Why workers’ compensation might not provide relief for Pennsylvanians sickened by the coronavirus

This article originally appeared on Spotlight PA.

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Workers on Wednesday packed into buses before dawn for the drive to the Shell cracker plant in Beaver County. Many drivers had called in sick, requiring the 8,000-person crew to cram by the dozens on to fewer buses than normal.

Already, there had been concern about how to stay safe — and separated — if the coronavirus were to spread to a construction site roughly the same size as the small towns surrounding it. By midweek, state health officials had reported two confirmed cases in the county.

Yet lunch was still eaten that day in 500-person tents, workers told Spotlight PA. Photographs showed hand sanitizer containers hanging empty from walls and graffiti on an orange porta-john wall reading, “I have COVID-19 coronavirus and I’m going to infect all of you on this job if I can.”

As state health officials warn of exponential increases in the number of confirmed cases across Pennsylvania, there is growing anxiety among workers such as first responders, nurses, doctors, cleaning staff, cashiers, and truck drivers who are part of the essential economy.

The state Department of Labor and Industry assured workers on March 16 by saying those who contract the coronavirus on the job might be eligible for workers’ compensation benefits. But legal and public health experts say that help may be very hard to obtain.

To be eligible for workers’ compensation, a claimant must prove they were injured or made sick at their workplace. For a disease that’s scope is both constantly changing and unprecedented, proving it was contracted while on the job will be challenging, if not impossible.

“Proof is going to be really difficult,” said Burke McLemore, a Harrisburg-based defense attorney who has specialized in workers’ compensation for 42 years. “If an employer is defending the case he will say, ‘How can you assume you picked up the virus here at work as opposed to the grocery store?’”

The Shell cracker plant site closed temporarily Thursday after more than a thousand workers signed a petition outlining their concerns. A spokesperson said it will likely reopen after the company implements “mitigation measures” outlined by the Centers for Disease Control and Prevention.

As of Thursday morning, there had been 31 workers’ compensation claims related to the coronavirus filed in Pennsylvania, according to a state senator briefed by the Department of Labor and Industry.

Vincent Quatrini, a workers’ compensation attorney near Pittsburgh, said the more coronavirus-related claims are filed, the more likely it is that companies and their insurance providers will fight them.

“It is sort of like the AIDS epidemic,” Quatrini said. “The insurance companies did not see that coming and their premiums were not set high enough for all of the claims that were made.”

“Their first reaction is going to be ‘No, ain’t paying. Because if I start paying I am going to set a precedent, and it is going to be a tremendous hit on our earnings.’ ”

Pennsylvania’s workers’ compensation law is more worker-friendly than many other states’. It includes provisions to cover both injury and occupational disease, like silicosis, a lung disease that can result from exposure to coal dust particles.

If an employer denies a claim, a worker can appeal to a judge. To prove a coronavirus claim in court, a doctor must find it is more likely than not the worker was exposed at the job. This could require proof that other colleagues were sick, evidence easily blocked through patient confidentiality laws like HIPAA, attorneys said. And the more widespread coronavirus becomes in the community, the harder it will be for workers to trace the illnesses to the workplace.

That might be easier for some professions such as health care and emergency response, where there is a greater likelihood workers contracted the coronavirus as part of their job.

“The workers’ compensation system has been stacked against workers for many years,” said David Michaels, a professor at the George Washington University School of Public Health, and the U.S. assistant secretary of labor for occupational safety and health from 2009 to 2017. “Many [policy] decisions are made in favor of the employers and insurance carriers rather than injured and sick workers.”

Because the system is so cumbersome, Michaels said, workers who have strong medical benefits and paid sick leave are less likely to turn to the workers’ compensation system, which could lessen the potential influx of claims.

While Gov. Tom Wolf has said he would ease the burden for filing unemployment claims, waiving the one-week waiting period and work search requirements, the Department of Labor and Industry has not taken measures to ease the burden for workers’ compensation claims.

Sen. Christine Tartaglione (D., Philadelphia), the minority chair of the Senate Labor and Industry Committee, said she was told by the department that easing workers’ compensation rules would “encourage” workers sickened on the job to stay home longer to boost benefits.

That’s because, currently, those exposed to the coronavirus are required to be quarantined for 14 days. Under workers’ compensation rules, absences of 7 to 14 days receive only partial benefits, while those greater than 14 days receive full benefits.

A spokesperson for the governor referred questions to the Department of Labor and Industry, which said it is “monitoring the federal legislation measures to address the pandemic” and reviewing what changes that offers to states.

Police and firefighters across the state are already gearing up for a fight over benefits.

The Fraternal Order of Police has drafted legislation, which has yet to find a sponsor in the General Assembly, that would add the coronavirus to the list of occupational illness covered under the Workers’ Compensation Act for first responders. That would allow a police officer or firefighter who has the coronavirus to be eligible for benefits without having to document how they got it.

“We can’t shelter in place, can’t quarantine,” said Les Neri, president of the Pennsylvania State Lodge Fraternal Order of Police. “By the very nature of our job it is very hard to use social distancing. We are constantly exposed to the general public and in many cases environments that are less than pristine.”

Already, Neri said, at least one police officer has contracted the coronavirus, forcing many other officers into quarantine. Some municipalities, which are responsible for paying overtime and workers’ compensation for local first responders, have said they don’t know how they will deal with the unexpected cost associated with the disease, he said.

Neri said it would be impossible for a police officer to track every doorknob, sneeze, or potential sick person encountered in the line of duty in order to prove exposure in a workers’ compensation case. Still, he is telling his officers to document what they can.

“Guys putting their life on the line don’t need one more thing to worry about,” he said. “Just like we put on the bulletproof vest, we want the legislature to have our back should we get exposed [so] we don’t have to go through a circus act to get covered.”

Dave Chiaramonte, president of the Pennsylvania Professional Fire Fighters Association, said that without the legislation, “all the employers, every municipality, will have a right to deny the missed time, the medical treatment.”

“And as we are finding out, in some cases, the medical treatment is significant,” Chiaramonte said. “We are talking about isolation, ICU stays.”

Even if the first-responder legislation ultimately becomes law, all other essential workers who get the coronavirus will be left to fight an uphill battle to prove they got it on the job.

The state says, “Don’t worry there is workers’ compensation,” said Pittsburgh attorney Larry Chaban. “But you can’t necessarily say that.”