Amend the Workers' Compensation Act to Protect Virginia's Healthcare Workers.
Amend the Workers' Compensation Act to Protect Virginia's Healthcare Workers.
This petition concerns an urgent request to protect the interests and rights of our healthcare workers during the COVID-19 pandemic. Presently, healthcare workers are risking their lives on a daily basis to care for COVID-19 patients. Sadly, many them have or will become infected with COVID-19, as a direct result of their treatment and care of infected patients. It is likely that a percentage of these workers will become severely ill or die as a result of complications from this disease.
This crisis is far from over, and many more illnesses and deaths can reasonably be expected. It is because of this that we believe an urgent amendment is required to our existing workers’ compensation laws to protect our healthcare workers. In order to explain why this amendment is necessary, a summary of the current state of the law, as it pertains to workers’ compensation related occupational disease claims in Virginia is below.
Present Law Regarding Occupational Diseases
Injuries by accident, and occupational diseases, are both covered under the Virginia Workers’ Compensation Act. However, in order to be compensable, both injury by accident claims, and occupational disease claims, must arise out of the employment, and must have been sustained in the course and scope of the employment. Occupational disease claims are subject to additional evidentiary burdens of proof.
The Virginia Workers’ Compensation Act differentiates between “occupational diseases” as defined by § 65.2-400, Code of Virginia, and “ordinary diseases of life.” To be compensable, an occupational disease must arise out of, and be incurred in, the course of employment, but not be “an ordinary disease of life,” to which the general public is exposed outside of the employment. The most common occupational diseases are pneumoconiosis, which includes, but is not limited to, coal worker’s pneumoconiosis (also known as Black Lung); silicosis; byssinosis; and asbestosis. Proving that the work environment was the cause of an occupational disease or illness can be a challenge in a claim for workers’ compensation, due to the additional evidentiary burdens that exist in such cases. Pursuant to Virginia Code § 65.2-400, in order for an occupational disease to be considered compensable, the following must occur:
1. Employee must prove that, more likely than not, the disease arose out of and in the course of the employment and not from causes outside the employment.
2. The employment must be the proximate cause of the disease;
3. The disease must be caused by conditions unique to which the employee actually works, not the normal working conditions to which other workers in the same occupation are exposed.
Presently, infectious diseases are considered ordinary diseases of life pursuant to Section 65.2-401 of the Code of Virginia. However, in order to prevail on such claims, healthcare workers must presently establish the following by clear and convincing evidence:
1. That the disease exists and arose out of and in the course of employment;
2. That the disease did not result from causes outside of the employment;
3. That the infectious or contagious disease was contracted in the course of the healthcare workers’ employment in a hospital or sanitarium or laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel.
While it may appear that the above referenced section protects healthcare workers in this context, the prospect for prolonged litigation in these cases is substantial. Presently, there is no case law in Virginia concerning the treatment of pandemic viruses as occupational diseases for purposes of workers’ compensation benefits. However, by definition, pandemics are a widespread contagion. Therefore, it is likely that COVID-19 would fall within the “ordinary disease of life” classification, and would generally not be compensable, because it is a disease to which the general public is exposed to, outside of employment.
Clear and convincing is an extremely high burden of proof. Furthermore, it is unlikely that any physician will be able to opine, within a reasonable degree of medical certainty, that a healthcare workers’ COVID-19 infection “did not result from causes outside of the employment.” As a result, it is likely that many, if not all, of these claims will be litigated and that, without amendment, many of these claims will be denied, based purely upon the elevated burden of proof required by the statute. And yet, as a logical and empirical premise, we know that healthcare workers are uniquely susceptible to contracting this disease. As a result, they should be entitled to a statutory presumption.
Statutory Presumptions Should Be Extended to Healthcare Workers
The brave men and women fighting daily in the medical field to treat infected COVID-19 patients deserve the same statutory presumption as police and firefighters. They should not be subjected to the increased burden of proof regarding causation, or to prolonged and protracted litigation to secure wage loss and medical benefits they deserve under the Virginia Workers’ Compensation Act.
Statutory presumptions already exist for other occupational diseases. Sections 65.2-402 and 65.2-402.1 of the Code of Virginia create a rebuttable presumption that certain diseases causing death, total disability, or partial disability, in specified employments, are occupational diseases suffered in the line of duty, unless proven otherwise. The following diseases are covered under these statutory presumptions:
1. Respiratory diseases (volunteer or salaried firefighters and Department of Emergency Management hazardous materials officers only);
2. Hypertension or heart disease;
3. Leukemia, pancreatic, prostate, rectal, throat, ovarian or breast cancer upon showing of 12 years of continuous service and contact with a known or suspected carcinogen (as defined by the International Agency for Research on Cancer) which causes or is suspected to cause the claimed condition;
4. Hepatitis, meningococcal meningitis, tuberculosis, HIV upon the showing of a documented occupational exposure to blood or body fluids.
To be eligible to benefit from these statutory presumptions, the employee must have undergone pre-employment physical examination, if one was requested by the employer.
These classes of workers are covered by statutory presumptions:
1. Volunteer or salaried firefighters;
2. Law enforcement officers;
3. Emergency medical services workers;
4. Members of various other governmental departments and agencies as specifically listed in the Virginia Workers’ Compensation Act.
Virginia enacted the Heart and Lung presumption in 1976. It was designed to help police, firefighters, paramedics, and other emergency first responders, overcome the trouble they may have proving that their diagnosed heart disease, hypertension, lung disease, or pulmonary conditions, are related to their employment. This statute is also known as “The Police and Firefighter Heart and Lung bill.” This heart and lung presumption establishes, as a matter of law, a connection between certain occupations and some specific diseases – even if medical evidence proving the causal connection is absent. In other words, the Virginia General Assembly statutorily recognized that the nature of being a police officer, firefighter, or paramedic, puts an individual at an increased risk of certain occupational diseases, because of the inherent stressful nature of those occupations.
Immediate Action is Required
The COVID-19 Pandemic requires the immediate attention of the Virginia General Assembly to recognize the inherent danger that healthcare workers are being subjected to every day. Healthcare workers and their families should not be subjected to protracted litigation arising from an assertion that their COVID-19 infections or deaths were not related to their employment when we know that this is unlikely to be true.
To alleviate the above referenced concerns, we have drafted common sense modifications to the Virginia Workers’ Compensation Act that will create a statutory presumption in favor of healthcare workers that are infected with COVID-19. This presumption will create a presumption that healthcare related COVID-19 infections are compensable occupational diseases. As with the Heart and Lung Presumption enacted in 1976, this will relieve healthcare workers from the difficulty they may have proving that their diagnosed COVID-19 infections are related to their employment. It also serves a very real and valid public purpose by supporting and encouraging Virginia’s healthcare workers who risk their lives to keep our citizens safe during this crisis.
In addition to the statutory presumption, we have also included a proposed amendment to the permanent partial disability statute. There is substantial evidence that COVID-19 infections can result in permanent loss of lung capacity. Enumeration of COVID-19 lung damage under Section 503 of the Workers’ Compensation Act will allow healthcare workers to recover for permanent injuries to their lungs that occur as a result of infection. It is proposed that the compensation period for this damage will be 100 weeks, with each percentage of impairment equivalent to a week of benefits under the Act. Without inclusion of this amendment, these permanent injuries will not be compensable; and a prospective claimant’s recovery will be limited to temporary total, temporary partial disability, medical and death benefits.
Finally, with great dismay, it has come to our attention that the Workers’ Compensation Defense Bar is already strategizing how to defeat legitimate COVID-19 claims. Therefore, it is imperative that this issue be addressed by the Virginia General Assembly, as soon as possible, to protect our valuable and selfless healthcare workers.
Due to the rapid and evolving nature of this crisis, time is of the essence. Because amendments to the Virginia Workers Compensation Act cannot be applied retroactively, a special session should be called by the Virginia General Assembly to vote on a statutory amendment to protect Virginia’s healthcare workers. We sincerely thank you for your time and attention to this pressing matter.