The Defense Of COVID-19 Cases and Return-To-Work Issues For Municipalities

As COVID-19 workers’ compensation claim petitions begin to get filed and as employees begin to return from remote work assignments, municipalities have been asking important questions.  In this article for the GSMJIF, the author will focus on some common questions that municipal clients have been asking and advice on dealing with these issues.
 
Question: Can public entities successfully defend claim petitions for COVID-19 benefits?

Answer:  We start with the premise that COVID-19 claim petitions for permanent partial disability are not all the same.  Each case is very fact sensitive.  The author is presently defending more than a dozen COVID-19 formal claim petitions, mostly against municipalities and hospitals, and the facts vary significantly.  In some cases, the claimant cannot identify any source for the virus; in others the claimant is able to point to someone who tested positive for the virus and who was in close proximity to the claimant.  There are also cases where the claimant admits to having potential exposure to family members.
 
The Judge of Compensation will focus on three key areas in deciding on compensability: 1) Can the claimant identify a specific COVID-19 positive source at work? 2) Does the claimant have a family member or friend who is positive for coronavirus and who was in close contact with the claimant? 3) What is the timeline between exposure at home or work to the COVID positive source and the development of symptoms?
 
There are other questions that are important as well, but these are three crucial inquiries. The job of the adjuster and defense lawyer is to try to obtain answers to these and other questions.  Municipalities can prevail in workers’ compensation if the facts suggest that the COVID exposure was more likely non-work related.
 
Question:  How does the presumption of compensability affect the case outcome?

Answer:  Under the Thomas P. Canzanella Twenty First Century First Responders Protection Act passed in July 2019, there is a presumption that public safety officers who are exposed to a communicable disease resulting in illness have work-related illnesses.  Epidemics are referenced in the law as well.  A presumption means that the burden shifts to the municipality to disprove the case.  It is important to appreciate that the presumption does not apply to all municipal employees, only public safety workers.
 
It is harder to defend a claim petition with a presumption filed by a police officer, firefighter or EMT, but the cases are still potentially winnable for the municipality.  Here is why:  the municipality does not have to prove that there is no way the disease was contracted at work.  It is not a beyond a reasonable doubt standard, or even a clear and convincing evidence standard.  Rather, the standard is just over 50%.  If the municipality can show it is even slightly more likely that the illness arose from non-work causes, the claimant loses. So presumption cases can be won, but detailed discovery is crucial to success.
 
Question: What kinds of injuries are municipal employees alleging in their COVID-19 claim petitions?
 
Most of the cases that the author is defending involve municipal employees who have recovered from their illness and have returned to work.  In that sense, COVID-19 claim petitions are much like claims for back or shoulder injuries in that the employee is generally back to work but seeking compensation for loss of bodily function.  But what is the permanent loss of function in COVID-19 cases?  This is all brand new to New Jersey, and no one really knows at this point.   Several claim petitions have alleged permanent pulmonary injuries; a few have alleged permanent psychiatric injuries.  Yet none of these municipal employees has indicated that he or she has actually seen a pulmonologist or psychiatrist for treatment!  In this respect, these COVID claims are very different from those involving back, shoulder or other physical injuries because the claimants in physical injury cases have almost always had medical treatment for the condition that is referenced in the claim petition.
 
Municipalities must aggressively defend such permanency claims.  The key for the defense is to obtain prior treatment records with pulmonologists, psychiatrists and family physicians to determine if there is a preexisting condition.  To prove the case, the claimant will inevitably have to be seen by a pulmonologist if he or she is alleging lung damage.  Both counsel will arrange such an independent medical examination.  The pulmonologist will be asked whether the claimant has objective evidence of permanent lung damage related to COVID-19. 
 
Most pulmonologists determine functional loss by performing spirometry, x-rays and often a CT scan of the lungs.  Those are the objective tests that reveal whether there is truly any lung damage.  If there is lung damage, the expert next has to address causation.  Is the damage due to cigarette smoking?  Is it due to severe allergies?  What are the signs of lung pathology peculiarly caused by COVID-19?   Lung claims can be rather complicated, and it remains to be seen whether employees who have recovered and have returned to work do in fact have lasting lung damage from the coronavirus.  In the end, the permanency claims for lung damage come down to a battle of the medical experts.  
 
Question:  What if a municipality has decided to bring back employees to the office who have been working remotely?  Can the municipality require those employees to divulge whether they have been tested for the coronavirus and what the results were?
 
EEOC guidance indicates that the answer is yes.  An across-the-board policy conditioning return to work on disclosure of COVID-19 status is essential to protect employees and municipal residents who will come to the work site.
 
Question:  What are some employers doing to protect employees at work?

Answer: There are a number of steps that municipalities and other employers are taking.  Some are using thermal testing of everyone who walks into the building to make sure that the individual has no fever. It is essential for everyone’s safety to wear a mask inside the building.  Hand sanitizer should be available at multiple locations.  Social distancing and the use of floor markers is extremely important.  Having flexible schedules to reduce the number of employees in the building at the same time is also something to consider.
 
Question:  Are there concerns about municipal employees suing their employers outside workers’ compensation for not protecting them from COVID-19?
 
Answer:  This is a complicated area of law but suffice to say that in New Jersey, it is very hard for an employee to sue his or her employer for physical or mental injuries arising out of work.  The reason is that there is an exclusive remedy provision in the workers’ compensation law.  That in essence means that the only remedy for an employee with injuries arising from work is in the Division of Workers’ Compensation.
 
Only where the employee can demonstrate intentional harm on the part of the employer is such a civil law suit viable.  New Jersey courts define intentional harm very strictly with the result that seldom does anyone succeed in successfully suing his or her employer for injuries in the course of employment. When courts have allowed such law suits, there is usually a pattern of OSHA violations and often deception of OSHA by the employer.
 
Having said this, it certainly would not help the case of the municipality in defending an employer’s liability law suit if the public entity made inconsistent or half-hearted efforts to enforce its COVID-19 policy.  Whatever the policy is that the safety committee and administration has adopted, it must be consistently and uniformly enforced.  The risks are high in failing to enforce such policies in that employees, particularly older or health-compromised employees, could potentially develop complications from COVID-19 which may lead to death or severe permanent injury. 
 
Municipalities also have another reason to be extremely vigilant in enforcing COVID-19 policies.  Residents from the municipality may visit the municipal buildings, and needless to say, any non-employee may bring a claim against a municipality for negligence resulting in injury or illness, subject to Title 59 requirements.
 
Question:  What about third party liability to employees in COVID-19 circumstances?

Answer:  Suppose a police officer is dispatched to a supermarket in town and the supermarket is careless and negligently exposes the officer to coronavirus leading to severe physical injuries to the officer, can the officer both bring a workers’ compensation claim and a third party suit?  Yes, the officer will have a workers’ compensation claim and a potential civil suit. If the civil suit is successful, the municipality will have subrogation rights to recover two thirds of its workers’ compensation payments subject to the amount of the third party award.

By:  John H. Geaney, Esq.
Capehart Scatchard