COVID-19 First Responders Representation

Increased Evidentiary Burden: Clear and Convincing Evidence:

Although work related coronavirus exposures represent a new issue for the Workers' Compensation to decide, prior case law indicates that the Commission will likely treat a work related exposure to coronavirus as a an ordinary disease of life that is being claimed as an occupational disease. This is highly relevant as it increases the evidentiary burden significantly that an injured worker must meet to prevail on his or her case.

In a typical case, an injured worker must only show the Deputy Commissioner why they should win by no less than 51% certainty. Generally speaking, this is known as a 'reasonable degree of medical certainty' or a preponderance of the evidence. With an ordinary disease of life, however, that is being claimed as an occupational disease, the evidentiary burden raises to what is known as 'clear and convincing evidence.'

In addition, an injured worker must show, pursuant to Virginia Code Section 65.2-401, the ordinary disease of life arose out of and in the course of employment, did not result from causes outside the employment, and either (1) followed as an incident of occupational disease, or (2) was an infectious or contagious disease contracted in the course of delivering certain defined types of health care, or (3) was characteristic of and caused by conditions peculiar to the employment. See Horton v. Martha Jefferson Hospital, VWC File No. 237-21-53 (May 5, 2009).

Essentially, the burden is on the injured worker to show the Deputy Commissioner that the exposure was suffered at work, not out in the community, and establish this fact by a significant amount of evidence.

Clear and Convincing is not an evidentiary burden most injured workers can meet by themselves and require the assistance of an experienced workers' compensation attorney to prevail.