Many readers of this blog have inquired recently about the
potential impact of the novel coronavirus on workers’ compensation claims. Should a surge of serious coronavirus
illnesses occur among New Jersey workers, would such claims be considered
compensable under the law?
The answer to this question depends on whether one is or is
not a public safety worker. Most New Jersey workers would not meet the test of
a public safety worker. For non-public
safety workers, the likelihood of successfully maintaining an occupational
disease claim under N.J.S.A. 34:15-31 would be very low. The reason is that a claimant must show that
the medical condition, for instance pneumonia, is more likely than not produced
by causes which are characteristic of or peculiar to one’s occupation in a
material degree. This test is hard to
meet because it is next to impossible to identify the source of the virus. Many people who do not even know they have Covid-19
and are not yet symptomatic may be infecting large numbers of individuals in
all sorts of locations. For an infected
employee, it would be hard to know whether one was exposed to the virus at work,
in a store or some other places of human contact. It would almost always be pure speculation
where the exposure occurred.
Public safety workers, on the other hand, will have a strong
argument for compensability. The
legislative intent of the Twenty First Century First Responders Protection Act
was to protect public safety workers.
That law became effective in New Jersey on July 8, 2019. This landmark legislation observes that “public
safety workers are required by necessity to take great personal risks of
serious injury, illness and death in their duties to protect the people of New
Jersey from the dangers of catastrophic emergencies, including, but in no way
limited to, terrorist attacks and epidemics.” Unfortunately, the coronavirus has the
potential to reach epidemic levels in the USA just as the virus has in China
and other nations.
N.J.S.A. 34:15-31.4 defines a public safety worker broadly
to include not just fire and police officers, but also “a Community Emergency
Response Team approved by the New Jersey Office of Emergency Management, or a
correctional facility, or a basic or advanced medical technician of a first aid
or rescue squad, or any other nurse, basic or advanced medical technician
responding to a catastrophic incident and directly involved and in contact with
the public during such an incident. . .” There are likely to be thousands of public
safety workers in New Jersey who will be part of state efforts to contain any
potential rapid spread of this virus.
N.J.S.A. 34:15-31.5 provides a presumption of compensability
in subsection a. if a public safety worker can demonstrate exposure at work to
“the excretions, secretions, blood or
other bodily fluids of one or more other individuals or is otherwise subjected
to a potential exposure, by the other individual or individuals, including airborne exposure, to a
serious communicable disease, or is otherwise determined to be infected with or
at significant risk of contracting the serious communicable disease. . . “ Readers
should focus on the language “or is
otherwise subjected to a potential exposure” in the preceding
sentence. The language does not say definite or proven exposure but
rather “potential” exposure. Public
safety workers, by the nature of their work, are highly likely to have such
potential exposures to those who are infected with coronavirus.
These new provisions of New Jersey’s occupational disease
law demonstrate that public safety workers who may contract coronavirus will
have a strong case for compensability given the presumption provided for in the
statute. Having a presumption of
compensability is powerful. When there
is presumption of compensability, the burden of proof shifts to the employer to
show that the exposure is not work related.
Just as I said earlier that it is hard for a non-public safety worker to
prove exposure, so too it would be very hard for an employer to prove that a
public safety worker more likely than not was infected through non-work exposures. The employer will have no idea when the
disease was contracted, and it would be speculation to say that the exposure
was not work related. So the presumption
in a public safety worker scenario will almost certainly lead to compensable
awards.
The statute drives this point home: “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”
The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States. If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment. While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms. Sadly, a small percentage of deaths is related to the coronavirus. It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.
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