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1. Is a positive COVID-19 diagnosis a compensable work injury?
In Iowa there is not a black and white answer about compensability relating to the coronavirus. These claims must be evaluated on a case by case basis.
Iowa is a combination between positional risk (were they at work when it happened?) and increased risk (did work increase the odds of the injury?). Thus, it would be possible for the worker to establish a causal relationship if the worker could prove they were exposed to COVID-19 at work. In parts of the state where there is community spread, however, it would be more difficult for a worker to establish the work caused the infection when the worker could have caught it elsewhere in the community. Healthcare workers would be an exception to this analysis, most likely. It would likely be easier for a healthcare worker to establish a causal link, depending on their field. In many ways this virus, because of its ubiquitous nature, is not unlike the common cold or flu in the context of compensability. As the virus continues to spread, it will become more and more difficult to determine its source. Again, these cases should be analyzed on a case by case basis. Peddicord Wharton attorneys are happy to discuss these cases with you at any time.
More simply, the employee will have to provide a positive test result and a clear link between work and their exposure.
2. What is the interplay between COVID-19 and the Occupational Disease Statute?
Chapter 85A, the occupational disease chapter, is applied infrequently in Iowa. Claimants typically bring actions under Chapter 85 whenever possible.
We typically see these claims generate from a long-standing exposure to something over time. Historically, there was a list of qualifying diseases, but that list no longer exists. To qualify as an occupational disease, according to Iowa Code section 85A.8, the following requirements must be present:
· Arise out of and in the course of employment.
· Direct causal connection with the employment.
· Followed as a natural incident from an injurious exposure occasioned by the nature of the work.
· Incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment.
· Appear to have its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence.
Note, a disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation isnot compensable as an occupational disease. The compensability analysis for an alleged occupational disease is really no different than the traditional compensability analysis described above in the COVID-19 context.
According to the Iowa Practice Series on Workers’ Compensation, the use of the term “date of injury” is not appropriate in the context of occupational disease because there is no “injury” suffered. 15 Lawyer & Lawyer,Iowa Practice Series: Workers Compensation, 18:4 (2019-2020). Disablement is the term used.Id. Iowa Code section 85A.4, explains that the “event or condition where an employee becomes actually incapacitated from performing the employee’s work or from earning equal wages in other suitable employment because of an occupational disease.”
In short, we do not expect Claimants to pursue work related COVID-19 claims as an occupational disease. More likely the claim would be brought under chapter 85 with Claimant needing to prove causation as they would with any work injury in Iowa regardless of whether the claim is brought under Chapter 85 or 85A.
3. What about a claim for psychiatric injury where the worker has either contracted COVID-19 as a result of a work exposure, or is merely fearful of contracting the virus?
In Iowa, if an injured employee sustains a compensable physical injury and subsequently develops a psychological injury (i.e. anxiety, depression, etc.), such a psychological injury is deemed a compensable injury as well as long as it is causally related to the physical injury. These types of injuries in Iowa are classified as “physical-mental” injuries. The psychological injury can be a new injury (no prior psychological history) or be an aggravation of a pre-existing/underlying mental condition/injury. In the current situation involving COVID-19, if an injured worker is determined to have contracted COVID-19 at the work place and subsequently develops a psychological injury as a result (or experiences an aggravation of an underlying mental condition), the psychological injury will be deemed to be a compensable injury.
Iowa also recognizes “non-traumatic” mental injuries as being compensable – although the burden of proof is quite difficult. See Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845 (Iowa 1995). These injuries in Iowa are classified as “mental-mental” injuries. In “mental-mental” injuries, the mental injury is not preceded by a “physical” injury. To prove a “mental-mental” injury, the injured employee must establish both medical and legal causation. Legal causation requires the injured employee prove that the mental injury was proximately caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs, regardless of their employer. In other words, the injured employee must establish that his or her stress is not common to other employees in similar work (from an objective standpoint). This is a very difficult burden of proof to carry for the injured worker. Additionally, the injured worker must also establish medical causation which will require expert medical testimony. In the current situation involving COVID-19 – and specifically where an injured worker has developed a psychological injury due to fear of contracting COVID-19 – the injured worker will be required to prove that his or her mental injury was “caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs. . .” The injured worker will be required to prove that his or her stress in that regard is not common to other employees in similar work – which will be very difficult, if not impossible to do, under this current COVID-19 situation.
4. What is the appropriate benefit commencement date for compensable COVID-19 claims?
If the employee is taken off work by a medical professional for a presumed case of COVID-19 before having a positive test result, the appropriate commencement date would be the fourth date of disability (after the waiting period). If lost time continues beyond the 14th day, the compensation during the third week must be increased to include the three-day waiting period. Iowa Code § 85.32 (2019). It is appropriate to wait to commence benefits until a positive test result is ascertained, but the worker should then be brought current on benefit entitlement at that time.
5. How do COVID-19 related shutdowns or layoffs impact temporary benefit entitlement for non-COVID-19 related claims?
If an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.
Support for this can be found here:
Iowa Code section 85.33(3) states that the employer shall pay to an employee for an injury producing TTD, weekly compensation benefits until:
· the employee has returned to work or
· is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.
Likewise, Iowa Code section 85.34 states that healing period is owed until:
· the employee has returned to work,
· is put at MMI,
· or it’s medically indicated that the employee can return to substantially similar employment.
Relating to TPD benefits, Iowa Code 85.33(2) says TPD are owed when an employee is not capable of returning to substantially similar employment but is able to perform other work consistent with the employee’s disability.
The only exception to these entitlements is where suitable work is offered and refused. Iowa Code section 85.33(3)(a) instructs that if an employer offers an employee suitable work and that worker refuses, then temporary benefits are not owed.
6. Do we expect to see longer periods of temporary benefit entitlement for non-COVID-19 claims because of the impact of COVID-19?
It’s possible because some providers have been suspended non-essential medical treatment. In addition, other companies have either had to shut down because of a positive case or have been subjected to a government shutdown. As discussed above, if an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.
7. Will there be any permanent benefit entitlement as a result of a compensable COVID-19 claim?
We do not know the answer to this question yet, but similar to other injuries in Iowa, Claimant would have to have sustained permanent damage as a result of the illness.
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