Does Pennsylvania Workers’ Compensation Cover Coronavirus (Covid19)?

Date: April 21, 2020
Posted In: In The Community

Coronavirus (COVID-19) in the Course and Scope of Pennsylvania Employment

As a general principle, an employee disabled because of a disease process, caused by workplace exposure to either toxic or other injurious agents, will be entitled to workers’ compensation benefits the same as a worker injured by a traumatic injury.

The Pennsylvania Workers’ Compensation Act defines the term “injury” to include both disease and infection which has resulted from, or is aggravated by, an injury and/or certain specified-identified “occupational diseases”.

Occupation diseases are those diseases that historically have been shown to be related to work exposures.  These include anthrax, from handling animal hides, coal worker’s pneumoconiosis, otherwise known as black lung disease, and others such as silicosis, from working in steel mills, just to name a few.

Through case law, as opposed to the specific statute meanwhile, there has been established even a non-listed disease process which can be covered if, in fact, one can show a cause and effect from the exposure at the particular employer’s worksite or in furtherance of the employer’s business.

While the Pennsylvania Workers’ Compensation Act lists specifically enumerated diseases, diseases that are not specifically listed may benefit from what is referred to as a “rebuttable presumption” requiring only a proof of exposure in the industry where the incidence of the disease is, in fact, substantially higher than in the general population.

In effect, at this time, one could argue, convincingly, that various health care workers, first responders and food service, such as grocery store workers, are being affected with higher incidences of contracting the disease than the general population.

An attorney representing a worker that has suffered an elongated period of disability, or the family of the worker who has died because of the exposure to the disease, can pursue a standard worker’s compensation claim wherein the burden of proof, to establish a causal relationship of the disease to the workplace, could require a medical doctor to testify that, within a reasonable degree of medical certainty, there was a causal relationship between the individuals contracting the disease and the workplace exposure.  This is different than the “burden of proof” under the Occupational Disease Act wherein there may be a rebuttable presumption that there is a relationship between the disease and the work exposure.

These types of cases will not be easy to prevail on.  Lawyers may well be reluctant to take them in the case where there is a relatively speedy recovery from the disease and, on a cost benefit analysis, the cases may simply not be worth pursuing.

Cases which do result in death, though, will be closely scrutinized and may well be successfully pursued if appropriately handled.  The cases will be vigorously defended though because an argument will be made that it is impossible to attribute the infection to work exposure because the victim of the virus may have been exposed in a non-work setting such as by a family member, etc.

Another element to be considered, unfortunately, is the price that would be incurred by the workers’ compensation carriers if there is a large amount of successfully pursued claims.  The premiums that employers would have paid, in the past, would not have contemplated the potential risk involved and those premiums in the future may well be substantially increased.  While this is not a factor that should be taken into consideration by the Administrative Judges that would initially decide the compensability of these cases, it would be an unavoidable factor in many situations in determining compensability.

In conclusion, there is strong precedent in Pennsylvania law that if an employee is able to prove the specific source of the infection, and that source was a workplace exposure, then, in fact, the case would be compensable and the individual would be entitled to lost time benefits and medical coverage as a result of the disease.

If a fatality is involved, the decedent’s spouse and/or family and/or parents may be entitled to benefits as well on potentially a lifetime basis.

Cal Leventhal
Cal is a graduate of the University of Miami (magna Cum Laude) and attended Loyola and Notre Dame law schools graduating in 1976. He is admitted to the Bars of the Supreme Court of Pennsylvania and both state and federal trial and appellate courts situated in Pennsylvania.