ADDITIONAL COVID-19 ISSUES:
POTENTIAL FOR PTSD CLAIMS FOR EMPLOYEES THAT COME INTO
CONTACT WITH COVID-19
We have addressed the compensability of COVID-19 contraction by employees in Massachusetts in previous blasts, but the contraction of the virus is not the only potential injury to arise from this pandemic. Recently, clients have asking about the potential for PTSD claims for employees that come into contact with the virus. It is useful to break these potential claims into separate categories:
1. The first category includes health care professionals caring for COVID-19 positive patients. These employees can certainly develop an emotional disability as a result of their employments and, if related, it can cause a compensable disability even if they do not actually test positive for the disease. Such disabilities are usually not long lasting but they could change depending on the person. To be deemed compensable, there must be “an event or series of events” triggering the breakdown, not just a general fear of going to work.
2. The second category includes employees who are required to work, such as grocery clerks or delivery people, where the fear of contracting COVID-19 or actually contacting the virus causes an emotional breakdown. Since the risk of infection is not inherent in the workplace, any disability attributable to the virus itself would not be compensable. Thus, filing an emotional claim is seen as a way to get around that aspect of the Workers’ Compensation Act. Such a claim could be effective if there is an actual emotional disability with causation and an “event or series of events” that triggered it. The standard of causation is high, as the work event or series of events must be the predominant cause. The disability must be related as well to the event or series of events, and not due to the infection itself. A possible example may be someone going up to an employee in a store and without a mask coughing in their face. Whether that person is COVID-19 positive is not the deciding question—the employee’s fear that he/she contracted the disease could cause an emotional reaction. Cases like this should be denied because of the high level of proof required on causation and disability with the primary medical disability being the infection, which again would not be compensable.
3. The third category is where an employee with a compensable or allegedly compensable COVID-19 claim also claims an emotional breakdown as well. If the underlying infection is compensable, then complications from the disease (including emotional complications) can be compensable. This is actually an unknown and evolving issue since the complications of this particular virus are not entirely known and could potentially include long-lasting physical or emotional sequelae. If the complication is medically related, it could be compensable if disability and causation can be established.
COVID-19 AND THE
SECOND INJURY FUND
The Second Injury Fund may be available in some cases where employees have contracted COVID-19. The Second Injury Fund will only be available if the employee died following contracting the virus, or they became permanently and totally disabled. We do not anticipate many instances where employees will be deemed permanently and totally disabled since most will hopefully make a full recovery and be capable of returning to work in a relatively short period of time. In the unfortunate cases where death occurs, for the Second Injury Fund to be a possibility the insurer will need to prove that the death would not have occurred “except” for the prior physical impairment. The usual elements to a Second Injury Fund recovery claim will also need to be satisfied in addition to this heightened standard for death cases. We feel this may be a possibility in cases where the prior impairment was a clear and obvious impediment to the employee’s treatment after contracting the virus. Some examples include cases where the employee may have been a severe diabetic, suffered from asthma, or other severe cardiac or breathing issues. We would be happy to discuss each case and provide you with our opinion on whether recovery may be available at no cost.
FOR MORE INFORMATION PLEASE CONTACT:
The Massachusetts Department of Industrial Accidents has informally indicated that hearings in workers’ compensation matters are postponed “for the indefinite future”, possibly a Phase 3 soft opening, and as such, no hearing notices will be issued.
It is also anticipated that both conciliations and conferences will continue to be remotely conducted for the next six months.
We are enclosing the second updated order, which is effective June 1, 2020. This order updates prior issued orders and defines and explains the identification, handling and guidance regarding virtual emergency and non-emergency matters, jury and bench trials, grand jury empanelment, statute of limitations and other procedural and statutory deadlines, and other myriad procedures and guidelines.
All jury trials, in both criminal and civil cases, scheduled to commence in Massachusetts state courts from March 14, 2020 through September 4, 2020, will be continued to September 8, 2020 or later.
In addition, all bench trials, in both civil and criminal cases, scheduled to commence in Massachusetts state courts from March 14, 2020 through June 30, 2020, will be continued to July 1, 2020 or later.
A full copy of the order can be found here
WE ARE FULLY PREPARED TO REVIEW
OR DISCUSS ANY ISSUES INVOLVING
WORKERS’ COMPENSATION
DURING THIS CRISIS.
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