The concept of legal presumptions in workers’ compensation is not new in New Jersey. 

John H. Geaney

The first presumption legislation in New Jersey was passed in 1964 concerning volunteer firefighters who contract respiratory disease in certain circumstances. The second presumption legislation was passed in 1988 regarding firefighters with cardiovascular or cerebrovascular injuries or death in responding to a law enforcement, public safety or medical emergency. 

More recently, the 2019 Thomas P. Canzanella 21st Century First Responders Protection Act and the 2020 Essential Employees Law have generated a great deal of discussion among workers’ compensation professionals, carriers and employers on what legal presumptions in workers’ compensation really mean.

In virtually all workers’ compensation claims (excepting presumption claims), the petitioner has the burden of proof on the issue of compensability as well as on the issue permanency, but in cases involving a legal presumption, the burden shifts to the employer to disprove compensability. 

In a COVID claim petition involving a presumption, the petitioner must prove that he or she meets the definition of an essential employee and that he or she contracted COVID. At that point, the respondent must offer its proof and attempt to rebut the claim by showing more likely than not that the virus was not contracted at work. Hence, the notion that the presumption is “rebuttable.” 

It is helpful to study the precise language of the New Jersey Essential Employees Law with respect to rebuttable presumptions: The law says: 

This prima facie presumption may be rebutted by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.

The last six words simply mean that employees will not receive a presumption for exposure to COVID while working at home.

Some state COVID-19 presumption laws spell out the proofs that legislatively rebut the COVID presumption. For example, the Illinois COVID-19 Essential Employees Law provides specific examples of rebuttal evidence:

• The employee was working from his or her home, on leave from his or her employment or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease or period of incapacity resulting from exposure to COVID-19.
• The employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability, industry-specific sanitation, social distancing and health and safety practices by the Centers of Disease Control and Prevention or Illinois Department of Public Health.
• The employee was exposed to COVID-19 by an alternate source.

New Jersey’s COVID presumption law does not address what sort of evidence may rebut a COVID-19 presumption claim, unlike the Illinois law cited directly above.

Professor Michael Duff from the University of Wyoming College of Law provides an interesting state-by-state survey on the differences in COVID presumption statutes in an essay that is part of “Workers’ Compensation Emerging Issues Analysis.” He points out that the problem with presumption language in states like New Jersey is that judges of compensation have no legislative guidance on types of evidence that statutorily rebut a presumption.

Among the possible kinds of evidence that may rebut a New Jersey claim for COVID-19 are the following:

• The gap between petitioner’s last day of work and the contraction of COVID is too great according to current medical guidelines.
• The employee engaged in certain nonwork activities that provided a much greater risk of COVID-19, such as travel to other states with high rates of COVID exposure or attendance at large gatherings where a COVID-19 breakout occurred.
• The employee was around family members or friends who were diagnosed with COVID before the employee was diagnosed with COVID.
• The employee had a second job with more likely exposure to COVID-19.
• The employee had small children whose schools closed due to COVID-19 outbreaks and whose children became symptomatic with possible COVID.

These are just some examples of evidence that may, in a given case, rebut the legal presumption. 

One important question that Duff raises is this: What happens to the presumption if the employer does offer strong rebuttal evidence? Does the presumption then disappear, with the result that the burden then shifts back to the employee to prove how he or she was exposed at work?

The New Jersey statute is silent on this question. The practical answer is that any good attorney who has evidence demonstrating a work source of COVID-19 would then offer such proof in the face of strong rebuttal evidence. 

Trials will eventually occur in the Division of Workers’ Compensation in COVID-19 cases, given that thousands of claim petitions have already been filed. Judges will deal with the employers' proof on rebuttal of presumptions on a case-by-case basis. 

One difference between a COVID-19 case and other workers’ compensation cases has to do with medical records. In the ordinary workers’ compensation case, the focus is on only the claimant’s medical condition. But in a COVID-19 case, in order to disprove a claim by the more-likely-than-not standard, the employer will often have to argue that someone in close contact with the petitioner was COVID-19-positive.

That medical evidence may be pivotal. It may prove challenging in some cases to prove that a nonparty to the case to whom the petitioner may have been exposed was in fact COVID-19-positive.    

No discussion on COVID-19 litigation should end without mention of one crucial point: Even if the injured worker is an essential employee and compensability is found in favor of the employee, the burden of proof on permanent partial disability always rests on the employee. This means all the same proofs apply as in other compensation claims, namely proof by objective medical evidence of a restriction in the body, as well as a significant impact on the employee’s work or nonwork life activities.

As COVID-19 continues to spread in the United States, one of the observations physicians and scientists have made is that many Americans have contracted COVID a second or even a third time. How does second nonwork COVID impact litigation and negotiation?

Well, consider a case involving a worker who injures his back lifting at work but then has a subsequent nonwork back injury before being examined by an expert. That second accident almost always lowers the value of the claim, and in some cases may erode all the value depending on the severity of the second accident. 

What about someone who has COVID-19 arising from work and then contracts COVID a second time from a home exposure prior to medical evaluation? How does a claimant with second COVID from a home exposure separate the current complaints from the impact of the earlier work COVID?

This phenomenon is already happening in COVID cases in New Jersey and in other states. Employers must always ask for all treatment records up to the present in any COVID litigation for this very reason.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.