{"id":4924,"date":"2020-05-15T08:42:11","date_gmt":"2020-05-15T12:42:11","guid":{"rendered":"https:\/\/joemillerinjurylaw.com\/?p=4924"},"modified":"2020-05-26T13:41:05","modified_gmt":"2020-05-26T17:41:05","slug":"filing-a-covid-19-workers-compensation-claim-in-north-carolina","status":"publish","type":"post","link":"https:\/\/joemillerinjurylaw.com\/filing-a-covid-19-workers-compensation-claim-in-north-carolina\/","title":{"rendered":"Filing a COVID-19 Workers\u2019 Compensation Claim in North Carolina"},"content":{"rendered":"

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\u00a0 <\/span>Executive Order<\/span><\/a> essentially placing North Carolina into Phase 1 of Re-opening, while still\u00a0 engaging in social distancing, testing, and possibly contact tracing.<\/span><\/p>\n

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.<\/span><\/p>\n

I recently covered this issue in a couple of short, informal cell phone <\/span>videos<\/span><\/a> I did for Virginia Workers\u2019 Compensation<\/a> benefits, namely, if a healthcare worker gets ill from COVID-19 on the job, does he or she have a valid workers compensation case?\u00a0<\/span><\/p>\n

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 \u201cordinary disease of life\u201d 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\u2019s compensation insurance company will be denying payment for the claim, saying the sick worker has contracted an \u201cordinary disease of life,\u201d cannot prove it came from work, and has therefore no case.\u00a0<\/span><\/p>\n

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\u2014our healthcare workers who are battling this terrible virus.\u00a0<\/span><\/p>\n

Occupational Illnesses in North Carolina<\/i><\/b><\/h3>\n

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.\u00a0<\/span><\/p>\n

Whether a worker who develops COVID-19 can request North Carolina workers\u2019 compensation benefits is currently an open question, but unfortunately, it does\u00a0 Eligibility may depend largely on whether the worker was an \u201cessential\u201d worker and on other factors.<\/span><\/p>\n

Occupational illness presumptions<\/i><\/b><\/h3>\n

The North Carolina statute provides in <\/span>North Carolina General Statute Section 97-53<\/span><\/a> 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.<\/span><\/p>\n

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 <\/span>presumption <\/b>(which can be rebutted) that the worker developed the occupational disease through work.<\/span><\/p>\n

One possible avenue for recovery for workers\u2019 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.\u00a0<\/span><\/p>\n

Showing that the worker contracted the disease through work<\/i><\/b><\/h3>\n

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:<\/span><\/p>\n

Item 13. \u201cAny 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 <\/span>excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\u201d<\/b><\/p>\n

This definition in my opinion is slightly more liberal than Virginia; however, because it would still term COVID-19 an \u201c<\/span>ordinary disease of life<\/b>,\u201d 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.\u00a0\u00a0<\/span><\/p>\n

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 \u2013 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\u2019s job created a significantly increased danger.<\/span><\/p>\n

The problem is, of course, that just like Virginia, as a practical matter, this places an immediate burden on the employee and most likely <\/span>guarantees<\/b> that virtually anyone bringing a COVID-19 Workers Compensation case is going to be <\/span>denied<\/b> 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.\u00a0<\/span><\/p>\n

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.\u00a0<\/span><\/p>\n

At least one well-known North Carolina Defense Firm has <\/span>already laid out its legal strategy for defending any COVID-19 Claim<\/span><\/a>, online, stating \u201cIn a pandemic, regardless of the employee\u2019s 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.\u201d 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.\u00a0<\/span><\/p>\n

How the Governor\u2019s Order affects workers\u2019 compensation claims<\/i><\/b><\/h3>\n

One of the ways experienced North Carolina occupational illness lawyers may use to help provide the worker\u2019s job included and increased risk is through the Governor\u2019s Order which identifies some jobs as \u201cessential\u201d. Any work that is essential means workers are also going to likely have more contact with people, packages, and items that may be contagious.<\/span><\/p>\n

Some of the jobs identified by Governor Roy Cooer as essential, in his <\/span>March 27, 2020 Executive Order<\/span><\/a> are:<\/span><\/p>\n