While many of us have worked from home during the COVID-19 pandemic, certain essential workers have continued to report to work, where they risk catching the coronavirus. Those who become ill because of exposure through their job duties would ordinarily expect to qualify for workers’ compensation benefits, but South Carolina’s law will make this a case-by-case determination for workers who contract COVID-19 as the nature of an illness acquired in a pandemic raises questions about a potential workers’ comp claim.
The South Carolina workers’ compensation attorneys of Joye Law Firm are reviewing workers’ compensation claim cases related to occupational exposure to COVID-19. While these cases will need to be tightly screened, we will fight to help you pursue the workers’ comp benefits available under S.C. state law when we accept these cases, just as we have for South Carolina workers for more than 50 years.
What is a Coronavirus and COVID-19?
Coronaviruses are named for the crown-like spikes on their surface (a “corona”). There are four main sub-groupings of coronaviruses (alpha, beta, gamma and delta) and seven coronaviruses that can infect humans.
The common cold and influenza are coronaviruses. Two other well-known human coronaviruses are MERS-CoV (Middle East respiratory syndrome, or MERS) and SARS-CoV (severe acute respiratory syndrome, or SARS).
A virus is a microscopic parasitic organism that must invade the living cells of another organism to grow and reproduce. The ability to mutate is why some viruses change slightly in each iteration – or even in each infected person – making treatment more challenging.
The newest human coronavirus is SARS-CoV-2, a unique coronavirus disease identified in 2019, which is why it’s referred to as COVID-19. It is a respiratory illness. The virus invades cells of the lungs to reproduce, which damages the lungs.
COVID-19 can be deadly, and there is no known cure or vaccine for it at present. Recently, a corticosteroid known as “dexamethasone” was shown in a major clinical trial to significantly reduce deaths among severely ill COVID-19 patients.
How is This Coronavirus Spread?
The COVID-19 coronavirus is spread from person to person. Researchers say that the new coronavirus is spread through droplets released into the air when an infected person coughs, sneezes or even talks. This explains why most athletic events are now banning fans from attending as it would be dangerous to be surrounded by many people yelling in support of their team.
A mist of tiny droplets containing the virus can remain suspended in the air for a period of time, a Scientific American report explains.
These droplets can land in the mouths or noses of people who are nearby or may be inhaled into the lungs, the Centers for Disease Control and Prevention (CDC ) says.
In late May, the CDC said it may be possible to get COVID-19 by touching a surface or object that has the virus on it and then touching your own mouth, nose or eyes, but this isn’t thought to be the main way the virus spreads.
Are Employees With COVID-19 Entitled to Workers’ Compensation Benefits?
Workers’ compensation is an insurance program that provides benefits to workers who suffer an illness or injury arising out of and in the course of employment.
South Carolina law recognizes certain “occupational diseases” as qualifying for workers’ compensation if they are caused by a hazard peculiar to an occupation or by continuous exposure to the normal working conditions of the occupation.
Usually, acquiring a non-occupational disease does not make a worker eligible for workers’ comp benefits, because the illness did not arise out of the course of employment. For example, the common cold or flu could be contracted anywhere, not necessarily at the place of employment.
However, the National Law Review says an otherwise non-compensable illness could be compensable if the worker’s employment subjects them to an increased risk.
“Given that COVID-19 will likely be considered a non-occupational disease, employers should consider whether their employees who contracted COVID-19 were subjected to an increased risk of developing the illness at work, or whether the employment aggravated the condition,” the NLR says. It would appear that healthcare workers, first responders, and those who routinely interact with the public as part of their job would have a better chance of qualifying for benefits based on an increased risk of exposure due to their job duties, the NLR says.
Based on the language in South Carolina’s Workers’ Compensation Act, a worker who has contracted COVID-19 would likely be better off asserting that he or she has sustained an “injury by accident”, rather than contending that they has contracted an “occupational disease.” Section 42-11-10 of the Act bars coverage for an occupational disease if the disease results from exposure to fellow employees, or from a hazard that the employee could have been equally exposed to outside of his employment, or if it’s an ordinary disease of life to which the general public is equally exposed. Based on this language, you can see the uphill battle that a worker with COVID-19 would face in asserting that an occupational disease has been contracted.
However, a worker with the COVID-19 condition could certainly assert that she has sustained an injury by accident if the worker’s employment is one where it can be proved that exposure to ill persons (medical workers, EMT’s, prison workers) or to a large number of the general public (grocery store, restaurant and other retail store workers) makes it more probable than not that the worker contracted her condition due to her employment. To date, several hundred COVID-19 workers’ compensation claims have been filed in South Carolina. To this author’s knowledge, the workers’ compensation insurance companies have denied all of these claims so they will have to be litigated before the Workers’ Compensation Commission. Multiple commissioners have indicated that they will adjudicate these cases based on the unique facts involved with each worker’s claim.
Workers’ compensation benefits include payment of all medical bills and a portion of wages lost due to the individual’s inability to work. There are additional payments available for permanent disability or the death of the worker, with the latter going to surviving family members.
A Bloomberg News report says the aftermaths of epidemics caused by similar viruses suggest that disabilities caused by COVID-19 could last more than a decade or be permanent. Studies of COVID-19 survivors in China show reports of breathlessness, fatigue, body pain and poorer functioning in their lungs, heart and liver months after first becoming infected. When these permanent impairments due to COVID-19 are supported by medical evidence, a worker whose claim was found to be compensable will be entitled to benefits for the same.
South Carolina Workers’ Compensation Claims Process
A worker who has been diagnosed with COVID-19 in South Carolina should report the illness to his or her employer and request medical care to start the workers’ compensation claim process.
Officially, you have 90 days from the date of diagnosis to notify your employer, but this deadline is waived for a worker physically or mentally incapable of reporting their illness. That would apply to many seriously ill COVID-19 victims. Bottom line, it is best to notify your employer as soon as possible.
If a COVID-19 claim is not accepted (and this should be anticipated), the employee will have to file a Form 50 with the South Carolina Workers’ Compensation Commission. In the event of a death, a family member would file a Form 52. If your COVID-19 claim has been denied, DO NOT try to handle your claim on your own. These are extremely complicated claims and it will be crucial that supportive medical evidence is gathered for you to have a viable chance of winning your case. Doing this work is part of our job as experienced workers’ compensation lawyers.
If your employer or their insurer denies you benefits, you have the right to ask for a hearing before the S.C. Workers’ Compensation Commission (WCC), where a commissioner will review your case and make a decision. Depending on the nature of your claim, you may be required to try mediation before the hearing. If your claim goes to a first hearing and you are not satisfied with the outcome, you can appeal to a second stage, which is a review by a panel of three commissioners. A third appeal of a denied workers’ comp claim would go to the S.C. Court of Appeals.
Contact a South Carolina Workers’ Compensation Attorney
It is very likely that a claim for workers’ compensation based on occupational exposure to COVID-19 will be denied by the employer and/or insurer. If your claim is challenged, don’t give up. Instead, you should have an attorney representing you at the initial hearing. It will be conducted according to court rules and include the opportunity for both sides to offer evidence and testimony.
A workers’ compensation lawyer at Joye Law Firm can help you compile evidence to support your claim and advocate for you before the S.C. Workers’ Compensation Commission. We can help prepare your initial claim and represent you throughout the appeals process, if necessary.
Call us at 888-324-3100 for a free, no-obligation review of your workers’ compensation claim or contact us online. We have offices with workers’ compensation attorneys in North Charleston, Columbia, Clinton, and Myrtle Beach and we represent injured workers throughout South Carolina.