Will Coronavirus Cases be Compensable Under the Pennsylvania Workers’ Compensation Act and if so, How?

By Weber Gallagher

The Coronavirus (officially Covid-19) is coming, according to the United States Centers for Disease Control, and the United States workforce faces this risk along with employees worldwide. If Pennsylvania employees become infected, become exposed without being infected, or develop psychological consequences from either situation, Pennsylvania employers could face wage loss claims, medical claims, testing claims, or claims for psychiatric services or disability. The question is, are any or all of these claims considered compensable under the Pennsylvania Workers’ Compensation or Occupational Disease Acts? To date, and understandably, there have been no specific rulings on the issue. Therefore insurance carriers, third party administrators and risk managers must rely upon precedent, similar cases and relevant fact patterns to develop case management strategies, to address the issues as they arise, and to develop reasonable prevention strategies.

First, we will start with the occupational disease provisions of the Pennsylvania Workers’ Compensation Act, as amended. In addition to “injuries,” the Pennsylvania Workers’ Compensation Act provides compensation for “diseases” that are occupational in nature. The Act enumerates specific diseases that have been associated with specific workplace exposures such as Black Lung, Asbestosis and Hepatitis. The Act provides a “rebuttable presumption,” meaning that workplace exposure caused the enumerated disease, thereby eliminating workplace exposure as an element of proof to establish compensability. However, diseases not specifically enumerated may also benefit from the “rebuttable presumption” under the Act’s catchall provision requiring only “proof of exposure” in an industry where the incidence of the disease is substantially higher than the general population. Keep in mind that unless the disease is enumerated or catchall allowing the rebuttable presumption, it is very hard to prove that generally communicable diseases come from a workplace exposure. This is why we do not typically see seasonal influenza workplace “injuries.”

Covid-19 is not an enumerated disease under the Act. Also, because Covid-19 is so new, arguably, it will be nearly impossible to establish that the incidence of Covid-19 is substantially higher in any particular industry than in the general population. But of course, with effective lawyering and a sympathetic Judge, one cannot say that it is impossible to establish this legal principle. Nonetheless, we believe that based on what we know today, this difficulty leaves an infected employee with the “standard” burden of proof to establish a causal relationship of the disease to a workplace exposure within a reasonable degree of medical certainty, as opposed to a rebuttable presumption of a causal relationship.

However, even with generalized diseases such as Covid-19, what remains is still a complicated burden of proof. It will often be impossible to pinpoint where and when the infection was acquired. A co-worker may have transmitted the virus on the job, but it could have also been transmitted by a family member or another person in a public, non-work setting. If the non-work transmission possibilities cannot be eliminated, in fairness, the causal relationship burden generally will not be met.