I initially sent out a short blog on Covid-19 a couple of weeks ago. As you are well aware, since that time things have moved very quickly, and we are now under a state of emergency. The numbers of those diagnosed in South Carolina keep growing daily. As of Sunday at 3:33, DHEC reported 195 confirmed cases of Covid-19 in South Carolina, and 3 related deaths. As I mentioned a couple of weeks ago, please do not rely on social media for your updates; please go to a trusted source, like DHEC. Also, please do not repost or share information from an untrustworthy source, even to debunk the information.
This blog will briefly explain Covid-19 and will then discuss the applicable law in South Carolina, followed by recommendations for preventing and handling claims related to Covid-19.
What is Covid-19?
Strictly speaking, coronavirus is “a type of common virus that infects humans, typically leading to an upper respiratory infection (URI).” See medicinenet.com. MERS and SARS are two types of coronaviruses. The epidemic that has recently effected us worldwide is Covid-19. Covid-19 is a novel type of coronavirus that was first identified in 2019 in Wuhan, China. According to the CDC, the first reported case of Covid-19 in the United States was on January 21, 2020. The CDC updates the current number of reported cases in the United States on its website every weekday at noon.
Patients with Covid-19 have mild to severe symptoms including fever, cough, and shortness of breath. Anyone experiencing these symptoms who has also been in contact with a person with Covid-19 or has recently been in an area where Covid-19 has been found, should seek medical advice. The elderly or those with pre-existing health conditions are more likely to have severe complications, including pneumonia, multi-organ failure, or death.
Many large companies and government entities are now shut down or employees are working remotely, but certainly any employer who deals with the public at large, including health care facilities, schools, transportation companies, or restaurants could be more likely to receive exposure claims related to Covid-19.
South Carolina Workers Compensation Law on Viruses
In South Carolina, an injured employee can bring a workers’ compensation claim as an injury by accident (under S.C. Code Ann. §42-1-160), an occupational disease (under S.C. Code Ann. §42-11-10), or a repetitive trauma injury (under S.C. Code Ann. §42-1-172). I will describe each of these in very general terms; various defenses could apply to each.
An injury by accident is what most people generally think of as a workers’ compensation injury; a slip, trip, or fall would be brought as an injury by accident. A repetitive trauma injury occurs when an employee injures a body part from doing some sort of repetitive task; carpal tunnel syndrome directly caused by repetitive typing is the most commonly known type of repetitive trauma claim. An occupational disease is a disease that an employee contracts arising from the hazards of the job; a typical example is asbestosis from asbestos exposure. An employee who contracts Covid-19 would be responsible to choose how to file a workers’ compensation claim, but very likely the claim would be filed as either an injury by accident or an occupational disease; the Workers’ Compensation Commission could conceivably find a claim compensable as an occupational disease but not as an injury by accident, or vice versa.
Occupational Disease v. Injury By Accident
According to Section 42-11-10 of the South Carolina Workers’ Compensation Act, the occupational disease must be “due to hazards in excess of those ordinarily incident to employment and  peculiar to the occupation in which the employee is engaged” in order to be compensable. In addition, the statute specifically excludes an occupational disease that is “a contagious disease resulting from exposure to fellow employees or from a hazard to which the workman would have been equally exposed outside of his employment.” At this time, we of course do not have any case law to give us guidance on how the Workers’ Compensation Commission will specially address the Covid-19 outbreak.
The difficulty for a claimant in bringing an occupational disease claim will be whether the claimant can demonstrate both that Covid-19 is peculiar to their occupation and that it is not something he or she would be equally exposed to outside of work. Importantly, regardless of whether the exposure is analyzed under the accident or occupational disease framework, an employee still has the burden of proof to show by a preponderance of the evidence that the condition is causally related to the employment. Opinions on causation are almost exclusively deferred to medical experts. However, physicians routinely rely on evidence from the employer that is relevant to the causation opinion. If an employee provides notice of a potential claim, investigation should be completed to memorialize important evidence relevant to causation and potential exposures.
If the Commission views the compensability question in terms of an accident, the claimant would arguably have to prove by a preponderance of the evidence that he or she had Covid-19 exposure at work and that the exposure at work more likely than not caused them to contract the virus in contrast to the countless other exposures the person might have had outside of work. This could prove difficult for a claimant.
Handling Potential Claims
Regardless of the jurisdiction, compensability will turn on a combination of factual and medical considerations. Currently, the medical community in association with governmental agencies appears to be performing extensive investigation into the transmission of Covid-19. These investigations may seem presumptive on the issue of causation. However, if the spread of the disease is such that it is beyond the capability or capacity of the government to determine the actual transmission, then it will be more difficult for an employee to establish causation.
Whether to accept or deny these claims should be handled on a case by case basis, depending on a variety of factors. Certain specific scenarios may result in compensable claims for Covid-19. For example, if someone contracted the disease after having traveled to Wuhan at the time of the initial outbreak on a work related business trip, it is quite possible such a claim would be compensable. If we see a high number of cases from a single employer (greater than the average seen in the community) after one or more traveled to an area identified as having widespread transmission, these claims could potentially be deemed compensable. Further, we may see compensable claims for health care workers providing treatment for those suffering from the disease where the disease is otherwise fairly contained. Conversely, in a situation where there are multitudes of patients diagnosed with the virus and there are cases that have occurred outside of the health care facility where the employee works, it will be harder for the employee to show causation. Absent facts that clearly establish the disease was contracted at work, such claims should be denied.
When considering a possible claim, the medical evidence will also be critical. An employee who can show a diagnosis and a possible link to employment is going to be required to produce medical evidence establishing a causal relationship. An employee’s own testimony that he or she was working and that they were working with a person who has the virus should not be sufficient to establish that relationship. The employee will need to produce competent medical evidence showing a causal link.
One of the most important ways to limit your exposure for a potential Covid-19 claims will be to thoroughly investigate any alleged exposure. When investigating a possible coronavirus case, there are several considerations you will want to address:
(1) Has the employee traveled to an area where there is widespread transmission of the disease and was that travel work-related?
(2) Has the employee had direct contact with someone who has recently traveled to an area where there is widespread transmission and was that contact work-related?
(3) Does the employee work in a healthcare setting where Covid-19 cases have been seen or treated?
(4) Can the employee identify a specific incident or accident that resulted in direct contact with bodily fluids of someone known or suspected to have Covid-19?
(5) Is any healthcare provider able to relate the diagnosis of Covid-19 to a specific event or transmission at work?
(6) Has the CDC or other governmental entity investigated the claim to establish when and how the disease was transmitted?
It is important to ensure that any claim of Covid-19 exposure at work is carefully and thoroughly investigated from a factual perspective. Each claim should be evaluated on its own merits to assess whether it is compensable; there is no broad rule that will apply to every Covid-19 claim across every setting. In addition, the compensability of claims will likely be impacted by the changing evolution of the virus, its transmission, and how widespread the outbreak becomes.
Current Impact on the Workers’ Compensation Commission
On March 21, 2020, the Workers’ Compensation Commission announced that all live hearings will be suspended through May 1, expect in the case of emergencies. The Commission’s office is closed, with the majority of staff working from home. The Commission will handle claims via email, telephone or Court Call (a remote court appearance platform). The Commission clarified on March 23 that if Court Call is used, each party will incur the costs of $59.50 for each individual connection. Anything that cannot be submitted electronically must be mailed to the Commission’s office. We will notify clients individually as to the impact this will have on their claims.
It seems clear at this point that, at the very least, the effort to manage the spread of coronavirus will have a significant impact on the judicial process. Please contact us with individual questions or concerns.