Newsroom
Coronavirus and Pennsylvania Workers’ Compensation
Overview of Coronavirus
The 2020 Coronavirus/COVID 19 pandemic has caused significant disruption to life in Pennsylvania and sickened dozens of people throughout the Commonwealth. The number of reported cases continues to climb daily. Measures to contain the spread of the pandemic have resulted in the closure of schools and businesses throughout Pennsylvania. The disease has spread to every U.S. state, resulting in over 13 million cases and 271, 000 deaths.
The current crisis originated in the city of Wuhan, Hubei Province, China and spread rapidly around the globe. The elderly, those with compromised immune systems and those with underlying health conditions, especially respiratory conditions such as COPD and asthma are most at risk. The available data suggests that although the disease can be severe in many cases and is highly contagious, many cases are relatively mild, especially in the young and the otherwise healthy.
Over several months, treatments have improved as the medical system gains a better understanding of the disease. Work is ongoing on a vaccine, which is being developed as quickly as possible. Initial trials have been promising and a vaccine rollout is expected in the Spring of 2021.
Compensability for Coronavirus under Pennsylvania Workers’ Compensation
Due to the contagiousness of Coronavirus and its rapid spread through the population, it is likely that a great many employees will ultimately contract the infection. State and Federal governments have moved to close non-essential businesses, schools and large event spaces to slow the spread of the disease. However, there are a number of exceptions to the closure orders. In Philadelphia, exceptions include grocery and hardware stores, gas stations, construction, daycares, pharmacies, banks and post offices. This means that a wide variety of businesses will remain open, requiring their employees to come to work and face possible exposure to coronavirus. New rounds of closures are being implemented for the Fall and Winter months of 2020 and 2021.
A coronavirus infection contracted at work is compensable under Pennsylvania’s Worker’s Compensation Act. The Act covers any disease caused by and related to employment. Pawlosky v. WCAB (Latrobe Brewing Co.), 525 A.2d 1204, 1210 (Pa. 1987). However, it is likely that employers’ exposure to workers’ compensation claims for COVID19 will me low for two reasons: proof and disability.
An especially relevant case is City of New Castle v. WCAB (Sallie), 546 A.2d 132 (Pa.Cmwlth. 1988). In City of New Castle , the Commonwealth Court held that a fatal meningitis infection contracted from a kiss on the cheek from a coworker, was compensable under the Pennsylvania Act. Specifically, the decedent was at a going-away party for a coworker, gave her a peck on the cheek and came down with a fatal case of meningitis two weeks later. Testing done after the decedent’s death revealed the coworker was an asymptomatic carrier and was the only such carrier the decedent came in contact with.
City of New Castle demonstrates two issues that will likely stymie claims for COVID19 exposure. First, a Claimant always bears the burden of proof to demonstrate all the elements to support an award, including causation and disability. Vista Int’l Hotel v. WCAB (Daniels), 742 A.2d 649 (Pa. 2000); Inglis House v. WCAB (Reedy), 634 A.2d 592 (Pa. 1993).
In City of New Castle, the Claimant had the benefit of extensive testing that identified the source of the meningitis bacteria as a coworker. This conclusively pinpointed the source of the infection to his work. A worker who comes down with a COVID19 infection will have the same burden of proof. But as the pandemic becomes more widespread, it will be difficult for a claimant to obtain such specific proof of the infection. In essence, a claimant would have to show exposure to COVID19 at work, and nowhere else, to maintain a successful claim. This is a high bar for the average worker to meet, especially as more people in the population are infected with this highly contagious disease. Of course, specific circumstances will dictate the proof available. A nurse or doctor who deals with coronavirus patients will likely have an easier time of demonstrating exposure at work than a stocker or cashier at a grocery store. As testing for coronavirus becomes more routine, it may be easier to demonstrate exposure. Such claims will come down to the available facts on a case by case basis.
The second challenge is regarding disability. City of New Castle obviously involved a serious injury resulting in death and significant exposure to the employer. However, with this outbreak even if a claimant has proof of an infection at work, most coronavirus infections have relatively mild symptoms and thus only minimal value as a claim. Up to 80% of persons who contract the infection have mild symptoms and recover¹. While an infected person will require quarantine and medical care, an otherwise healthy person contracting coronavirus may not be out of work for longer than the 14 days required to receive first-day benefits under 77 P.S. § 514. A claimant may simply not be out of work long enough to collect more than a week of indemnity benefits. More severe cases will result in longer term disability, even death, but these appear to be a minority overall. It will likely be the rare case that results in significant exposure and possesses proof linking the infection to an employee’s work.
Medical benefits may be significant in those cases requiring hospitalization. But, if the 80% figure is correct, most infections will not result in significant medical exposure. However, this may change as we learn more regarding this disease and its long term effects.
The ongoing COVID 19 pandemic continues to evolve rapidly and new information is coming out daily. As such exposure to workers’ compensation claims for this disease may change as new data is produced regarding the outbreak in Pennsylvania.
¹https://www.cnn.com/2020/02/19/health/coronavirus-china-sars-mers-intl-hnk/index.html
Jacob Lehman Presents at ALFA International Client Seminar in Marco Island, FL
Mr. Lehman recently had the honor of serving as the moderator of the plenary opening and closing sessions at ALFA’s signature legal conference, the International Client Seminar, which took place March 12-15 at the J.W. Marriot in Marco Island, Florida.
The sessions, entitled “Reply All: Has the Attorney-Client Relationship Suffered in an Over-Connected World, Why it Matters and Can we Make it Better” were presented through the lens of a bet-the-company class action litigation and honed in on issues in the attorney-client relationship from selection of counsel, to bill auditing and alternative fee arrangements, to good communication practices. The presentation materials, including clips of the world-famous “ICS Update” news broadcast featuring legal correspondent Saul Goodman, are available upon request. Please reach out to Mr. Lehman at lehmanj@ggmfirm.com.
Jacob Lehman and Michael Dolan Author Article on Product Liability and Online Retailers
Partners Jacob Lehman and Michael Dolan recently contributed an article to the Legal Intelligencer’s Annual Product Liability Supplement.
The piece, entitled Strict Products Liability: One More Thing the Internet is Disrupting, explores the hot topic of whether online marketplace retailers such as Amazon.com can be held strictly liable for defects in products sold on their website by third-party retailers. The article is available at the following link: “Strict Products Liability: One More Thing the Internet Is Disrupting“.
Jacob Lehman Presents Webinar on Hot Topics in Product Liability Litigation
As part of the firm’s ongoing involvement with and commitment to ALFA, the global legal network, Partner Jacob Lehman recently teamed up with Partner Matt Jacobson of the Des Moines, Iowa ALFA firm, Whitfield & Eddy, P.L.C. to present a webinar covering hot topics in product liability litigation.
The hour-long talk covered common issues confronting manufacturers and dealers in product liability litigation and presented practical advice and tips to avoid product liability lawsuits and to defend against the claim when they are asserted. The webinar is recorded and persons interested in obtaining a copy may reach out to Mr. Lehman at lehmanj@ggmfirm.com
Andre J. Webb elected to the Philadelphia Bar Association’s Board of Governors
German Gallagher & Murtagh is excited to announce that Andre J. Webb has been elected to the Philadelphia Bar Association’s Board of Governors. The Board of Governors is responsible for overseeing all Bar Association business and policy of the 12,000-member association. The oldest association of lawyers in the United States, the Philadelphia Bar Association serves the profession and the public by promoting justice, professional excellence and respect for the rule of law.
Andre will begin his three year term on January 1, 2020. Our congratulations to Andre and to the other newly elected Board of Governor members.
Andre was also elected Chair-Elect of the Philadelphia Bar Association’s Young Lawyers Division. The mission of the YLD is to, encourage the professional development of young lawyers through educational and service programs, participate in the growth and advancement of the legal profession, and encourage young lawyers to represent deserving clients on a pro bono basis. Andre will serve as Chair-Elect of the YLD in 2020 and will be elevated to Chair in 2021. The YLD Executive Committee manages and directs the business and activities of the YLD’s more than 2,900 members, and has oversight of 20 committees in the areas of public service, law-related education and service to the legal community.
Barristers’ 35th Annual Turkey Drive
This Thanksgiving GGM contributed to the Barristers’ Association of Philadelphia’s 35th Annual Turkey Drive. Each year, the Barristers’ Association works diligently to identify local families in need of support during the holiday season. This year over 700 families were served.
German, Gallagher & Murtagh’s Tort Trotters Participate in Rocky Run 2019
German Gallagher & Murtagh’s “Tort Trotters” participated in the Rocky Run 2019 benefiting Special Olympics. Team members were Attorneys Jacob Lehman, Matthew McColgan, Nikki Mosco, Yana Shapiro, Marni Stahl, Brian Sumner & Andre Webb.
Jeff Laudenbach Elected to the ALFA International Board of Directors
Congratulations to German Gallagher & Murtagh partner Jeffrey D. Laudenbach on his election to the ALFA International Board of Directors.
Andre J. Webb appointed Vice Chair of DRI Young Lawyers Substantive Law Subcommittee
Andre J. Webb attends DRI’s 2019 Annual Meeting where he was appointed Vice Chair of the Young Lawyers Substantive Law Subcommittee. In this role he will assist in organizing young lawyers’ events nationwide and identifying content for the newsletters.
Chad Goebel was a featured speaker on a panel at the 2019 ALFA International Products Liability and Complex Torts Seminar
Chad was a featured speaker on a panel at the 2019 ALFA International Products Liability and Complex Torts Seminar in Marana, Arizona. The panel covered a wide variety of topics related to the attorney-client privilege in the corporate context, including properly asserting it; avoiding waiver; multi-party joint defense scenarios; and recent trends seemingly eroding the protections afforded by the privilege.
