What is COVID-19?
COVID-19 is a novel coronavirus, a new strain identified in 2019. It is different than coronaviruses that are common in the community. These have been in our midst since the mid-1960s.
We have had severe strains in the past, some of which you may have heard of including SARS and MERS. The term corona is used because the virus has a crown-like spike on its surface. COVID-19 was first identified in Wuhan, China and since has spread throughout the world.
This virus easily spreads from person to person. Researchers describe it as spread between people who are in close contact with one another, generally within 6 feet. The CDC reports that most people spread the contagion when they are symptomatic, but they do not rule out that someone can be contagious before symptoms arrive.
When Should an Employer Fill out a First Report of Injury?
A First Report of Injury documents a known injury or an employee report of a potential injury. It is not a determination of whether an injury occurred or is compensable.
A First Report of Injury is defined in Minnesota Rule 5220.2530, and discussed in Minn. Stat. § 176.231.
We recommend that an employer file a First Report of Injury whenever it has reason to believe a work-related injury occurred, and when an employee reports an alleged work-related injury. The obligation to proceed with a First Report of Injury does not commence when an employee reports a health condition or that they are ill.
For example, if the employee reports “I am missing work today because I am sick and I believe I have COVID-19”, that would not trigger a basis for filing a First Report of Injury.
By contrast, if the employee reports “I was working with a client, Jane Doe, who has a positive test result for COVID-19. I was assisting her in close quarters. I now have been diagnosed with COVID-19 and believe it is connected.” At that point it is recommended that a First Report of Injury be prepared. The insurer or administrator can then undertake additional investigation to determine whether primary liability should be admitted or denied. A First Report of Injury is filled out regardless of later investigation and verification.
Evaluating Primary Liability For Occupational Disease
Minnesota law provides workers’ compensation coverage for personal injuries and occupational diseases that arise out of the course and scope of employment. Occupational disease is defined carefully in Minn. Stat. § 176.011, subd. 15.
Occupational disease generally excludes ordinary diseases of life to which the general public is equally exposed. The statute provides that an ordinary disease of life to which the general public is equally exposed outside of employment, is not compensable unless the disease follows directly from the employment.
An occupational disease arises out of employment only if there is a direct causal connection between the work, or the conditions under which the work is performed, and the disease. The occupational disease must be the result of exposure occasioned by the employment.
The statute is clear that “an employer is not liable for compensation for any occupational disease which cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to the occupation/employment, or which results from a hazard to which the worker would have equally been exposed outside of the employment.
There must be a proved connection between the ordinary disease of life and exposures on the job. The exposure must be directly caused by the work or the conditions under which the work is performed. The key language is that the disease is not compensable if it cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to that occupation.
Presumption – First Responders/Emergency Medical
According to Minn. Stat. § 176.011, subd. 15 (b), if immediately preceding the disablement the individual by nature of their job provides emergency medical care, or is an employee working as a licensed police officer, firefighter, paramedic, state correctional officer, emergency medical technician, or licensed nurse providing emergency medical care, a presumption of compensability applies. If that employee contracts an infectious or communicable disease to which the employee was exposed during the course of employment outside of a hospital, then the disease is presumptively an occupational disease and shall be presumed to have been due to the nature of employment. This presumption may be rebutted by substantial factors brought by the employer or insurer. Any substantial factors used to rebut the presumption which are known to the employer or insurer must be communicated to the employee at the time of denial.
You will note that this presumption is narrowly drafted. They have to be a provider of emergency medical care or employed as a police officer, firefighter, paramedic, state correctional officer, emergency medical technician, or licensed nurse providing emergency medical care.
They must be exposed to the disease in the course and scope of their employment and it must be outside of a hospital.
If the conditions of this presumption are not met, then the employee has the burden of proof to establish the disease and that it arose out of the employment and is recognized as a hazardous characteristic of and peculiar to that employment.
As injury reports are filed, we invite you to give our office a call to discuss the evaluation of compensability within the framework outlined above.
In the meantime, as this fast-moving pandemic and risk is evaluated, we recommend robust risk management activities. It would be appropriate to contact your insureds, members, and employers to firm up and bolster all appropriate hygiene standards, best practices, and protocols.
We welcome your phone calls. We have experience dealing with all nature of work injuries and occupational disease, including exposures to viruses, pathogens, chemicals, and bodily fluids. We have substantial experience dealing with public employers, medical providers, first responders, and law enforcement personnel.
Please do not hesitate to contact the Lind Jensen Sullivan & Peterson Workers’ Compensation Team with any questions.