Members Alan G. Brackett and Daniel P. Sullivan are now co-writing an “Attorney Analysis” column for Reuters Legal News. Their first article, “Analyzing COVID-19 claims under the Longshore & Harbor Workers’ Compensation Act,” was published on June 25, 2021. You can read an excerpt below and download the PDF to read the entire article.
Analyzing COVID-19 claims under the Longshore & Harbor Workers’ Compensation Act
American employers have faced unprecedented adversity in keeping their businesses sustainable for the past year due to the world-wide novel coronavirus pandemic. Significantly, thousands of workers have lost time due to being infected themselves with the coronavirus. Among them are workers covered under the Longshore & Harbor Workers’ Compensation Act. Such workers include traditional longshoremen, off-shore oil workers and overseas defense-base contractors, who have begun filing COVID-19 claims for wage benefits and medical benefits under the Act and its extensions.
Employers and their insurance companies are now faced with many questions, beginning with “How do we assess these claims?” and “How do we defend these claims?’ To date, few COVID-19 claims have been litigated, and as of the publication of this article, no administrative law decisions associated with COVID-19 claims have been rendered.
In anticipating how these types of claims may play out before the Office of Workers’ Compensation Programs and the Office of Administrative Law Judges, there are two key legal issues that will impact how this novel disease would be treated under the Longshore & Harbor Workers’ Compensation Act:
- (1) Will COVID-19 be treated as an “accidental injury” or “occupational disease” for purposes of defining an “injury” under the Act?
- (2) How will courts analyze the statutory presumptions under the Act?
Accidental injury or occupational disease?
As we have learned since March 2020, the novel coronavirus primarily presents as flu-like symptoms. Medically, COVID-19 more closely resembles respiratory illnesses that we frequently see under the Longshore & Harbor Workers’ Compensation Act (such as mesothelioma, asbestosis, lung cancer, and silicosis) rather than the more “traditional” work-related orthopedic injury. However…