Full Commission Issues Opinion on First COVID-19 Claim

The Full Commission days ago ruled upon the first claim for benefits associated with COVID-19 to reach them: Rountree v. Traditions Seniors Management, Inc., JCN No. VA00001742408 (June 9, 2021). The Full Commission affirmed the finding of the Deputy Commissioner that the claimant failed to meet her burden of establishing that her diagnosis for COVID-19 was either a disease or an injury by accident.

The claimant, a licensed practical nurse at a long-term care facility, contended that she had been exposed to COVID-19 at work through a co-worker. Claimant alleged that this co-worker worked in close proximity to her, coughed frequently, did not wear a mask and had been hospitalized days before. Claimant acknowledged at the hearing making weekly shopping trips to Walmart and Food Lion prior to her hospitalization.

The Full Commission held no injury by accident was established since claimant did not identify a specific incident at a reasonably definite time. Further, that no compensable ordinary disease of life was established since claimant failed to establish by clear and convincing evidence “[t]hat the disease exists and arose out of and in the course of employment as provided in Va. Code § 65.2-400 with respect to occupational diseases and did not result from causes outside of the employment.”

This case demonstrates the difficulty that most claimants will have meeting this high burden of proof particularly when there is evidence of potential non-work-related exposures. The Virginia adjuster should closely scrutinize whether claimant can clearly articulate a work exposure and whether there are potential non-work-related exposures.

The Virginia adjuster should be reminded that the Virginia General Assembly did recently pass multiple bills—House Bill 1985; House Bill 2207; and Senate Bill 1375 (all effective as of July 1, 2021) — affording a presumption for health care workers and first responders to receive workers’ compensation benefits if they are disabled or die due to COVID-19. Interestingly, these bills have a retroactive coverage date as of March 12, 2020 and will expire as of December 31, 2021. It remains to be seen whether these new laws permitting retroactive benefits will survive a constitutionality challenge. The bill for health care workers provides that those who refuse or fail to get vaccinated will not be eligible for the presumption unless a physician determines that vaccination will risk the worker’s health.

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