A presumption in favor of granting COVID-19 workers’ compensation benefits?

As of August 28, 2020, Honolulu firefighters are asking the Mayor of that city to make it easier for them to obtain workers’ compensation benefits related to COVID-19.   Specifically, the firefighters are hoping that the Mayor will enact a legal presumption in their favor.  This would mean that if a firefighter gets sick with COVID-19, it would be presumed that they got it while on the job, and therefore are eligible for workers’ comp benefits.  The local government or its insurance company would then have the burden of overcoming that presumption by showing that, in fact, the firefighter contracted COVID-19 from somewhere other than work.  This would create a different legal standard than the usual one in workers’ compensation cases, where the burden is on the employee to establish that his/her injury or illness occurred on the job.  If the change goes into effect, it would be significantly easier for firefighters to obtain workers’ comp benefits.  Honolulu is not the only jurisdiction to consider this kind of legislation; a few months ago I shared on LinkedIn that Governor Ned Lamont of Connecticut had issued an executive order also creating a presumption in favor of workers who contacted COVID 19 during the early part of the pandemic. As of August 28, 2020, Honolulu firefighters are asking the Mayor of that city to make it easier for them to obtain workers’ compensation benefits related to COVID-19.   Specifically, the firefighters are hoping that the Mayor will enact a legal presumption in their favor.  This would mean that if a firefighter gets sick with COVID-19, it would be presumed that they got it while on the job, and therefore are eligible for workers’ comp benefits.  The local government or its insurance company would then have the burden of overcoming that presumption by showing that, in fact, the firefighter contracted COVID-19 from somewhere other than work.  This would create a different legal standard than the usual one in workers’ compensation cases, where the burden is on the employee to establish that his/her injury or illness occurred on the job.  If the change goes into effect, it would be significantly easier for firefighters to obtain workers’ comp benefits.  Honolulu is not the only jurisdiction to consider this kind of legislation; a few months ago I shared on LinkedIn that Governor Ned Lamont of Connecticut had issued an executive order also creating a presumption in favor of workers who contacted COVID 19 during the early part of the pandemic.

This is a sensible policy, and I believe the Maryland legislature should follow suit.  For months, frontline workers such as doctors, nurses, nursing home staff, police officers, and firefighters have had to venture out and do their jobs in the midst of the pandemic.  For those who contracted COVID-19, many of them would have almost certainly gotten sick while at work and being in close proximity to patients or co-workers who have the disease.  Our government should pave the way for those individuals to more easily obtain workers’ compensation benefits to help cover the costs of their treatment and to ensure that they are not forced to use sick or vacation time to cover their days missed.  The presumption would be rebuttable, meaning that the worker would not be guaranteed benefits; the employer/insurer would still have the chance to show that the employee contracted COVID-19 outside of work.  The presumption could also be limited to only encompass certain classes of essential employees, and it may also be limited to a specific period of time, perhaps the first few months of the pandemic.  These limitations would create a fair balance on the one hand between the right of employees to be compensated and the rights of employers/insurers who do not have a tremendous new front of liability thrust upon them due to unprecedented circumstances.

The concept of a legal presumption is not unheard of in Maryland.  Certain emergency personnel such as firefighters and police officers already benefit from presumptions in their favor.  MD. Code Labor & Employment Section 9-503 establishes that certain emergency personnel who develop heart disease, hypertension, or lung disease are entitled to a presumption in their favor that they developed those conditions as work-related occupational diseases.  There are also already presumptions in place for certain individuals who contract some types of cancer and Lyme disease.  This goes to show that our Legislature is already familiar with the concept of making it easier for certain individuals, who put their lives and bodies on the line, to obtain workers’ compensation benefits.

Regarding the current pandemic, it makes sense to again create a presumption in favor of benefits for frontline employees, in light of the courage and dedication that they displayed by showing up to work during the pandemic. Regarding the current pandemic, it makes sense to again create a presumption in favor of benefits for frontline employees, in light of the courage and dedication that they displayed by showing up to work during the pandemic.

For all of your workers’ compensation questions, please contact our experienced attorneys at 410-787-0022.

1. https://www.hawaiinewsnow.com/2020/08/28/firefighters-ask-exception-workers-compensation-policy-during-pandemic/
2. https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2020/07-2020/Governor-Lamont-Signs-Executive-Order-Strengthening-Workers-Compensation-Claims

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Suing Employer for Work-related COVID

If an employee contracted COVID-19 while on the job and passed away, can the family sue the employer for wrongful death?

As the country continues to reel from the coronavirus pandemic, new legal issues continue to arise.  There has been talk in the media of people bringing wrongful death lawsuits against companies, alleging that the companies are responsible for the deaths of loved ones who contracted COVID-19 while at work.  Is that a viable legal option in Maryland?[1]

The answer would appear to be: almost certainly not.  Maryland law is quite clear that if someone gets ill and passes away while on the job, the person’s beneficiaries are limited to seeking benefits via the workers’ compensation system, as opposed to being able to bring a civil suit (such as a wrongful death action) for monetary damages.

The Maryland Code of Labor and Employment Section 9-509 is entitled “Exclusivity of Compensation.”  Subsection (b) of that statute states: “Except as otherwise provided in this title, the compensation provided under [the Workers’ Compensation title] to a covered employee or the dependents of a covered employee is in place of any right of action against any person.”  In other words, if your loved one passes away as a result of a work-related illness, you are limited to seeking recovery by way of workers’ compensation benefits.  Death benefits in a workers’ compensation situation can be quite substantial, but may be more limited than what someone could seek by way of a civil lawsuit.

The statute does provide for an exception.  Section (d) states:

Exception — Deliberate act. — If a covered employee is injured or killed as the result of the deliberate intent of the employer to injure or kill the covered employee, the covered employee or, in the case of death, a surviving spouse, child, or dependent of the covered employee may:

(1)  bring a claim for compensation under this title; or
(2)  bring an action for damages against the employer.

The exception provides an option for bringing a civil lawsuit if the employer committed a “deliberate act.”  This is a very high bar to overcome, however.  Maryland’s highest court held that an employer has committed a “deliberate act” only when the employer “decided to injure [the employee], that the employer committed some act to accomplish this goal, and that as a direct result of the employer’s action [the employee] was injured.”  Johnson v. Mountaire Farms of Delmarva, Inc., 305 Md. 246, 258 (1986).  That case makes clear that even if the employer is reckless or willfully negligent by placing its employees in a dangerous position, such action is not sufficient to allow the employee to bring a civil suit for damages.  The employee has to show that the employer intended or desired for the employee to get sick or injured.

Turning to the current pandemic, many people in Maryland may feel that their employers acted wrongly by forcing them to come into work during the pandemic, or by not providing sufficient PPE.  Those people may be justified in their feelings, and obviously if someone got sick at work from COVID-19 and passed away, that is a tragedy for which the family should be entitled to some benefits.  However, the law in Maryland makes clear that the family will likely be limited to seeking those benefits by way of the workers’ compensation system, as opposed to by way of a civil lawsuit (unless there is some evidence that the employer knowingly desired for the employee to contract the disease and therefore placed him or her in harm’s way).

Our attorneys are happy to answer your questions regarding work-related COVID 19, or any other question relating to workers’ compensation in Maryland.   Please call us at 410 787 0022 to set up a free consultation.

[1] This article deals only with the situation where an employee contracted COVID-19 while at work and passed away.  There may be other situations in which someone contracted COVID-19 and passed away, and where a different legal analysis would apply. 

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Permanent Partial Disability and COVID-19 Part II

In Part I of this blog post, I gave a basic overview of permanent partial disability (PPD) benefits.  So what kind of permanent partial disability benefits might someone who gets infected with COVID-19 at work expect to receive?  Permanent partial disability benefits usually involve lasting physical effects.  I found at least one news article describing COVID-19 as having possible permanent respiratory effects (such as permanent lung scarring or fibrosis), as well as possible lasting cognitive effects, although there is not yet enough data to reach definite conclusions.[1]  There is also a discussion of COVID-19 causing issues with blood clotting, stroke, and heart problems.[2]

Let’s say that an injured worker (Izzy) suffers lung fibrosis as a result of work-related COVID 19.  The lungs are considered part of the “body” for PPD purposes.  An injury to the body allows someone to receive a maximum of up to 500 weeks of PPD payments.  Izzy goes to one independent medical evaluation and that doctor says he’s suffered a 20% permanent impairment of his respiratory function as a result of COVID 19.  The insurance company sends Izzy to their independent medical evaluator, and that doctor rates him as 10% permanently injured.

At this point, Izzy would likely go to a hearing[3] and a Workers’ Compensation Commissioner would review both physician reports as well as listen to Izzy testify about what symptoms he’s still having, such as difficulty breathing or pain in his chest.  At that point, the Commissioner would assign a percentage of permanent impairment to Izzy’s lungs.  That number is very important.  In the Workers’ Compensation system, we speak of different “tiers” of payments.  If someone is awarded less than 75 weeks of payments, they receive payment at the Tier one rate, which is 1/3 of their average weekly wage up to a statutory maximum.  If the person receives 75 weeks or more of payments, they receive the higher Tier two payment rate, which equals 2/3 of their average weekly wage, up to a statutory maximum.  The difference between receiving a Tier one rating vs. a Tier two rating means thousands of dollars for an injured worker.

In Izzy’s case, he wants to get an award of at least 15% from the Commissioner, because of 15% of a maximum possible of 500 weeks = 75 weeks.  A 15% rating or above will get him the Tier two rate.  Any rating lower than 15% will get him the Tier one rating.  Much rides on the ratings of the different doctors as well as how Izzy communicates his symptoms to the Commissioner.

Physical effects are not the only ones that may be relevant.  Workers’ Compensation in Maryland also at times allows someone to be compensated for psychological harm incurred as a result of an incident at work.

I think it’s important to keep in mind that there are two classes of individuals who may claim psychological harm as a result of COVID-19: those who actually become infected with the disease, and those who have to work in the incredibly difficult circumstances of healthcare clinics with high rates of the disease.

As to the first group of individuals, those who actually become infected with COVID-19: the Courts in Maryland do recognize psychological harm as something that can arise out an “accidental personal injury” that one suffers at work.  Belcher v. T. Rowe Price, 329 Md. 709 (1993) is a case in which Maryland’s highest courts examined the concept of psychological harm in the workers’ compensation cases.  In that case, the claimant was at work when a huge construction beam came crashing through the roof.  Although she was not physically harmed, she suffered psychological detriments.  This is what the Courts deem a “mental-mental” situation: a mental stimulus (the fear of the crashing beam) induces “mental” suffering.  The Court held that claimants could seek Workers’ Compensation benefits for psychological injuries, as long as the mental harms were induced by a “sudden or violent” event, and that the psychological harms were capable of objective determination.

COVID-19 is a bit different, in that the anxiety an infected person suffers is not a “mental-mental” event, but rather a “physical-mental” event: a “physical” cause (infection of one’s body with a disease” provokes possible “mental” effects (anxiety, depression, etc.)  It remains to be seen whether the Commission and Courts will apply the same standard of requiring a “sudden and violent” accident to induce the psychological harms, or whether perhaps the law will be more lenient in the case of COVID-19, where definite physical harm is suffered.

The second class of workers who may be entitled to benefits are healthcare workers who perhaps were not infected themselves, but had to show up to work day in and day out during the pandemic and deal with the incredibly difficult scenario of treating COVID 19 patients and perhaps watching many of those patients lose their lives in a very painful way.  The Court of Appeals has recognized that post-traumatic stress disorder (PTSD) can be a compensable “occupational disease” for workers’ compensation purposes in certain situations.  The key case is Means v. Baltimore County, 344 Md. 661 (1997).  That case involved a paramedic who through the course of her work was exposed to several “gruesome” accident scenes and eventually developed PTSD as a result.  The Court held that PTSD may be a compensable occupational disease if: 1) the employment is of such a nature that the risk of PTSD is a hazard of that particular employment, and 2) the PTSD is contracted as the result of an in the course of employment and causes the employee to become incapacitated.

There’s certainly an argument to be made that healthcare workers who develop PTSD based on what they experienced through the pandemic may have a valid occupational disease claim.  One hurdle is that, traditionally, the occupational disease must develop in a “slow and insidious” manner.  The pandemic has only lasted a few months so far, and it’s unclear how long it will go on for.  It may not last for a long enough time to allow for “slow and insidious” development of PTSD, although that may be an issue that needs to be litigated.

Please call us at 410 787 0022 to discuss work-related COVID-19 or any other question you may have about workers’ compensation in Maryland.

• 1. George Citroner. What We Know About The Long-Term Effects of Covid-19. Healthline. April 21, 2020. https://www.healthline.com/health-news/what-we-know-about-the-long-term-effects-of-covid-19
• 2. Mark Terry. Unexpected Cause of Death in Younger Covid-19 Patients is Related to Blood Clotting. Biospace. April 28, 2020. https://www.biospace.com/article/covid-19-increases-risk-of-heart-attacks-and-stroke/
• 3. However, it’s also possible that his case would be settled without having to go to a hearing

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Permanent Partial Disability (PPD) Benefits and COVID-19, Part I: An Introduction to PPD

When someone in Maryland is injured on the job, the Workers’ Compensation statute allows that person to receive certain benefits.  Those benefits include Temporary Total Disability (TTD) payments, which provide for two-thirds of the person’s average weekly wage during the time the person is totally unable to work due to the work accident.  Another class of benefits is the payment of all causally-related medical costs by the employer or workers’ compensation insurer.

When someone in Maryland is injured on the job, the Workers’ Compensation statute allows that person to receive certain benefits.  Those benefits include Temporary Total Disability (TTD) payments, which provide for two-thirds of the person’s average weekly wage during the time the person is totally unable to work due to the work accident.  Another class of benefits is the payment of all causally-related medical costs by the employer or workers’ compensation insurer. The third class of benefits is what is referred to as Permanent Partial Disability (PPD) benefits.  Oftentimes when someone is hurt, they will go through a course of treatment, which could include surgery, therapy, medications, or whatever other medical treatments are necessary to restore them to good health.  However, many times, even after the person has gone through treatment and achieved what is known as Maximum Medical Improvement (MMI), the person will still experience some degree of lingering symptoms or issues as a result of the work accident.  PPD benefits are designed to compensate for those.

A typical example would be someone who breaks a bone in their hand while at work.  Let’s say that person undergoes surgery and the course of occupational therapy which allows them to get back to work after six months.  However, the person still experiences ongoing numbness, tingling, weakness, and/or loss of range of motion in the affected hand.  Most likely the person will always have some degree of lasting effects due to the injury.

At this stage, the person should be “rated” for their level of permanent impairment.  Usually, at least two doctors will rate a workers’ compensation claimant as to the degree of personal injury: one physician that is contracted by the injured worker or his/her attorney, and one physician by the employer/insurer’s physician.  Not surprisingly, the claimant’s doctor will usually provide a higher disability rating than the employer/insurer physician.  After that, the two sides will either work out a settlement agreement as to the level of permanent damage, or they will go to a hearing in which a Workers’ Compensation Commissioner will review the medical reports and hear the testimony of the worker as to what ongoing issues are still being experienced.  Then the Commissioner will assign a rating to the person’s permanent injuries.

Each body part in Maryland is assigned a different total number of weeks of permanent partial disability benefits.  For example, to use our imaginary situation of an injured hand, the maximum number of weeks of permanent partial disability that someone can receive for a hand is 250 weeks of payments.  Now let’s say that our injured worker goes to a hearing, and the Commissioner decided that he has suffered a 10% permanent loss of use of his hand due to the work accident.  To figure out how much money the person would receive, we would multiply 10% x 250 possible weeks x one-third of the person’s average weekly wage.  In 2019, the maximum weekly payment that someone could receive for a 10% hand injury would be $187.00/week.

10% x 250 weeks x $187.00 = $4,675.00 in payments paid over the course of twenty-five weeks.

I hope that example was not too complicated.  To summarize, there are several factors that come into play when determining PPD: what part(s) of the body were injured; how badly injured they were, based on independent medical evaluations; and what the person’s average weekly wage was at the time of the injury. How does this apply to COVID-19?  I will address that in Part II.

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Is COVID 19 better classified as an “accidental personal injury?”

A few weeks ago I wrote a piece discussing whether or not someone who contracts COVID-19 while at work has contracted an “occupational disease” for which he or she could receive workers’ compensation benefits. As I mentioned in that article, COVID-19 presents novel legal questions. In this article, I will consider whether or not COVID-19 is perhaps better-defined as an “accidental personal injury.”

Accidental personal injuries are probably what most people think about when they first think of workers’ compensation. An accidental personal injury is, for the most part, exactly what it sounds like: some injury that a person suffers by chance, while at work. The range of possible accidental personal injuries is endless. Some examples include: straining a muscle while lifting something heavy; suffering a laceration while operating machinery; or breaking a bone by falling from a height. These are some of the typical accidental injuries that arise while people are at work.

The statutory definition of accidental personal injury is found in MD Code Labor and Employment Section 9-101(b):

• Accidental personal injury. — “Accidental personal injury” means:
  • an accidental injury that arises out of and in the course of employment;
  • an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of the employment of the covered employee; or
  • a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment, including:
    • an occupational disease; and
    • frostbite or sunstroke caused by a weather condition.

At first glance, one might consider subsection (3), which mentions disease or infection, as possibly encompassing COVID-19. However, the plain language of the subsection goes on to state that only diseases or infections that “naturally result from an accidental injury” are to be classified as accidental personal injuries. In other words, the disease or infection must be secondary to some more typical physical injury. An example might be someone at work who suffers a seemingly minor scratch on their hand. If the scratch becomes infected and causes more serious health issues, those issues would be considered an accidental personal injury pursuant to subsection (3).

As I discussed in my prior piece, the traditional concept of an occupational disease is one that develops over a long period of time due to exposure to some workplace condition. While COVID-19 takes a few weeks to “incubate,” that is not really the type of “slow and insidious” development traditionally associated with occupational diseases. Therefore, perhaps it makes more sense to classify COVID-19 infection as an “accidental personal injury.”

Maryland’s highest court, the Court of Appeals, examined the parameters of “accidental personal injury” in the case of Belcher v. T. Rowe Price, 329 Md. 709 (1993). That case involved a woman who was sitting at her desk when a huge construction beam came crashing through the ceiling very close to her. Thankfully, she was not physically harmed, but she suffered significant psychological effects from this frightening and traumatic experience. A full discussion of this case is not on point for this article, because COVID-19 is of course a physical illness, not a psychological one. However, the case is relevant because the Court examined in depth the definition of what constitutes an “accidental personal injury.”

The Court wrote: “…[T]he physical injury need not be caused by physical impact or harm directly to the body but may be the result of a nervous shock. Furthermore, the injury need not be externally apparent, but may be to the internal structure of the body, as for example, cerebral hemorrhage, apoplexy, heart failure or paralysis. The symptoms of injury need not be immediately apparent but may follow the accident by some lapse of time.”

I believe that the Court’s analysis in Belcher provides for the possibility of defining COVID-19 as an accidental personal injury. The physical injuries arising out of COVID-19 are not due to an immediately traumatic experience at the macro level, such as a twisted ankle or broken bone. However, there is some physical interaction that occurs whereby the virus cells interact with and infect the host’s lung cells. This is certainly more than a mere “nervous shock” and should be considered a “physical injury.”

Secondly, the damage caused by COVID-19 is to the “internal structure” of the body, which again is allowable pursuant to the Belcher analysis of accidental personal injuries.

Finally, the symptoms of COVID-19 may not arise immediately, but only after some period of incubation. This factor as well does not appear to be problematic according to the language from Belcher that I quoted above.

All in all, I think there are arguments to be made, based on the statutory definitions and case law, that COVID-19 can constitute an occupational disease, an accidental personal injury, or both. It remains to be seen how the Workers’ Compensation Commission and the courts of Maryland define the disease.

Please feel free to call us at 4107870022 if you have any questions about COVID-19 as it pertains to a possible workers’ compensation claim, or any other question related to workers’ compensation in Maryland.

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