Many claim petitions have been filed in the Division of Workers’ Compensation seeking awards of permanent partial and total disability, as well as dependency benefits arising from exposure to COVID-19.

The high number of COVID claim petitions reflects the fact that well over 1.2 million cases have been confirmed as COVID-positive in New Jersey, and more than 28,000 deaths have been traced to COVID exposures. 

Given the high number of claim petitions already filed and the expectation that thousands more will likely be filed, this blog focuses on some of the important considerations in defending COVID-19 claim petitions.

Is the petitioner entitled to a legal presumption of compensability?

That is the first consideration that practitioners must focus on when receiving a COVID claim petition. The "essential employees" bill was signed into law on Sept. 14, 2020, retroactive to March 9, 2020. The law creates a presumption of compensability for certain categories of employees:

• Public safety workers or first responders, including any fire, police or other emergency providers.
• Those involved in providing medical and other health care services, emergency transportation, social services and other care services, including services provided in health care facilities, residential facilities or homes.
• Those who perform functions that involve physical proximity to members of the public and are essential to the public’s health, safety and welfare, including transportation services, hotel and other residential services, financial services and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel and supplies for conducting essential business and work at home.
• Anyone deemed an essential employee by the public authority declaring the state of emergency.

What does the presumption mean? Does it mean that the employer automatically loses? No, it means that the burden of proof does not rest on the essential employee to prove that he or she contracted COVID from work. It is presumed to be work-related. 

The burden shifts to the employer to disprove the case. The statute provides that the presumption is “rebuttable.” An employer could rebut the presumption, for example, if the judge of compensation were to find that the employee more likely contracted the virus from his or her spouse or children or from travel to another state or country rather than from work.

Has the COVID presumption ended?

Most defense practitioners think the answer is affirmative on this question. The reason is that Gov. Phil Murphy declared the end of the public health emergency on July 3, 2021.  The rationale for the essential employee law rested on the public health emergency and refers to it in the law itself.

While the governor never specifically said on July 3, 2021, that the COVID presumption in workers’ compensation no longer prevailed, many practitioners reason that the presumption must have ended because the law was in response to the existence of a public health emergency.

If defense counselors are correct that the presumption ended on July 3, 2021, what are the implications for workers’ compensation claim petitions? Right now, the end of the presumption does not mean all that much because many claim COVID petitions are still being filed.

Without a presumption, the claimant has to prove more likely than not that he or she contracted the virus at work. That is just like all other occupational disease claims in New Jersey where the burden rests on the petitioner to prove his or her case on compensability.

But over the long term, as COVID becomes more community-based and more prevalent in our population, it will be harder for petitioners to prove exposure at work. Some scientists predict that eventually, most Americans will contract some version of COVID-19, and it will be more like the flu, for which employers almost never get claim petitions.

Why are special interrogatories so important in COVID-19 petitions?

In all occupational claims, such as COVID claim petitions, both parties can propound interrogatories on the other side to answer. Unfortunately, New Jersey uses form interrogatories in occupational disease claims. These are mostly outdated and focus heavily on exposure to asbestos or industrial pollutants. There are no questions about family exposure, travel exposure or community exposure in the approved form interrogatories. There are no questions about quarantine or mask use. 

Counsel on both sides should prepare relevant interrogatories customized to address COVID claim petitions. Otherwise, answers to the form interrogatories will come back with nothing but objections such as “this interrogatory is irrelevant.” If there is an objection to the use of special interrogatories, counsel should file a motion for permission to serve special interrogatories with the judge of compensation. 

From the defense side, interrogatories must address exposure potential at home with relatives or friends, out-of-state vacations or travel, holiday gatherings, dates of positive testing, quarantine periods and current symptoms and treatment. 

The timing of COVID diagnosis is always important to focus on. A little less than one year ago, just after Thanksgiving 2020, there was a massive surge in positive COVID testing in every state. The reason was that people were gathering in homes without necessarily taking precautions that are generally required in their workplaces.  

In cases where there is no presumption of compensability, interrogatories are still very important. Where there is no presumption, the burden rests on the employee to prove that he or she more likely than not contracted COVID-19 at work. The proof may focus on specific individuals who tested positive and who were in close contact with the petitioner. The employer will have to contact such individuals or check personnel information when such claims are made. All the same investigation and discovery is done by the defense in a non-presumption case as in a presumption case.

Who has the burden of proof on permanent partial disability?

The claimant always has the burden of proof on impairment and disability. The essential employee law did not change that. One does not automatically get an award of permanent partial disability for having work-related COVID. There must also be proof of an impairment that substantially limits one’s activities of daily living or materially impacts one’s working ability. 

COVID cases are being settled in the division, but I am not aware of any full trials yet on COVID claims. 

Is there any other law that may provide a presumption relevant to COVID-19 cases?

The Thomas P. Canzanella Law passed in 2019 states that public safety officers have a presumption of compensability in a variety of circumstances, including exposure to communicable diseases. The statute references exposures during epidemics as well as airborne exposures. This presumption is also rebuttable. 

What kinds of allegations are contained in COVID-19 claim petitions?

I have scores of COVID claim petitions, and the variety of physical and psychological injuries is noteworthy. Some of the claim petitions involve only very short absences from work with no treatment at all from any medical provider. Those are the minor claim petitions. 

Others involve patients who continue to have health problems months after recovering from the initial bout of COVID, namely “long haulers.” Those can be high-exposure claims. In addition, most large defense firms are defending COVID dependency cases in the division. 

Although it is difficult to generalize about the types of allegations, the most common appears to be respiratory because the virus often attacks the lungs first. There are many COVID claim petitions where the claimant was diagnosed with lung damage or pneumonia.

Another common allegation is anosmia and ageusia (loss of smell and taste). There are allegations of cardiac injuries, visual disturbance, as well as neurological injuries, such as severe migraines and brain fog. There are also claims for causally related anxiety and depression. Clearly, every case is unique, which underscores the need to do detailed investigation and discovery.

Which medical experts are being retained by COVID respondents?

If you think about most workers’ compensation claims, orthopedic experts are mostly used to assess permanency. That is not the case with COVID claim petitions. The experts most suited to assess causally related permanency in COVID cases, in my opinion, are physicians with a background in internal medicine, occupational medicine or physiatry. 

There are also cases where both sides need to retain an ENT, ophthalmologist, psychiatrist or psychologist. 

This is a major challenge in COVID claims for both sides precisely because both sides are used to retaining orthopedic doctors who are familiar with workers’ compensation and who understand the legal standards. Most of the COVID claim petitions in the division have not gotten to the permanency stage, and it will be interesting to see which experts emerge in this area.

Why is past medical discovery so paramount in COVID claims?

More is known about COVID at the present time than was known in March 2020, but much more remains to be discovered. No one really knows what the long-term effects of COVID are.

Practitioners often find in defending COVID claim petitions that someone with prior medical issues often files a claim petition for a worsening of a preexisting condition. The COVID virus seems to frequently attack preexisting medical conditions.

Employers, adjusters and practitioners have to obtain primary care physician records to assess the prior medical diagnosis. PCP records may have very important information about prior conditions and also about initial conversations regarding the source of the COVID exposure. 

Depending on the allegations, it may be necessary to obtain prior allergy records, prior records of treatment for diabetes, prior treatment with pain doctors for migraines, prior psychological treatment, prior cardiology records and prior ophthalmological records, among others. This information may be directly relevant to causation. 

Is the worker being treated now for a long-standing condition? Is it a prior condition that has been worsened by COVID? In the latter example, the employer may be entitled to a credit at the time of the permanency award.

In short, medical discovery remains crucial to explore in formal and in informal discovery in order to properly defend COVID claim petitions. Collaboration among carriers, employers, adjusters and nurses will be needed to identify appropriate experts to perform permanency examinations around the state.

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.