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Community-spread study may provide COVID-19 comp defense

health care worker

States are continuing to introduce legislation to make it easier for those deemed essential workers to file workers compensation claims for COVID-19, but new research shows that most coronavirus exposure comes from community spread, not the workplace.

Despite the proliferation of COVID-19 presumption laws and executive orders, some experts are optimistic that more studies on the nature of coronavirus transmission may help employers defend themselves against comp claims for COVID-19 infections that did not originate at work.

A study of 24,000 workers conducted by four universities of four large health care systems between April and August 2020 found that the majority of COVID-19 exposures resulted from outbreaks in the community. The researchers found that health care workers who worked in a COVID-19 unit or with COVID-19 patients did not increase their odds of contraction and that there was no clear association between workplace contact with coronavirus patients and a positive antibody test.

“We’ve seen similar kinds of anecdotal data,” said Deborah Roy, Falmouth, Maine-based president of SafeTech Consultants Inc. and president-elect of the American Society of Safety Professionals. “(Employers with) good procedures in place, they have had very little transmission, if any. … It makes perfect sense that the positive cases were likely coming from the community. …These kinds of studies, as we get further into the pandemic, are going to start coming up as part of the testimony.”

“It will certainly give employers something to use when they’re trying to rebut those presumptions,” said Mike Fish, Birmingham, Alabama-based founding member of the workers compensation defense law firm Fish Nelson & Holden LLC and past president of the National Workers Compensation Defense Network. “In states such as (Alabama), it’s just going to make their defense that much stronger. It will be interesting to see what effect this report has on the handling of COVID workers comp claims and how it will be used.”

Ms. Roy said a large hospital system client of hers also found that most of its staff coronavirus cases were community-based because there was no evidence that the employees had acquired the virus from a co-worker or spread it to others at the hospital.

“If you do put into place appropriate controls for COVID-19, you should not assume that you will have transmission in the workplace,” Ms. Roy said.

In a state such as California, which has a law that presumes that health care workers who acquire COVID-19 did so within the course and scope of their employment, employers “already start at a disadvantage. … Proving or overcoming that presumption is like a Mount Everest challenge,” said Anthony Cannizzo, partner in the Los Angeles office of Manning & Kass, Ellrod, Ramirez, Trester LLP. “This (study) highlights the dangers of making automatic assumptions based on occupation alone.”

While many hospitals anecdotally have found that employees who have contracted COVID-19 did not do so through patient contact, Mr. Cannizzo said it’s unlikely that a study like this would make a difference in a comp dispute.

“I don’t think we’ve had enough time for these cases to prove a statistically significant sample size to be relied upon,” he said. “At the end of the day, I think it comes down to evidence. … There’s nothing that the employer can rely on other than doing robust investigations … that can show exposure in another context, or else you’re picking up the claim because that is what the presumption is designed to do.”

More insurance and workers compensation news on the coronavirus crisis here.