Legal & medical strategies from renowned expert Dr. John Koehler & Rich Lenkov
- Diagnosis: COVID-19 is characterized by symptoms including a runny nose, sore throat, cough and fever. Obviously, those symptoms can be associated with other conditions, like the common cold or influenza. The first burden that a claimant has to meet is that the condition actually is COVID-19, through a certified test.
- Accident: a claimant must prove that their COVID-19 arose out of and in the course of their employment. A claimant must show that work exposed them to a greater risk than that faced by the general public. Since the very essence of COVID-19 is that it is easily transmittable, it will be very difficult for a claimant to prove that they contracted the virus at work, as opposed to out in the public. Of course, employees in high risk occupations like nursing home workers, health care professionals, cruise ship workers, etc. would likely have an easier time meeting this burden.
- Causation: while accident is a legal question, causation is a medical. To meet this burden, a claimant would need a board-certified physician, likely an immunologist, opine that their current condition was caused by work-related COVID-19. Since we know that claimants with pre-existing respiratory and lung issues are more susceptible to this condition, it is important with these claims to obtain prior medical records.
- Permanency: even if a claimant meets all of the above burdens, the big question is whether there is any permanent impairment from COVID-19. We know that most people who are diagnosed experience the symptoms mentioned above: runny nose, sore throat, cough, fever and difficulty breathing, in severe cases. Those conditions usually clear up relatively quickly and obviously carry no permanent partial disability.
The harder cases, obviously, will be those where COVID-19 leads to death, which is more common
among older people and those with medical conditions like asthma, diabetes and/or heart
disease. If a claimant dies from work-related COVID-19, eligible survivors receive 2/3 of the
employee’s weekly wage and money for burial expenses.
Practice Tip: We will inevitably see a multitude of claims resulting from this global pandemic. While this is a brand-new virus that we are learning more about daily, apply the same aggressive, proactive approach you would to all claims; remember that it is always a claimant’s burden to prove every element of their cause of action.