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Here in New Jersey we have seen a significant number of claim petitions filed in the Division of Workers’ Compensation seeking benefits arising from alleged exposure to COVID-19 in the workplace.
The Essential Employee Law
The landscape for the COVID claims drastically changed when the New Jersey Legislature signed The Essential Employees bill into law on September 14, 2020. The law is retroactive to March 9, 2020 and creates a presumption of compensability for certain categories of employees. These categories include:
A. Public safety workers or first responders, including fire, police, or other emergency providers;
B. Those involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes.
C. Those who perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including but not limited to 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, or;
D. Anyone deemed an essential employee by the public authority declaring the state of emergency.
The effect of this presumption is that the burden of proof does not rest on the Essential Employee to prove that he or she contracted COVID from work. It is now presumed to be work related. The burden instead shifts to the employer to disprove the case. The law 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 another job or prior to the effective date of the law (March 9, 2020).
The petitioner still has the Burden to Prove Permanent Partial Disability
The petitioner always has the burden of proof with respect to permanent partial 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 which substantially limits one’s activities of daily living or materially impacts one’s working ability.
The End of the Presumption
One important question now facing practitioner is when this presumption will end. My position is that this presumption was terminated when Governor Murphy declared the end of the public health emergency on July 3, 2021 as the basis 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 was terminated, many workers’ compensation professionals contend that the presumption must have ended because the law was in response to the existence of a public health emergency.
Currently, the end of the presumption does not mean all that much because many claim COVID petitions are still being filed. Without a presumption, the petitioner must prove more likely than not that he or she contracted the virus at work. That is just like any other occupational disease claims in New Jersey where the burden rests on the petitioner to prove his or her case on compensability.
Defending COVID Claims
Rebutting the presumption of compensability requires an investigation into the petitioner’s relevant medical history and the circumstances that led to his or her exposure. In all occupational claims, including COVID claim petitions, both parties can propound interrogatories on the other side to answer. Unfortunately, the standard occupational interrogatories used in New Jersey are mostly outdated with no questions about family exposure, travel exposure, mask use or community exposure in the approved form interrogatories. Counsel for the respondent should prepare relevant interrogatories customized to address each individual COVID claim petition.
These interrogatories must address exposure potential at home with relatives or friends, dates and locations of travel, holiday gatherings, dates of positive testing, quarantine periods, secondary employment, and volunteer work, the timing of the diagnosis and current symptoms and treatment.
No one really knows what the long term effects of COVID are. The COVID virus seems to frequently attack preexisting medical conditions. For this reason it is important to obtain family doctor records to assess the prior medical diagnosis. Family doctor records may have very important information about prior conditions and also about initial conversations regarding the possible sources of the COVID exposure.
Depending on the allegations in the particular case, it may be necessary to obtain prior treatment records from other specialists as their findings may be directly relevant to causation.