Covid-19 Resources: Pennsylvania

The COVID-19 legislation expands the Pennsylvania Heart and Lung Act to provide 100% compensation of income for first responders who are unable to perform their duties due to COVID - 19. The final bill included an amendment that makes these benefits available to members of the Pennsylvania National Guard who contract COVID-19 or are subject to quarantine while on state active duty.

Because no other legislation regarding The Act has been enacted yet, Pennsylvania workers’ compensation judges, the Appeal Board and appellate courts have not yet rendered any specific rulings on the issue and will have to rely on case precedent to make findings on how the Pennsylvania Workers Compensation Act applies to COVID-19. Therefore insurance carriers and third-party administrators should look to precedent and similar fact patterns for pertinent decisions.

The occupational disease provisions of the act, as amended, Section 301(c)(2) of the act (77 P.S. 411(2)) allows claimants to bring claims for compensation related to occupational diseases as defined in Section 108 of the act (77 P.S. 27.1). Section 108 enumerates specific diseases that have been associated with specific workplace exposures. Section 301(e) of the act provides a “rebuttable presumption” for claims for enumerated occupational diseases set forth in Section 108. Claimants asserting claims for occupational diseases enumerated in Section 108 of the act do not need to prove that the disease was caused by workplace exposure. COVID-19 is not an enumerated occupational disease under Section 108.

Diseases not specifically enumerated in Section 108 may also be entitled to this “rebuttable presumption” under Section 108(n)’s “catch-all” provision 77 P.S. Section 27.1(n) which covers all other diseases to which:

1. the claimant is exposed by reason of his employment, and 
2. which are causally related to the industry or occupation, and 
3. the incidence of which is substantially greater in that industry or occupation than in the general population. 

It may be difficult, depending on the occupation, to establish that the incidence of COVID-19 is substantially higher in any particular industry or occupation than in the general population, so establishing Covid-19 as an occupational disease under Section 108(n) may be difficult and thus no presumption will apply.

The “standard” burden of proof associated with non-occupational disease claims under Section 301(c) (1) requires establishing a causal relationship of the disease to a workplace exposure with a reasonable degree of medical certainty. It may not be possible to precisely identify where or when the infection was acquired. Pennsylvania case law has held that if an employee can prove the specific infection was a workplace exposure, then the effects of the resulting disease are compensable.

A more interesting analysis involves employees who allege a psychiatric disturbance (mental mental claim) from potential exposure to COVID-19, or from the consequences of an involuntary quarantine. It is well-settled Pennsylvania law that with mental cases, the employee must establish that they experienced the emotional trauma during or in an abnormal working condition. A response to a perceived abnormal working condition is not compensable. The issue in these cases will be to decide whether the fear of infection is an abnormal working condition entitling the Claimant to workers compensation benefits.

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