful misconduct is always interesting to assert as a defense.
For retail and mall workers, do surveillance cameras in the parking area show the claimant stopping at a local store to mingle in a large crowd of shoppers? If there is no on-site surveillance, go back to basics, also known as Facebook – if an injured worker is trying to assert COVID-19 as the result of scenario one or two, poorly timed social media posts can defeat their claim altogether. Review the employment file: It may show that the claimant took time off to travel, attend a wedding, visit family, or go to the beach. Use the tools you have always used for occupational disease claims and be prepared with medical reports to bolster them. Make the other party afraid of creating bad case law.
Having said the above, employees may be fearful of returning to work in certain areas or for certain types of businesses. Essential businesses may see a shortage of employees for a variety of reasons. There is nothing in our statute that states employers/insurers cannot make the business decision to allow COVID-19 to be a compensable workers' compensation event. If this is the chosen route for a business, as with all employment guidelines, it must be set forth clearly, and the rules must apply equally to the employees deemed to be covered. If it changes, the employees must be notified.
These claims are treated like other compensable injuries. After the infection clears, at some point claimants are deemed to have attained maximum medical improvement. Usually, this is achieved by a lung scan, an antibody test, and even a functional capacity evaluation following a severe infection. Most of the light-duty work restrictions that ensue have more to do with recovery after the infection has cleared: Indeed, one will not be released to work with a positive test or lingering symptoms. On another level, workers' compensation is an exclusive remedy. Accepting these claims as compensable may prevent litigation even beyond workers' compensation, and as such, there is no bad case law to create.
We must keep in mind that COVID-19 is an important global event and is undeniably a communicable disease to which the general public is exposed. It is everywhere, and it is treated as such under the law, unless the statute or emergency issues set forth by your state say otherwise. Frankly, if we do enough good work, the higher courts may not feel the need to take on the other side's appeal. After all, it is in their discretion.