COVID-19 First Responders Representation
Why Do I Need Representation On a Work Related Coronavirus Exposure?
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.
The Workers' Compensation Insurance Adjuster Will Want to Take a Recorded Statement Immediately:
As coronavirus/Covid-19 can be such a life threatening disease and the medical expenses to treat the same (i.e., ventilators, medications, hospital stays, etc.) can be so expensive, many insurance adjusters will want to take someone's recorded statement immediately.
This is a point in the case that can be very difficult to recover from if the statement goes poorly. Many Deputy Commissioners will view this statement as one of the 1st accounting's of the exposure and will treat it as if it were spoken under oath during a deposition or hearing. As certain words have legal significance that most injured workers are not aware, but the adjuster is, the insurance adjuster is able to ask questions that can derail a case early on if an experienced workers' compensation attorney is not listening, able to object to certain questions, and/or ask additional questions to clarify responses given to the adjuster.
For this reason, we absolutely recommend a recorded statement not be given by an injured worker unless he or she first retains legal representation, especially with an occupational disease as legally complicated as coronavirus exposure.
Coronavirus Can Be Deadly, With a Host of Long Term Medical Consequences Upon Recovery:
As coronavirus related illness is such a new diagnosis, there is much that is not currently known or understood about the disease. It can seem like medical science learns something new each and every day. Some current evidence is showing that coronavirus does not just attack the lungs, but can also directly attack kidney cells, cause blood clotting, and attack the heart.
Consequently, some unfortunate injured workers may recover from the initial infection only to find they have long term health issues affecting the kidney and heart or stemming from a stroke. As these conditions may not appear until months after the initial infection has resolved, further medical coverage may very well be denied by an insurance adjuster who took responsibility for the initial infection.
Having an experienced workers' compensation attorney will allow you to stay ahead of the game and to attempt to prevent legal battles before they occur, to strive toward uninterrupted medical coverage when you need it the most.