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.
Occupational Illnesses in North Carolina
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.
Occupational illness presumptions
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.
Showing that the worker contracted the disease through work
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.
How the Governor’s Order affects workers’ compensation claims
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:
- Healthcare and public health workers
- Workers in essential infrastructure operations
- Workers in stores that sell medicines and groceries
- Workers in the food, beverage, production, and agriculture sectors
- Human service operators
- Financial and insurance institutions
- Charitable and social service organizations
- Home improvement, supply and hardware stores
- Postal workers, delivery workers, shipping workers, and pick-up service workers
- Professional services
- Supply chain workers
- Military and defense contractors
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.
If COVID-19 is ultimately covered, what benefits can be paid to a North Carolina worker?
Workers who develop an occupational illness are generally entitled to the following work injury benefits:
- Wage loss. Generally, 2/3rds of their average weekly wages based on the worker’s earnings before they contracted the disease
- Medical costs. All reasonable and necessary medical expenses. In the case of COVID-19 victims, these expenses can include weeks and weeks in an intensive care unit of a hospital. Medical costs can also include medications, emergency services, and other expenses. Additional medical expenses may be due depending on how long it takes a person to recovery and whether there’s any permanent damage to the workers’ body.
- Death benefits. If a worker tragically dies due to the disease, and many people are tragically dying, then the dependents of the worker (usually the spouse and dependent children) should be eligible for the following benefits (if COVID-19 is covered):
- Up to $10,000 to cover the costs of the burial and funeral
- Payment of the average weekly wages for at least 500 weeks until the dependent dies or until a minor dependent reaches the age of 18. Some minor dependants may be entitled to fewer than 500 weeks if they reach majority in less time than 500 weeks.
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.
