Experts expect legal battle over COVID-related workers’ compensation in Virginia

Retroactivity provisions were ‘like a ripple across the legal profession’

By: - September 7, 2021 12:01 am

Health care workers screen a patient for COVID-19 at a drive-through coronavirus testing site on March 18, 2020 in Arlington, Virginia. Fewer patients are relying on PCR tests, preferring at-home antigen tests whose results aren’t typically reported back to the state. (Photo by Drew Angerer/Getty Images)

Employees who experienced severe cases of COVID-19 could face an uphill battle when it comes to claiming workers’ compensation benefits.

Attorneys on both sides of the cases — those representing workers and those representing employers and their insurance carriers — expect legal challenges, which they attribute to recently passed laws expanding access to workers’ compensation for first responders and frontline medical providers. 

Under the new legislation, which went into effect on July 1, the coronavirus is considered an occupational disease for those categories of workers, which include any health care provider involved in “diagnosing or treating” COVID-19 as well as firefighters, law enforcement officers, EMS workers and correctional officers. When claims are filed, it’s presumed those workers contracted the virus on the job unless an insurer can provide clear and convincing evidence otherwise — a standard that’s very difficult to meet in the case of common infectious diseases.

“It flips the burden,” said Casey Ariail, chair of the workers’ compensation section for the Virginia Trial Lawyers Association, who represents employees in the cases. “Typically, for the person bringing any kind of claim, it’s on them to prove it. And that’s why these laws are important — the presumption flips the burden of proof to the employer.”

They also extend the presumption retroactively to earlier stages of the pandemic. For first responders, COVID is considered occupational for any claim dating back to July 1, 2020. For medical providers, the presumption goes back to March 12, 2020, when Gov. Ralph Northam first declared a state of emergency. Those retroactivity provisions, which sparked a showdown between the House and Senate over the potential cost of the legislation, also made waves for attorneys in the field.

“It really shocked everyone when they did it,” said Kevin Cloe, co-chair of the workers’ compensation section at Midkiff, Muncie and Ross. “It was like a ripple across the legal profession.” It also shocked insurers who lobbied hard against the bill, prompting new strategies on fighting retroactive claims. 

Midkiff, Muncie and Ross, which represents insurance carriers, has already announced its intentions to challenge the constitutionality of the laws. And the firm isn’t alone. 

“Every defense lawyer I know plans to argue that the retroactive application of this statute is unconstitutional,” Cloe said. “And it’s no surprise. The main lobbyist for the employers told them it was going to be contested.”

‘I have a very hard time believing that anything like this is going to be accepted’

That’s largely because retroactivity in general can raise complicated legal questions — a big reason why it’s rarely included in laws.

Even attorneys who represent the worker side of claims said the legislation amounts to an unexpected burden on insurers and employers. 

That’s because when carriers charge for premiums, they base their rates on accidents and illnesses they expect to cover, said Michele Lewane, a workers’ compensation attorney of more than 30 years who represents injured employees.

“It’s kind of like saying, ‘Smoking cigarettes is now a crime and we’re making it illegal as of last year,’” she said. “I have a very hard time believing that anything like this is going to be accepted.”

Without the presumption that it’s an occupational disease, the virus is considered an “ordinary disease of life,” akin to the flu or the common cold. Insurers argue those types of illnesses can get picked up anywhere, even by workers in high-risk settings. 

Jerry Lutkenhaus, a Richmond-based attorney who represents employees, pointed to a recent case appealed to the Virginia Workers’ Compensation Commission and settled less than a month before the new laws went into effect. Without the presumption, the claimant lost, despite working in a nursing home at the time she contracted COVID. 

The woman alleged one of her close coworkers — another nurse at the facility — didn’t wear a mask, coughed frequently and was later hospitalized for a reason never disclosed by their supervisor. But the claimant also “admitted to making weekly shopping trips to Walmart and Food Lion,” according to the case, failing to provide “clear and convincing evidence” she contracted the disease at work.

Virginia National Guard soldiers and airmen collected samples for COVID-19 testing at a long-term care facility April 28, 2020. (U.S. National Guard photo by Cotton Puryear)

“That’s what makes this presumption so powerful,” Lutkenhaus said. And combined with the retroactivity provision, it opens the door for more than a year’s worth of claims that insurers never expected to pay. 

Ariail pointed out that the unprecedented and unexpected global pandemic is one strong defense for making the laws retroactive — along with the massive risks taken by the workers they cover. But many lawyers also said the state’s General Assembly made things more difficult by passing the legislation so late into the pandemic. 

According to John Ruser, president of the Massachusetts-based Workers Compensation Research Institute, other states have also passed presumption laws with retroactivity provisions. But in many cases, they only extended back a few months. Alaska, for example, passed a law in April of 2020 that covered claims from the previous month. New Jersey’s law passed in September 2020 and was retroactive to March 9. Minnesota’s presumption law didn’t include a retroactivity provision, but passed less than a month into the pandemic.

In Virginia, on the other hand, an early attempt at the legislation failed during a special General Assembly session last September. Legislators couldn’t agree on the details until the following February, and the laws didn’t go into effect until July.

“They dragged their feet and they couldn’t come to an agreement — mainly because of money,” Cloe said. “If they did it last year, it wouldn’t have been that big of an issue. We would have only been talking retroactivity for a few months. But now, making it retroactive all the way to March — that’s 15 months. That is a pretty big deal.”

Right now, experts say it’s too soon to tell when the legislation might make its way to the courts. In Virginia, contested claims are settled by a deputy commissioner with the state’s Workers’ Compensation Commission and appealed to the full commission before they can go to the Court of Appeals. And at least through July of this year, claims for benefits have been relatively uncommon compared to the total number of COVID-19 cases. 

Of the nearly 16,000 workplace infections that employers are required to report to the commission, only 1,463 have resulted in claims being filed.

Of the claims that have been filed, only 518 — about 35 percent — have been awarded benefits. Lewane said she’s heard anecdotally that many attorneys waited until after July 1 to file claims on behalf of their clients — cases that can take months to move through the commission. 

In Virginia there’s a seven-day waiting period, which means employees aren’t paid lost wages for their first week of missed work. In order to retroactively receive benefits for that time, they have to miss more than 21 days. And for most non-serious coronavirus infections employees don’t miss more than two weeks — and generally have limited medical expenses, Cloe said. In many cases, employers and insurers are opting to pay out the claims rather than contest them.

“Take HCA or Bon Secours,” said Lewane, who’s also seen hospitals pay out claims even before the presumption went into effect. “Do they want to be known as the evil employer who didn’t want to cover their workers?” In Alexandria, for example, the city made the preemptive decision not to contest any COVID-related workers’ compensation claim from any employee, according to Asra Amin, the occupational health and wellness provider for the local fire department. In total, there have only been two coronavirus hospitalizations among the city’s first responders. 

(Getty Images)

Given the low cost of most claims, attorneys across Virginia agreed the laws will most likely be tested in extreme cases — workers who accumulate huge medical bills or miss months on the job. Long-haul symptoms could also pose a challenge. Lewane said she’s seen many employers accept an initial diagnosis, but contest other symptoms and long-lasting illness that workers have attributed to the disease.

“I feel like, unfortunately, someone is going to have to be the first one to test this,” Ariail said. “Everyone’s kind of learning as we go — it’s like building an airplane as you’re flying it. And the unfortunate part is that the people it gets worked out on are the ones who are going to suffer through the process.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.