An Analytical Framework for Defending COVID-19 Claims Under LHWCA

American employers are facing never-before-seen obstacles with managing their businesses because of this national pandemic. With so many workers losing time due to either actual coronavirus infection or due to employer shut-down, the filing of COVID-19 claims under the Longshore & Harbor Workers’ Compensation Act (“LHWCA”) is inevitable. This lost time triggers an employer’s obligation to report potential accident or injury to the Department of Labor via Form LS-202 and triggers a claim to be filed with the employer’s LHWCA insurance carrier.

The question then becomes for LHWCA insurance carriers: how do we assess compensability of these claims? In addressing this question, we identified two legal issues that would need to be resolved in order to navigate how this novel disease would be treated under the LHWCA:

  1. Will COVID-19 be treated as an “accidental injury” or “occupational disease” under Section 2 of the LHWCA?
  2. How will the administrative law judges analyze this novel disease given the Section 20(a) presumption?

Accidental Injury or Occupational Disease?

From what we know about COVID-19 at present, it is caused by the coronavirus, which causes flu-like symptoms. Medically, COVID-19 is closer to the respiratory illnesses that we frequently see under the LHWCA (such as mesothelioma, asbestosis, lung cancer, and silicosis) than an orthopedic injury.  However, COVID-19 develops within a few days to a few weeks following exposure to coronavirus, while mesothelioma, for example, may take decades to develop post-exposure. Additionally, coronavirus infection is not unique to a particular type of worker, where mesothelioma would require exposure to asbestos and silicosis  would require exposure to silica.

Based on those two distinctions, we would expect that COVID-19 would not be treated similarly to traditional respiratory diseases because of how jurisprudence distinguishes between accidental injury and occupational disease.

The Benefits Review Board defined an occupational disease under the LHWCA in Gencarelle v. General Dynamics Corp., 22 BRBS 170 (1989), aff’d, 892 F.2d 173, 23 BRBS 13 (CRT) (2d Cir. 1989), as characterized by two factors:

  1. unexpectedness, i.e., an inherent hazard of continued exposure to conditions of a particular employment.
  2. gradual, rather than sudden, onset.

The Court of Appeals identified three elements that need to be present for an injury under Section 2 of the LHWCA to be considered an occupational disease:

  1. Claimant must suffer from a disease.
  2. The hazardous conditions of employment must be the cause of the disease.
  3. The hazardous conditions must be “peculiar to” claimant’s employment as opposed to employment generally.

Gencarelle, 892 F2d at 177

The Ninth Circuit agreed that occupational illnesses must be peculiar to a condition of employment and further emphasized that the key factor of occupational illness is a long latency period. Port of Portland v. Director, OWCP, 192 F.3d 933, 941 (9th Cir. 1999).

In the case of COVID-19, there is neither a long latency period, nor is there anything about the illness that would be peculiar to any individual employment. Anyone who is exposed to the coronavirus is susceptible to contracting COVID-19. Mesothelioma and asbestosis would be unique to those who worked around asbestos, and silicosis would be unique to those exposed to silica. The general public is not at risk for those occupational diseases; the general public is at risk for COVID-19. Thus, the case law would appear to treat COVID-19 as an accidental injury.

The Section 20(a) Presumption

What Does the Claimant Have to Show?

Section 20(a) provides a claimant with a presumption that the injury he sustained is causally related to his employment. Before the Section 20(a) presumption can be invoked, a claimant must make a prima facie showing that:

  1. he sustained some physical harm or pain.
  2. an accident occurred in the course of employment, or conditions existed at work, which could have caused, aggravated, or accelerated the harm or pain.

Gooden v. Director, OWCP, 135 F.3d 1066 (5th Cir. 1998)

These two elements establish a prima facie case of a compensable “injury,” as defined in Section 2(2) of the Act. The Section 20(a) presumption does not apply to the issue of whether a physical or psychological harm or injury occurred. See Devine v. Atlantic Container Lines, G.I.E., 25 BRBS 15 (1990). Nor does the presumption aid a claimant in establishing the occurrence of an accident or the existence of working conditions, which could have caused the accident. Mock v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 275 (1981).

The harm element would be satisfied with written confirmation of a positive test result that a claimant can present to his employer. However, the second element is far more subjective. For a claimant to meet this second element, there would have to be some credible and direct exposure to someone whom the claimant encountered in the course of his employment who also tested positive for COVID-19.  Certainly, if an employer is aware of the employee being exposed to coronavirus while in the service of the employer, that should be strongly considered.

What Does Employer Have to Show?

If a claimant can demonstrate a positive test result and make a credible allegation that he had some work-related exposure, then it is likely that he will be entitled to the Section 20(a) presumption. Once the Section 20(a) presumption is invoked, the burden shifts to employer to rebut the presumption with substantial evidence which establishes that claimant’s employment did not cause, contribute to, or aggravate his condition. See Peterson v. General Dynamics Corp., 25 BRBS 71 (1991), aff’d sub nom. Insurance Company of North America v. U.S. Dept. of Labor, 969 F.2d 1400, 26 BRBS 14 (CRT) (2d Cir.1992); Obert v. John T. Clark and Son of Maryland, 23 BRBS 157 (1990); Sam v. Loffland Brothers Co., 19 BRBS 228 (1987).

If an employer submits substantial countervailing evidence to sever the connection between the injury and the employment, the Section 20(a) presumption no longer controls and the issue of causation must be resolved on the whole body of proof. Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990).

Whether a claimant’s positive COVID-19 test is causally related to his employment will be a medical question. Thus, to rebut the Section 20(a) presumption, it will be up to the employer and its carrier to present expert medical evidence to evaluate claimant’s allegations of exposure and  render an expert opinion as to whether or not Claimant’s alleged exposure caused his coronavirus infection.

What Can We Conclude on the Employer Side?

As with most claims brought under the LHWCA, the claimant will have an extremely low burden to demonstrate a prima facie case of compensability due to the benefit of the Section 20(a) presumption. The burden will shift to the employer to expend the resources to rebut the presumption and ultimately defeat the claim on the basis of medical causation. However, as an accidental injury, employers and their carriers should have the benefit of shorter statutory bar periods under Section 12 and Section 13, assuming prompt filing of Form LS-202. This may deter late-filed nuisance claims.