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Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims. Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?
The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker. For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low. The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree. This test is hard to meet because it is next to impossible to identify the source of the virus. Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations. For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact. It would almost always be pure speculation where the exposure occurred.
Public safety workers, on the other hand, will have a strong argument for compensability. The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers. That law became effective in New Jersey on July 8, 2019. This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.” Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.
N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .” There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.
N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence. The language does not say definite or proven exposure but rather “potential” exposure. Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.
These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute. Having a presumption of compensability is powerful. When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related. Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures. The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related. So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.
The statute drives this point home: “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”
The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States. If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment. While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms. Sadly, a small percentage of deaths is related to the coronavirus. It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.