The law in Virginia identifies two types of diseases that may be covered by workers’ compensation benefits. The first is known as “occupational diseases”. These are diseases to which members of the general public are not exposed to outside of employment. Occupational diseases include Pneumoconiosis, Silicosis or Asbestosis.
Ordinary Diseases of Life
The second type of disease that may be covered by workers’ compensation benefits are “ordinary diseases of life”. These are diseases to which members of the general public are exposed outside of work. Because of the possible exposure outside of the employment, the burden of proof for ordinary diseases of life is higher. The required burden of proof is “clear and convincing evidence,” rather than the normal preponderance of the evidence standard. The worker will be required to prove the following:
- That the disease exists and arose out of and in the course of the employment, and did not result from causes outside of the employment and
- That one of the following exists:
- The disease follows as an incident of an occupational disease or
- The disease is an infectious or contagious disease contracted in the course of one’s employment in a hospital, sanitarium or laboratory or nursing home or while otherwise engaged in the direct delivery of health care or
- The disease is characteristic of the employment and was caused by conditions peculiar to the employment.
Since the Coronavirus can be contracted outside of the employment, the Virginia Workers’ Compensation Commission will most likely deem it an “ordinary disease of life” requiring the higher burden of proof. For most workers, proving that the Coronavirus was caused by “conditions peculiar to the employment” and did not arise from causes outside of the employment will be extremely difficult. This is especially true given that the Coronavirus has a 14-day latency period and can survive on a variety of surfaces for days.
Those in the health care profession may be able to argue that it was contracted in the course of their employment in a hospital, nursing home, laboratory, etc. However, health care professionals will still be required to prove that the virus did not result from causes outside of the employment. Again, this will be difficult to do given the latency period of the virus and the fact that it could be contracted from almost anywhere.
To date, the Virginia Workers’ Compensation Commission has not addressed a claim seeking benefits for the Coronavirus. Given the higher burden of proof and the highly contagious nature of the virus, an employee will have a very difficult time successfully litigating a Coronavirus claim.
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