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Work Comp “Presumption” for COVID-19 Claims by First Responders

| Apr 16, 2020 | Workers' Compensation - News

The legislature passed a coronavirus relief package on April 15, 2020, which was signed into law the same day by Governor Evers. The Bill, 2019 WI Act 185, contains changes to the workers’ compensation laws, specifically for COVID-19 injuries for first responders and certain employees in the medical field.

Earlier drafts of the bill attempted to create a broad presumption of workers’ compensation compensability for first responders that contract COVID-19, with coverage for fire fighters, law enforcement, or any employee or volunteer of an employer that provides medical or emergency services if there is close proximity to patients or the public. The earlier draft did not require specific proof of direct exposure to an individual with COVID-19.

However, the legislature, currently controlled by Republicans, offered amendments and significantly narrowed the scope of this proposal that was supposed to help first responders that contract COVID-19.

Now, in order for the “presumption” to apply in Wisconsin, a worker must show:

  1. They were a “first responder”. This was narrowed to include only employees or volunteers for employers that provide fire fighting, law enforcement or medical treatment of COVID-19. (Note: Does this exclude, for example, a nurse that contracted COVID-19, but she was working with heart patients vs. those specifically with COVID-19?)
  2. The worker needs proof of COVID-19 diagnosis by a physician or positive test.
  3. The injury occurred during the public health emergency (beginning on March 12, 2020) and continuing 30 days after its end. [Note: the Act does not address retroactive application ]
  4. The worker must show exposure to a person(s) with confirmed cases of COVID-19.

If a worker shows the above, there is a “presumption” of compensability, which the work comp insurance carrier or employer can rebut with evidence that the COVID-19 exposure was caused outside of employment.

While the state Worker’s Compensation Department appears to support a broad presumption of compensability, the language itself may pose issue.  Specifically, the DWD website indicates the following about the rebuttable presumption: “[a]s it relates to COVID-19, it is assumed that a first responder’s contraction of COVID-19 injury is work-related; however, this can be rebutted by specific evidence the injury was caused by something outside of the first responder’s work for the employer.”  However, the concern with the precise statutory language (beyond narrowing the scope of applicable employees) appear to be a requirement to potentially prove exposure to another individual with COVID-19. Such proof could be difficult during a global health crisis, as well as raise health care privacy concerns. Requiring such “proof” could undercut the idea of a “presumption” of work comp coverage.

In certain circumstances, presenting proof of exposure for a first responder/medical provider possibly could occur through an employer’s own statements (admissible under certain hearsay exceptions).  For example, if a hospital issues an email or statement of documented COVID-19 cases on premises, such exposure proof may exist under the statute.  However, what if a first responder that enters a residence of an individual with shortness of breath or suspected COVID-19 and transports to a hospital, having no further contact with the individual/patient.  In the absence of that patient’s confirmed positive COVID-19 test, could the first respondent meet the “presumption” proof requirement?

As more first responders contract COVID-19, the interpretation of this law will be hugely important for whether they receive workers’ compensation benefits or not.

For those interested, the precise language is as follows:

102.03 (6) of the statutes is created to read:

102.03 (6) (a) In this subsection, “first responder” means an employee of or volunteer for an employer that provides fire fighting, law enforcement, or medical treatment of COVID-19, and who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual’s work for the employer.

(b) For the purposes of benefits under this chapter, where an injury to a first responder is found to be caused by COVID-19 during the public health emergency declared by the governor under s. 323.10 on March 12, 2020, by executive order 72, and ending 30 days after the termination of the order, and where the employee has been exposed to persons with confirmed cases of COVID-19 in the course of employment, the injury is presumed to be caused by the individual’s employment.

(c) An injury claimed under par. (b) must be accompanied by a specific diagnosis by a physician or by a positive COVID-19 test.

(d) An injury claimed under par. (b) may be rebutted by specific evidence that the injury was caused by exposure to COVID-19 outside of the first responder’s work for the employer.

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