Posted on Friday, June 19th, 2020 at 8:45 am
The National Council on Compensation Insurance (NCCI) has posted a number of questions and answers about how the novel coronavirus is affecting work injury cases across the country. Some of the questions and answers follow. For more information, consult with an experienced North Carolina or Virginia workers’ compensation lawyer to discuss your rights and your claim. The answers are updated through April 30, 2020.
This is an open question that is being litigated. Workers’ compensation generally covers occupational illnesses that happen through work. Occupational insurance coverage normally does not include illnesses that are just as likely to occur away from work. So, the question being litigated is whether COVID-19 is more likely to occur at work than away from work. Advocates for coverage assert that for essential worker, the question should be answer in the affirmative. They say the healthcare workers, delivery workers, first responders, and other essential workers are more likely to get COVID-19 while serving the public than at home. Some states are passing or considering passing legislation to answer this question. Until the state passes a law, the question will be resolved by the courts on a case-by-case basis.
Each state, including North Carolina and Virginia, has passed either legislation, issued executive orders, or both in regard to a variety of COVID-19 business and employment issues.
So far, as between the two states, only North Carolina has been moving forward with passing legislation to cover workplace illnesses or death of essential workers due to COVID-19. The orders mostly apply to how cases will be conducted. As of the date of this writing, those efforts are still pending.
You can find a good overview of ongoing State legislative initiatives across the U.S. specifically with respect to coverage of employees exposed to COVID-19 here.
Many businesses are shifting to online and curbside pickup services. The employees are shifting from working as waiters for example to helping with deliveries. Generally, the main issues will be whether they are considered employees and what their pay is. Employees are entitled to work injury benefits if they are injured while working. Independent contractors are generally not entitled to benefits for a workplace injury – through the state workers’ compensation system. A skilled work injury lawyer can explain what calculations (Pre-Covid 19 or Post-Covid 19) will be used to determine your average weekly wage and whether you qualify as an employee or an independent contractor.
Yes. New reporting requirements set forth by the Department of Labor and OSHA have been created for employees who contract COVID-19.
Has Congress or the administration taken any specific actions that would directly impact the state-based workers compensation system?
So far, no specific federal legislation or regulatory initiatives that would “impact the workers compensation system” have been acted. There are some indirect affects due to the passage of the CARES act to help employers keep more employees on their payrolls. “The House of Representatives Committee on Financial Services has proposed considering a Pandemic Risk Insurance Act (PRIA).” Other than that, as mentioned in previous blogs, many states either have passed or are in the process of passing legislation that would give first responders or in some cases, all essential workers a presumption that if they contract illness from COVID-19, that it was contracted on the job, and therefore compensable.
Unfortunately, Virginia is not among those states and as I’ve said in a previous video, this is a travesty and must be addressed when the legislature goes back for its next session in Richmond. I continue to urge all residents of the Commonwealth to contact their state Representatives and urge that legislation is introduced that at a minimum, protects our frontline healthcare workers in the event they contract the virus and become sick.
On the other hand, North Carolina is moving forward to address this problem with House Bill 1057. Please urge your North Carolina State Legislators to pass this bill into law.
Does the Families First Coronavirus Response Act (FRCA) address workers compensation, including the treatment of payroll? Will payments by employers for qualified paid sick leave and qualified family and medical leave expansion under the Act be used in the calculation of workers compensation premium?
“None of the provisions of the Families First Coronavirus Response Act (FRCA) expressly apply to workers compensation.” “In March 2020, Congress passed the Act in response to the COVID-19 pandemic. In general, the Act expands food assistance, addresses unemployment benefits, and provides emergency paid sick leave, emergency expanded family and medical leave, and tax credits.”
Th FCRA does modify and expand family and medical leave coverage (FMLA)– “by requiring employers with fewer than 500 employees to provide paid leave to eligible employees for a qualifying need related to a public health emergency.” “Qualifying need” generally applies to employees who can’t work (or telework) because they need leave care for a child under 18 – if the child’s school or place of care is closed or the childcare provider isn’t available – due to the public health emergency. “Public health emergency” means an emergency with respect to COVID-19 declared by a federal, state, or local authority. Previously, the FMLA only applied to employers with more than 500 employees.
“The section in the Act on Emergency Paid Sick Leave (EPSLA) provides that an eligible employer will provide an employee with paid sick time if the employee is unable to work or telework for reasons stated in the Act such as:”
North Virginia workers’ compensation attorney Joe Miller Esq. has helped thousands of employees get just settlements and awards. He’s been fighting for injured workers and workers with illnesses for more than 25 years. If you develop COVID-19 or are informed that you need to self-quarantine or stay isolated – preventing your from working, call Joe Miller, Esq., at 888-667-8295. or use my online contact form to arrange to speak with a respected work injury lawyer.
Posted on Thursday, June 18th, 2020 at 8:44 am
Every state is responding to the COVID-19 pandemic in different ways. One of the common priorities is to provide some protection for the first responders and front line workers who are helping to keep everyone safe and helping to treat those people afflicted with the disease. You can find a good resource to keep up-to-date with those efforts across the U.S. here.
First responders and front-line workers generally include:
Illinois, according to the National Review, has passed legislation that provides that during the state of emergency, workers who can’t work due to COVID-19 exposure don’t need to prove:
The legislation, in the form of an emergency amendment, creates a rebuttable presumption that the exposure was employment related and that the incapacity was “causally connected to the hazards or exposure from employment.” The amendment doesn’t force workers in essential businesses and operations to distinguish between onsite work and remote work – even though the risk for onsite workers is logically greater.
According to the National Review, the media are not considered essential businesses and operations. The rebuttable presumption also doesn’t apply to non-essential businesses and operations – even where workers are required to work onsite to keep the business going. The Illinois legislation is stronger than comparable legislation in other states because it does include workers in essential businesses and operations – in addition to first responders and front line workers. Businesses, according to the National Review article, are not happy that the workers compensation coverage has been expanded beyond first responders and front line workers.
According to Fire Rescue 1, Missouri has also passed workers’ compensation legislation to help first responders and front line workers. The new law creates a presumption that first responders who are either diagnosed with COVID-19 or quarantined due to COVID-19 were exposed to the disease through work. The law is an emergency rule announced by Missouri Governor Mike Parson. It applies to the police, to firefighters, and to other first responders (such as EMTs).
The rule takes effect on April 30,2020 but applies retroactively to “first responders who already have been diagnosed with the virus or are under quarantine.” Normally, workers need to prove that they acquired an occupational disease while – on the job.
Jefferson City police officer Jeremy Bowman said that COVID-19 has already affected 8 officers in St. Louis who have the disease and another 55 who are quarantined. Officer Bowman said that many other law enforcement and firefighter departments are have similar results. Officers and firefighters have no way of knowing whether the next person they help or arrest has the disease.
“Mark Woolbright, with the International Association of Fire Fighters, said he knows of at least 10 firefighters who have tested positive for COVID-19 in the 70 fire districts, fire departments and ambulance districts he represents in St. Louis County and St. Charles County.”
Quarantines usually last for 14 days. Treatment of the disease can involve missed work for weeks or months and expensive medical costs especially if a patient needs long-term hospitalization.
“The St. Louis Police Officers Association, the union representing rank-and-file officers with the St. Louis Metropolitan Police Department, said the emergency rule was a ‘game changer.’”
EMS1 reported on April 13, 2020, that Minnesota’s legislature passed a workers’ compensation bill for first responders which provides occupational illness protection for certain workers who contract the novel coronavirus. The bill applies to paramedics, firefighters, police officers, healthcare workers, corrections officers, and others. These workers won’t need to prove that they acquired the disease through their work. Any worker who has a positive COVID-19 result will be “presumed to have an occupational disease, thereby making them eligible for workers’ compensation benefits under state law.”
WCTI12 reported on May 13, 2020 that North Carolina leaders have bipartisan support to provide more workers’ compensation benefits, in the form of legislation, for frontline workers. The law, which has not been passed yet, would provide for a rebuttable presumption. I referenced this very helpful move by North Carolina Legislators in my last blog on this subject.
The rebuttable presumption means that police, firefighters, and other front line workers wouldn’t have to prove they developed COVID-19 while performing their duties. Instead, the burden would shift to employers to show the workers contracted the disease away from work. The shift In burden is often the difference between winning and losing a workers’ compensation case.
The legislators are also considering requiring that workers be tested before they can return to work. Workers who don’t test negative would not be allowed to return because they could affect co-workers and the general public. The bill applies to healthcare workers and essential workers in addition to first responders. The bill would also set aside $5 million away for workers’ compensation claims which are filed by employees of the government.
North Carolina workers’ compensation lawyer Joe Miller Esq. is keeping current with new rules and laws that help protect workers’ rights during the COVID-19 pandemic. He understands that many workers are heroes who are risking their lives to keep others safe. They should be protected if they contract the virus or need to be quarantined. To discuss your workers’ compensation rights during this health crisis, please phone Joe Miller, Esq., at 888-667-8295. or fill out my online contact form to speak with an experienced work injury lawyer.
Posted on Wednesday, May 27th, 2020 at 3:20 pm
Nurses are on the front lines of the COVID-19 crisis, They are helping out in ICU rooms, emergency rooms, and the rooms where patients are trying to stay alive on ventilators. They’re helping out with testing patients for the coronavirus with swabs and by other means.
These new duties are in addition to their regular duties of helping to prepare patients for surgery and participating in surgeries. Nurses help patents recover by monitoring their systems and giving patients their medications, Nurses also provide a variety of physical and emotional tasks such as:
Other duties that nurses with more advance training and certifications perform include:
In addition to certified nurses, there are registered nurses, nurse practitioners, critical care nurses, and other types of nurses.
Many nurses work in hospitals. Nurses also work in nursing home facilities, retirement facilities, assisted living facilities, a physician’s office, ambulatory surgery centers, and other outpatient facilities. Some nurses provide home health care
Nurses often suffer one or more of the following types of accidents during their lifetime”
Injuries from overexertion, slips and falls, and violence include:
Some injuries can force a nurse to lose time from work from months and months. Some victims suffer permanent injuries where they can never return to work or where they can only work with restrictions on how much they can lift, how long they can stand, or other restrictions.
Nurses, especially nurses who work in hospitals, are prone to many types of occupational infections, disorders, and diseases including the following:
Nurses can also be exposed to:
In order to be eligible for workers’ compensation benefits due to an occupational illness, the nurse must show, with the help of an experienced work injury lawyer:
Nurses who are exposed to these diseases may die. Survivors may never be able to work again or may need extensive physical and emotional care to return back to their nursing duties.
There’s currently no definitive answer or definitive North Carolina or Virginia law that determines whether nurses who contract COVID-19 are entitled to workers’ compensation benefits. COVID-19 is not listed in the relevant state statutes which govern occupational illnesses and therefore it is going to be considered an “ordinary disease of life” which almost certainly means that any infected healthcare worker who makes a COVID-19 worker compensation claim is going to be DENIED by the insurance company.
The right of nurses and other healthcare workers under the current statutory claim workers’ to claim workers compensation benefits is very doubtful.
One would think it seems relatively clear that nurses are exposed to COVID-19 through the work they do with COVID-19 patients or with even being near patients who have contracted the virus. On the other hand, nurses could also contract the virus at home, in a park, or anywhere outside their hospital or workplace environment. Generally, the likelihood of a nurse contracting the virus is much higher at work than away from work, but there is a reason it is called a “pandemic.” “Pan” means it’s everywhere.
Even if a nurse does contract the disease, there are questions about what would be covered. Generally, workers’ compensation covers reasonable medical expenses and a percentage (typically 2/3rds ) of their average weekly salary. For COVID-19, medical bills should include payment for medical testing and any treatments that are required including medications and medical consultations.
But as noted above, under the current laws, all cases would most likely be denied by the insurance company and head to hearing. In fact, our office has already fielded such calls, and an as expected, the insurance companies are, in fact, denying COVID-19 claims.
If the injured worker became severely ill and died from the disease, that death would likely occur well before any evidentiary Hearing to decide the matter. Because of the devastating impact of serious COVID-19 on the lungs, it is doubtful the employee could even provide any useful testimony before his or her death.
In the worst cases, the healthcare worker could die from the disease. In both North Carolina and Virginia, the families of deceased employees are typically entitled to payment for the funeral and burial up to a preset amount and compensation for lost income up to a preset amount of time. For example, death benefits in North Carolina are paid for up to 500 weeks with some exceptions.
Does this situation not seem very unfair, particularly for our frontline healthcare workers who risk their lives for their fellow citizens? Should a nurse or doctor who is dying on a ventilator from COVID-19 have to worry that his or her family will get NO compensation whatsoever through that State’s Workers Compensation System? To further worry that they will have hundreds of thousands of dollars in bills hanging over their head, even if the healthcare worker should recover from the virus?
The good news is there is an easy fix, which exists for some other diseases already, and that is to provide a presumption in the law for any healthcare worker who becomes ill from COVID-19 that their illness came from work and therefore is compensable as an Occupational Disease.
Unfortunately, Virginia has seen fit to take no action thus far to provide any such presumption.
See my video where I have pointed out this horrible situation and pleaded with my fellow Virginians to contact their State Representatives and Senators to pass a bill giving our healthcare workers battling COVID-19 a presumption for workers comp coverage.
Many states have recognized this terrible problem facing healthcare workers and other essential workers who become ill from COVID-19 and have taken action.
Fortunately, in North Carolina two bills under consideration, House Bill 1056 will make COVID-19 or any Coronavirus a covered occupational disease for healthcare workers, and other first responders, and House Bill 1057 provides a presumption not just to healthcare workers, but all workers considered “essential” under Governor Roy Cooper’s Executive Order, that if they contract COVID-19, it will be presumed to be a compensable workers compensation illness.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has been fighting for injured workers for more than 31 years. He is available to speak with new clients about work injury claims during the COVID-19 health crisis. He understands the legal issues involved in filing claims for all types of accidents and occupational illnesses. For help now, call Joe Miller, Esq., at 888-694-1671 or use my online contact form to talk to an experienced workers’ compensation lawyer.
Posted on Wednesday, May 27th, 2020 at 3:18 pm
As the COVID-19 pandemic continues to force the closing of numerous businesses and still requiring many people to stay in their homes, delivery workers have become essential to lives of everyone in North Carolina and Virginia. Homeowners and essential business rely on delivery workers to provide their medical products, their groceries, their entertainment, their clothes, and many other products. Executive Orders issued by the Governors of both Virginia and North Carolina consider such workers to be “essential” to our lives and therefore except from many of the lockdown rules.
Some food delivery workers have their own vehicles and work for companies like Grubhub, Uber Eats, or others. Many delivery workers are employed by local restaurants. Other types of delivery workers use vehicles owned by retailers and big shipping companies such as Amazon or UPS.
What these workers all have in common is that they may be risking their lives by delivering products through the people they came into close contact with during their workday and the products, packaging, doorknobs, and other things they routinely touch. What they also have in common is that they risk being hurt on the job while getting their delivery items, transporting their goods, and making the delivery to the homes of customers who have made increasing demands on such delivery services due to the lockdowns.
Unfortunately, in Virginia, as has been explained in a previous article and video, if such a worker contracts COVID-19, he or she will face a very steep uphill climb on denied claim that has little chance of success.
In North Carolina, on the other hand, at this writing, at the end of May, 2020, there is are two bills currently under consideration by the Legislature in Raleigh which would give all workers deemed “essential” by the Governor to be entitled to a presumption that they contracted COVID-19 on the job if they become ill from it.
Why Virginia currently has no similar bill being sponsored or under consideration is a mystery, especially with a Democratic-Controlled Legislature.
Besides COVID-19, common types of accidents that can occur during a delivery include:
It is very important to also remember that if the injured worker is hurt due the negligence of another driver, he or she would also have what is referred to as a third party claim against the driver, in addition to the workers comp claim.
At Joe Miller Law, we handle many cases where both types of claims—the Workers Comp and the Personal Injury—as both are necessary to pursue as a result of the same car accident.
You need to know that the interactions between the realm of Workers Comp and Personal injury can be quite complex and you should definitely not attempt to resolve either claim without consulting an attorney familiar with the complex interplay between comp and personal injury claims. Settling your PI claim, for instance, without notice to, and permission of the comp insurance company could have grave implications for your comp claim.
Other possible delivery service accidents that can cause a delivery worker to lose time from work include forklift injuries, dog bites, and repetitive stress injuries; however, repetitive stress is generally not going to be compensable unless it involves carpal tunnel syndrome.
Generally, workers in North Carolina and in Virginia must be employed by the delivery service, restaurant, retail store, or another business. If a worker is an independent contractor, that delivery worker will likely not be entitled to workers’ compensation benefits.
Experienced workers’ compensation lawyers fight to show that a worker is an employee and not an independent contractor. It is not a determining factor that the employer says the worker is an independent contractor or even if they signed some kind of bogus “contract” or “agreement” that they are an independent contractor.
Whether someone is classified as an employee or an independent contractor depends on various factors that the Commission will consider.
At the core of these factors is the ability of the employer to control when and how the worker does his/her job. Some of the factors that help determine employment status include:
Generally, workers are entitled to worker’s compensation benefits if they suffer an occupational illness. To qualify, the worker must:
A common example of occupational illnesses that are covered by state workers’ compensation laws are:
Most likely delivery workers who develop COVID-19 would NOT be awarded workers’ compensation benefits based on an occupational illness under the current laws. First of all COVID-19 is not in the list of covered Occupational Diseases. Secondly, it would be considered an “ordinary disease of life,” meaning something that could be acquired anywhere, and something to which the public is also exposed.
This is clearly a very unfair situation, particularly for our cherished healthcare workers fighting the pandemic on behalf of other citizens. How can this be fixed?
The solution is for the states to pass laws authorizing benefits for COVID-19. Currently, North Carolina and Virginia authorize benefits for some specific occupational illnesses – but COVID 19 has not yet been added to the list; however, as mentioned previously, North Carolina has a bill proposing that it be added to the list of presumed occupational diseases for healthcare workers.
For some workers, such as healthcare workers, one would certainly think that they are at great risk for contracting the coronavirus because they work with numerous infected patients. For food delivery workers and other delivery workers, a case can be made that they are at increased risk of developing the disease too; however, unless and until the Virginia or North Carolina Legislature remedies the situation by way of passing new laws, any such workers attempting to file a workers comp claim for COVID-19 infection will face a denied claim and a long path to a Hearing before the Commission. By then, the worker suffering from a COVID-19 infection could very well be incapacitated on a respirator, or deceased.
This situation is certainly terribly unfair, but there is an easy fix, which is for lawmakers to pass legislation to include COVID-19/Coronaviruses and/or Pandemic diseases in the list of occupational diseases, at least for healthcare workers. Another solution would be to provide a rebuttable presumption that anyone who works in an essential industry during the pandemic who becomes ill from COVID-19 has a compensable workers compensation case.
As of this writing only North Carolina has under consideration two bills which will fix this unfair situation. House Bill 1056 would count Coronavirus as an occupational disease entitled to a presumption of compensability and House Bill 1057 ,would give a presumption of compensability from pandemic diseases not just to health care workers, but all workers deemed “essential” by Executive Order of the Governor during a pandemic.
Right now, in our current situation, pursuant to Roy Cooper’s Executive Order, “essential workers” would include many more workers than just healthcare workers, but also warehouse and delivery workers, and many others.
Tragically, there is no such bill under consideration in Virginia. See my video pleading with citizens to contact their Virginia State Representatives to voice their concern about this very important issue.
Should we not at least cover our frontline healthcare workers and give them workers compensation coverage in the event they become ill or die as a result of their exposure to COVID-19? Please call or email your Virginia State Representative or Senator and let him or her know that this is really a travesty and that you demand that this be fixed immediately. Tell them that North Carolina is already ahead of Virginia and tell them about NC House Bill 1056 and 1057. Why has Virginia not stepped up? All they need do is copy the language of the proposed NC Bills, and pass them into law here in Virginia.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has helped thousands of injured workers get the full benefits they deserve for workplace accidents and for occupational illnesses. He fights to show that you’re entitled to benefits and that you shouldn’t be forced back to work before you’re ready. He then demands payment for all reasonably necessary medical and the percentage of lost wages that you’re entitled to. He also negotiates long-term settlements. To discuss your work injury claim, whether you’re a food delivery worker or any type of worker, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with an experienced work injury lawyer.
Posted on Tuesday, May 19th, 2020 at 8:56 am
Although we never really went away, we know that the challenges of our staff working remotely and relying on our answering service for the fielding of most calls was an inconvenience for many of our clients, potential clients, and others.
Accordingly, we are pleased to announce that as of Monday, May 18, 2020, most of our staff has returned full time to our main office in Virginia Beach. Our phones are now back to being answered by our staff from 9AM-5PM Monday-Friday.
That being said, consistent with the Governor’s Guidelines, and in order to maximize the safety of both our clients and staff, we would ask that anyone coming to our office please abide by these precautions to help prevent the spread of the COVID-19 virus, which are the following:
Of course, depending on the progress of the fight against the COVID-19 virus, the above is subject to swift change at any time.
Thank you so much for your support during these unprecedented events and please be safe and stay healthy.
-Joe Miller, Esq.
Posted on Monday, May 18th, 2020 at 8:55 am
The COVID-19 healthcare crisis is causing a lot of changes to the way that workers’ compensation in North Carolina are handled Some of the many changes the North Carolina Industrial Commission is making include the following:
Chief Justice Beasley ordered on April 2, 2020 that all mediations of workers’ compensation cases in North Carolina will be conducted remotely. Alternatively, the mediations will be scheduled for a date on or after the first of June 2020. All parties must consent to a remote mediation – or the mediation will be rescheduled to the later date.
Chief Justice Beasley also announced the following changes to the workers’ compensation process – in order to protect the health and public safety of North Carolina residents:
In the case of hearings without lay witnesses, the parties should obtain the relevant expert medical testimony that is needed to resolve the issues.
The North Carolina Industrial Commission will now accept agreements that are:
The NCIC is requesting that the lawyers (for the employees and employers) who are working remotely either advise their legal assistants when NCIC orders have been sent or provide the Executive Secretary’s Office with the emails of both the lawyer and the legal assistant
The NCIC will consider motions by lawyers who have to reschedule vacations, non-emergency medical procedures, and other plans – for which secure leave was already filed.
There is one important caveat/condition. The employee must sign through DocuSign. The lawyer for the employee cannot “sign via DocuSign on behalf of an employee.”
The NCIC hasn’t agreed to any “automatic, blanket extension of filing deadlines for the following reasons:
A few Q and As provided by the NCIC about telehealth visits include the following:
“Effective immediately and continuing until further notice, the Industrial Commission will liberally grant the following types of motions:
The NCIC is encouraging its staff to work remotely as much as possible. The NCIC is encouraging parties to contact the NCIC by email instead of by phone because many staff employees are working remotely where they can easily access their email and because, with email, employees can respond when they are ready. Also, many voicemail messages to office phones don’t get forwarded to personal phones.
The NCIC provides a list of email addresses for staff members.
North Virginia workers’ compensation attorney Joe Miller Esq. has been fighting for injured workers and workers with occupational illnesses for more than 25 years. He is keeping current with the new requirements for handling cases during the COVID-19 pandemic. Cases are still be being heard. So, if you can’t work due to workplace conditions or a workplace accident, please phone Joe Miller, Esq., at 888-694-1671. or use my online contact form to speak with an experienced work injury lawyer.
Posted on Friday, May 15th, 2020 at 8:42 am
The COVID-19 pandemic is affecting every type of worker. Some work such as healthcare and delivery service work has been deemed essential by the Governor of North Carolina. Other work has been categorized as non-essential. Governor Cooper has issued a new Executive Order essentially placing North Carolina into Phase 1 of Re-opening, while still engaging in social distancing, testing, and possibly contact tracing.
Meanwhile, the pandemic is spreading through the state and the world. It is affecting nursing home residents and the elderly more than any other groups. Nurses, doctors, EMT personnel, ambulance service workers, and other health care professionals are at high risk for contracting the virus because they work with so many patients who already have the disease and because the disease is easily transported. Workers who deliver products to our homes are also at risk every time they touch a doorknob, pick up a package, or come into contact with other people.
I recently covered this issue in a couple of short, informal cell phone videos I did for Virginia Workers’ Compensation benefits, namely, if a healthcare worker gets ill from COVID-19 on the job, does he or she have a valid workers compensation case?
The answer, unfortunately for Virginia Workers, is while technically they may have a case, the real answer is that the level of proof required for an “ordinary disease of life” such as becoming ill from COVID-19 is so high that it will result in all cases being denied by insurance companies. So while a sick healthcare worker may be gasping for air on a ventilator, unable to work and facing thousands in healthcare costs, assuming he survives, the worker’s compensation insurance company will be denying payment for the claim, saying the sick worker has contracted an “ordinary disease of life,” cannot prove it came from work, and has therefore no case.
And of course, this is an outrageous situation, and that is why I did another video urging all citizens to call and email their State Representatives to get legislation passed that will protect our most cherished heroes—our healthcare workers who are battling this terrible virus.
So is the situation any better in North Carolina? Workers in North Carolina are entitled to work injury benefits (partial pay and medical bills among other benefits) if they are injured while doing their job. Workers are also entitled to benefits if they meet the statutory definition of an occupational illness.
Whether a worker who develops COVID-19 can request North Carolina workers’ compensation benefits is currently an open question, but unfortunately, it does Eligibility may depend largely on whether the worker was an “essential” worker and on other factors.
The North Carolina statute provides in North Carolina General Statute Section 97-53 that many specific diseases are considered occupational diseases. A few of these specific examples include anthrax, various types of poisoning (brass, zinc, lead, and manganese to name a few), bursitis due to intermittent pressure in the employment, and other illnesses listed in the statute.
If an injured worker contracts one of the specific diseases listed in the statute, then the injured worker is generally going to be able to obtain work injury benefits when a disease or illness is specifically listed such as lead poisoning. If a disease is listed, then there is a presumption (which can be rebutted) that the worker developed the occupational disease through work.
One possible avenue for recovery for workers’ compensation benefits for any worker who develops COVID-19 would be for the Legislature in Raleigh to consider adding COVID-19 to its list of specific diseases, or simply to create a special presumption that any healthcare worker who becomes ill from COVID-19, has a compensable claim.
But under the current law, COVID-19 is not specifically listed in the statute; however, the statute also has a broad definition that may cover COVID-19:
Item 13. “Any disease, other than hearing loss covered in another subdivision of this section, which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”
This definition in my opinion is slightly more liberal than Virginia; however, because it would still term COVID-19 an “ordinary disease of life,” the burden would remain on the worker to show not only that he or she was at increased risk of contracting the disease for the type of work performed but that the exposure at work was far higher than that of the general public. This may prove particularly challenging in light of the fact that we are in a pandemic, meaning that almost everyone runs the risk of exposure to the virus.
For COVID-19, coronavirus cases, under the current statutory scheme, the employee would need to focus on showing that the there was a greatly increased risk of contracting the disease for the type of work the employee did – as compared to the risk to the general public. Since everyone is at risk for contracting the disease, the focus will need to be on showing the worker’s job created a significantly increased danger.
The problem is, of course, that just like Virginia, as a practical matter, this places an immediate burden on the employee and most likely guarantees that virtually anyone bringing a COVID-19 Workers Compensation case is going to be denied by the insurance company and have to head to hearing. This is certainly not something that anyone struggling to breathe on a ventilator is going to be able to deal with.
Moreover, you need look no further than the marketing efforts of defense firms in North Carolina to see how difficult this will prove to be for workers who contract COVID-19 illness.
At least one well-known North Carolina Defense Firm has already laid out its legal strategy for defending any COVID-19 Claim, online, stating “In a pandemic, regardless of the employee’s employment, it seems unlikely that an employee will be able to establish, through lay evidence, where COVID-19 was contracted, or that the employee will be able to rule out, through lay evidence, where COVID-19 was not contracted.” This means they will force employees to prove that the disease was not contracted in just about every location except work, essentially an almost impossible task.
One of the ways experienced North Carolina occupational illness lawyers may use to help provide the worker’s job included and increased risk is through the Governor’s Order which identifies some jobs as “essential”. Any work that is essential means workers are also going to likely have more contact with people, packages, and items that may be contagious.
Some of the jobs identified by Governor Roy Cooer as essential, in his March 27, 2020 Executive Order are:
That being said, in my opinion, under the current statutory scheme, the only workers who have a shot at prevailing would be healthcare workers whose jobs put them at extremely high risk insofar as exposure to COVID-19, such as those testing people for COVID-19, those treating positive COVID patients, and possibly workers in nursing care facilities which are known to have very high rates of infection.
Still, the current statutory scheme will likely guarantee that the claim be denied, although the employer will have the option—if they are feeling generous—of paying some parts of the claim on a non-prejudicial basis, meaning they can choose to deny it later.
Is that unfair? Of course it is! How can we possibly treat our heroes this way?
But there is GOOD NEWS!
The North Carolina General Assembly is Considering a Proposed Bill to Fix the very unfair Situation
The good news is that the North Carolina Legislature has followed a number of other states and currently has under consideration House Bill 1057, which would provide a presumption that not only first responders and other healthcare workers, but anyone considered “essential” by the Governor’s Order, due to a pandemic disease would be entitled to workers compensation benefits. The presumption is rebuttable only by clear and convincing evidence.
At this writing, the bill is not yet in its final form, but hopefully, the Legislature in Raleigh will act with speed and pass this very important law. See the current version of House Bill 1057.
Workers who develop an occupational illness are generally entitled to the following work injury benefits:
Just one day and one night in an ICU unit can run tens of thousands of dollars. The amount of the payment for medical costs may be adjusted depending on whether the employee has other health insurance benefits.
North Virginia workers’ compensation lawyer Joe Miller Esq. is keeping current with the changes to state work injury laws due to COVID-19. He is working (often, remotely) to speak with clients and to process work injury claims. He has helped thousands of injured workers and workers with occupational illnesses get the just benefits they deserve. For any questions about COVID-19, please phone Joe Miller, Esq., at 888-694-1671 or fill out my online contact form to speak with an experienced work injury lawyer.
Posted on Tuesday, May 5th, 2020 at 8:43 am
Virginia Workers Compensation Attorney Joe Miller here urges all citizens of the Commonwealth to contact their State Senators and Delegates and urge them to pass legislation that enables any Healthcare worker who gets sick with COVID-19 to seek benefits under the Virginia Workers Compensation System. We need a law that creates a presumption that any Healthcare worker who is exposed to COVID-19 as part of their job got it at work and therefore has a compensable claim. Under the laws in Virginia as they exist now, it is virtually impossible for a Healthcare worker who becomes ill from COVID-19 to obtain any benefits under our workers compensation system. This is because it is a virus and therefore considered an “ordinary disease of life.” Isn’t this the least we can do for these brave heroes who put themselves and their loved ones at risk each day by helping us battle this terrible, invisible enemy? Please contact your State Delegate and Senator NOW while they are in session. The Governor could also issue an Executive Order.. Several other states have already recognized this problem and provided workers compensation presumptions for their Healthcare workers. Virginia needs to get on board.
Posted on Thursday, March 26th, 2020 at 11:10 am
Clearly many folks are concerned right now about the effect on their weekly compensation checks of any potential layoff of themselves and their fellow employees at work or company closures due to the severe economic downturn and mandatory closures related to the Coronavirus.
This is a very important question right now and also this particular question regarding layoffs happens to be an evolving and very active area of VA Workers Comp law.
The short answer is if you are currently under an ongoing, finalized Award for benefits, meaning an Award for weekly checks for either Temporary Total or Temporary Partial Disability, then NO, you will not lose your benefits; however, if you are NOT under an Award yet and your position is permanently eliminated or the layoffs are clearly permanent with no chance of re-hiring, then you will likely have a very difficult time of trying to obtain comp check benefits from the date of such layoff forward. You may only be able to claim benefits up until the date of the layoff. It’s not impossible to prove ongoing benefits in a permanent layoff situation, but you will be required to rise to a very high level of proof to show that your inability to obtain a job is due to your disability and not just to your job being eliminated permanently.
That being said, if the layoff is only temporary—as many will likely be in our current situation—then if you are not under an Award and on light duty, you would still be able to claim benefits; however, you would need to engage in active marketing of your residual capacity to work in order to prove your inability to find a job. And of course, you will likely end up at a Workers Comp Commission Hearing to prove you engaged in adequate marketing.
Of course, those held out of work 100% by their doctors due to their work injuries and have the physician’s work notes to prove it would not need to prove marketing.
If this all seems confusing, I encourage you to first see my video on the importance of being under an Open or Ongoing Award for benefits in Virginia. It’s important to understand what an Award accomplishes for you in Virginia.
So why is someone under an ongoing or Open Award in a better position compared to someone who is not in a layoff situation?
It’s because when you’re under an ongoing Award, that Award is a proclamation or Order by the Virginia Workers Compensation Commission that you are entitled to the weekly benefits stated in that Order on an ongoing basis, until proven otherwise by the defense. In other words, you have met your burden and you have won your case. Many times, the Award occurs due to an Award agreement, but the result is the same—once that Award has been entered by the Commission and the 30 day appeal period has passed, the Order is Final and you have won.
When you have an ongoing or Open Award for weekly benefits, it becomes the defense’s burden to prove you’ve been returned to full duty and that you are capable of performing your pre-injury work if they want to get out of paying you those weekly benefits. There are a few other ways for them to stop the Award, such as failure to comply with medical treatment or vocational rehabilitation, but they’re not relevant to our discussion right now.
If the defense cannot prove you are capable of a return to full duty, then you are going to remain under your ongoing Award and they still have to pay you your ongoing, weekly benefits even during the layoff and even if the layoff is permanent.
Now what about folks who are not under an Award yet, but are trying to prove one?
The case law is clear that for folks who are not yet under an Award, the difficulty of proving you are entitled to benefits really depends on whether the layoff is temporary or permanent.
This is because an injured worker who is not yet under an Award has no Order from the Commission regarding anything. Nothing has yet been proven, so the burden of proof remains on the injured worker to show he or she is entitled to benefits.
In a temporary layoff situation, if you are on light duty, assuming your employer does not accept you back at light duty status, so long as you are able to prove sufficient marketing of your residual capacity to work (i.e. looking for work elsewhere within your physical restrictions) during the temporary layoff, you should be able to prove you’re entitled to benefits. Of course, you will likely have to go to Hearing to prove that.
Again, if you are in a temporary layoff, and your authorized treating physician has you out 100% due to your injuries, then since you currently have no residual capacity to work per your doctor, you do not have to market or look for work. You would only need to prove your total incapacity with your doctor’s work notes and office notes.
Unfortunately, for those of you whose positions are eliminated and are fully and permanently laid off along with your coworkers, if you are on light duty and not yet under an Award, you will unfortunately find it much more difficult to be able to claim ongoing weekly workers comp benefits. The case law in such circumstance requires a higher level of proof to show that your economic loss is due to your injury and not the elimination of your job.
The Commissioners and Judges have reasoned in the case law that since you don’t yet have an Award, and your job has been eliminated, the burden is on you to prove economic loss due to your work injuries. And since the burden is on you for proof and since the reason you don’t have a job is because your job was permanently eliminated, then you need to prove your economic loss is actually related to your work injuries and not just the fact that your job does not exist any longer. In such cases, just doing the marketing/looking for light duty work as usual is probably not enough. There needs to be proof that not only can you not find a job, but the reason you cannot find a job is because of your work restrictions as set forth by your treating doctor. If you don’t have such proof, then the Commission will find that the loss is not related to your work injury. They will find that it is related to the fact that your job no longer exists.
Such proof may be through the hiring of an expert such as a vocational rehabilitation expert, and/or through some kind of testimony or other evidence from one or more of the potential employers where you applied that you could not be hired because your work restrictions could not be accommodated.
We think that the decision by the Court of Appeals back in 2016 which raised the standard of proof for permanently laid off employees was wrong and a harsh result, and in fact there were strong dissents by Judges on the case, but unfortunately those Judges were outvoted and that is the law in Virginia.
The only good news is that in many of the Full Commission decisions that have followed this 2016 Court of Appeals Case, the Commission has gone to great lengths to say it does not apply to the situation at hand. Clearly, the Full Commission also feels the Court of Appeals went too far and takes every opportunity to try to limit the harsh effects of that decision.
Also, just to be 100% clear, it is very important to distinguish between an Open or Ongoing Award and a Closed Award. A Closed Award is for some past period of weekly payments that has now ended because you have returned to work. Although such an Award contains a lifetime medical benefit and is also evidence that your claim is compensable (meaning there is no longer a defense that you did not have a legitimate, on-the-job injury) in terms of attempting to get your checks started again because you have been laid off, it’s almost like have no Award at all. In other words, if you’re on light duty, you would have to prove it’s a temporary layoff and you would have to prove marketing just like the folks with no Award at all. And just like those folks, you would not be able to prove any entitlement to ongoing checks if your layoff became permanent.
We hope this article has been helpful.
From all of us here at Joe Miller Law/The Work Injury Center, please stay safe, please follow the CDC COVID-19 Guidelines for prevention, and God Willing we will all get through this safely together.
Attorney Joe Miller has been representing injured workers in Virginia and North Carolina for over 32 years. If you have any questions about a worker’s compensation injury incurred by you or a loved one, please do not hesitate to reach out to us at 888-694-1671 or fill out our online contact form
Please do not wait to contact us, as there are time deadlines for filing your claim. If you fail to meet those deadlines, your right to benefits will be forever lost.
Posted on Thursday, March 19th, 2020 at 2:24 pm
Virginia and North Carolina Workers Compensation Attorney Joe Miller here explains why with some possible exceptions, it is unlikely that you would be able to pursue a compensable claim based on your contraction of the COVID-19 or Coronavirus at work. The possible exception might be someone whose sole job is to treat patients who are known to be infected with the virus, or test people for infection with the Coronavirus. Even then, it would be challenging.