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Enhanced Legal Presumptions Do Not Make Sense For Pandemic-Related Claims

By on April 27, 2020 in Legislation, NJ Workers' Comp with 0 Comments

Proposed Senate Bill 2380 sponsored by New Jersey Senate President Stephen Sweeney seeks to create a new legal presumption of compensability for “essential employees,” including public safety workers and virtually all health care workers who file COVID-19 workers’ compensation claims.  This proposed presumption would require the Judge of Compensation to presume that any COVID-19 claim for public safety and health care workers must be found to be work related unless the employer could rebut the claim by “clear and convincing evidence.” There exists no presumption in the New Jersey Workers’ Compensation Act that requires an employer in any circumstance to rebut a claim by clear and convincing evidence.  There is a very good reason for that: the standard would be impossible to meet for employers, and it would in effect make employers strictly liable for all COVID-19 cases, whether the claims are causally related or not.

There are both legal and practical reasons that enhanced legal presumptions do not make sense in the context of this pandemic.  Consider the legal issue first. For an occupational disease to be compensable it must be proven to arise out of the employment and be produced by causes which are characteristic of or peculiar to work under N.J.S.A. 34:15-31.  But the COVID-19 virus is ubiquitous. It spreads wherever people congregate:  including churches, grocery stores, post offices, and crowded beaches.  Millions of people have the virus and don’t know it.  COVID-19 claims are not like traditional occupational disease claims such as black lung among coal miners or Legionnaire’s Disease among workers in an infected building who breathe in the bacteria. These kinds of occupational disease claims clearly meet the test of being peculiar to a particular work environment.

COVID-19 illnesses arise when the virus spreads in any close human contact, whether it is through work or outside work.  We all understand how easily the virus can be spread in any life circumstance.  A New Jersey family had a gathering in late February that led to the tragic death of four family members from the coronavirus. Other family members also got sick.  Sixty choir members in the State of Washington met to practice on March 6, 2020.  They sanitized and kept their distance from one another.  Within days 45 of 60 choir members became ill because the virus was spread through the air when they sang. 

Hospitals, health care providers and public sector employers, their carriers and excess carriers, are now inundated with COVID-19 claims.  This is putting enormous financial strain on public sector and hospital budgets at a time when Americans have expressed profound concern about rising health care costs, high taxes, and unfunded pension plans.  These claims are now beginning to work their way into the workers’ compensation systems of each state.  The good news is that there are already adequate laws In New Jersey to deal with COVID-19 claims without creating an ultra-high legal presumption for a virus that is in every state and every country. 

Judges understand that health care workers and public safety workers often work in close proximity to people who may be infected.  They may also have non-work exposures as well.  In assessing whether any COVID-19 virus arises from work, workers’ compensation judges draw on their expertise in sorting out complex causation issues, factoring in work and non-work exposures.  For example, they evaluate claims for alleged cancer from second-hand smoke, Lyme disease, lead exposure, and other environmental claims. In doing so, workers’ compensation judges use a more probable than not legal standard. In fact, there already is a presumption in the 2019 Thomas Canzanella Twenty First Century First Responders Act that shifts the burden to employers to disprove certain claims involving public safety workers by the more probable than not standard.  The proposed coronavirus presumption not only shifts the burden of proof to employers but it imposes an extremely high legal presumption on employers that directly conflicts with the 2019 legal presumption created under the Thomas Canzanella law.  

Public policy is important, and the wrong policy is to vastly increase the financial burden on health care, government and their carriers by making virtually all COVID-19 claims compensable through an unrealistic new legal presumption.  Carriers did not collect pandemic premiums from their insureds. Requiring government, health care employers and their carriers to pay all COVID-19 claims regardless of causation will add create enormous financial pressure on governments, taxpayers, health care providers and the insurance industry. These are the unintended consequences that can be foreseen by proposed S. 2380.  Instead of creating an unrealistic legal presumption that makes a bad situation worse, elected leaders should focus on creating the equivalent of the current federal Paycheck Protection Program to help injured workers and to alleviate the insurance burden on health care, government and carriers.

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About the Author

About the Author:

John H. Geaney, Esq. is a Shareholder and Co-Chair of Capehart Scatchard's Workers' Compensation Group. Mr. Geaney began an email newsletter entitled “Currents in Workers’ Compensation, ADA and FMLA” in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The Manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA Manual also distributed by NJICLE. If you are interested in purchasing “Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers,” please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association. He is one of two firm representatives to the National Workers’ Compensation Defense Network.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School.

Mr. Geaney was selected to the “New Jersey Super Lawyer” list (2005-2017, 2021 in the area of Workers’ Compensation). Only 5% of attorneys are selected to “Super Lawyers” through a peer nominated process based on independent research and peer evaluation. The Super Lawyers list is issued by Thomson Reuters. For a description of the “Super Lawyers” selection methodology, please visit https://www.superlawyers.com/about/selection_process.html

For the years 2022-2024 Mr. Geaney was selected for inclusion in The Best Lawyers in America® list in the practice area of Workers’ Compensation Law - Employers. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America® methodology can be viewed via their website at https://www.bestlawyers.com/methodology.

*No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Hamilton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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