Covid, 'long covid,' and workers compensation

The workers’ compensation system will be dealing with coronavirus-spawned claims for a long time to come

By Robb P. Enslin

Last year, less than a month into the covid-19 pandemic, the Minnesota Legislature enacted an amendment to a section of the Minnesota Workers’ Compensation law pertaining to “occupational disease.”¹ The amendment, subdivision 15(f) 1-6, created a “rebuttable presumption” that “an employee who contracts COVID-19 is presumed to have an occupational disease arising out of and in the course of employment” if the employee meets two criteria. First, the employee must be what has come to be known as a “frontline worker.” Second, the employee must have a documented positive test or a diagnosis by a qualified medical professional based on the employee’s symptoms.

Minnesota is not alone. Every state in the U.S. currently has some form of workers’ compensation framework, and several states have enacted laws or issued executive orders specific to covid-19 infection, though there is wide variance between the laws in the various states. California and Wyoming, for instance, cover all workers under their covid-19 legislation, while states like Illinois, New Jersey, and Vermont cover all workers who meet their states’ “essential” designation, such as grocery store employees. Minnesota, like Wisconsin, has limited its coverage to frontline health care workers and first responders.²

Few would question the wisdom of this type of legislation. After all, our police, fire, and health care workers have been on the frontlines of the pandemic for over a year now. The crisis required quick action—especially in its early days—to ensure that confusion and conflict between frontline employers and employees over sick time or vacation days would not disrupt our response to unprecedented times. Now we find ourselves facing difficult and unexpected questions, many of which are as novel as the virus itself.

Perhaps the most complicated and controversial question particular to the legal field is the impact of “long covid”—the growing collection of post-viral symptoms being reported by patients weeks or months after their initial infection. The debate has already begun regarding the validity of these complaints, as demonstrated in recent back-and-forth in the pages of the Wall Street Journal.³ Symptoms with purely subjective manifestations (such as “brain fog” and chronic fatigue) are being linked to covid infection, but the research is only just beginning. Workers’ compensation judges will soon find themselves in the unenviable position of weighing medical opinions that rely on exactly the same evidence but reach diametrically opposed conclusions on causation.

Who is entitled to the rebuttable presumption?

For workers’ compensation attorneys practicing in Minnesota, the questions over coverage begin with the very first clause of the amendment, which defines who is entitled to the rebuttable presumption. Employees entitled to the rebuttable presumption are limited to the following:

licensed peace officers;
firefighters, paramedics, and EMTs;
certain employees of state or municipal detention or treatment facilities;
health care providers, nurses, or “assistive employees” employed in a health care, home care, or long-term care setting with direct covid-19 patient care or “ancillary” work; or
persons providing child care for first responders and health care workers.

This does not mean people who fall outside of those categories cannot file a claim for an occupational disease if they contract covid-19 at work, but they are not entitled to the assumption that their covid-19 was work-related.

But even with respect to those occupations listed in the statute, there is room for disagreement. For instance, the terms “assistive employee” and “ancillary work” are not specifically defined. It’s no stretch to assume any employee who worked in a hospital or health care setting during the early days of the pandemic would count themselves in one of the covered categories, while employers and insurers would seek more concrete definitions.

This is no small matter, since the Minnesota Supreme Court, in Linnell v. City of St. Louis Park,⁴ found that statutory presumptions are “…something more than a procedural device initially relieving the employee of proving causal relationship between (the conditions of) his occupation and the disease which results in his disability…” and instead place a “substantial burden” on the employer to show the disease was caused by “recognized causative factors which are not related to (the employee’s) occupation.” In short, whether the presumption applies to the employee determines who has the burden of proof, and it is no surprise that plaintiff’s attorneys and insurance defense attorneys are jockeying to either include or exclude broad swaths of workers who fail to fit neatly in a “frontline” category.

Occupational disease vs. ordinary diseases of life

The term “occupational disease” has been on the books in Minnesota workers’ compensation law for 100 years and has its own long and complex history. For those unfamiliar with workers’ compensation or the term occupational disease, here is a (very) brief summary: Minn. Stat. 176.011 subd. 15(a) defines occupational disease as a “…physical disease arising out of and in the course of employment peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment…” Perhaps the best known examples of occupational diseases are asbestosis, silicosis, and mesothelioma (all caused by exposure to asbestos), although there are many others.

“Occupational disease” is contrasted with “ordinary diseases of life to which the general public is equally exposed outside of employment…[,]” which are generally not compensable under Minnesota’s Workers’ Compensation law.

As it applies to covid-19, if an employee is a frontline worker in Minnesota and has tested positive for covid-19 (or was diagnosed by a licensed physician, physician’s assistant, or APRN), it is automatically presumed to be an “occupational disease” and the employee should be entitled to benefits.

The benefits provided by Minnesota’s workers’ compensation law cover more than just health care. If a work injury or occupational disease causes a worker to miss time and suffer wage loss, those wages may be covered. If a work injury or occupational disease results in permanent disability, long-term economic support may be available.

This last point is especially relevant considering our preliminary and incomplete understanding of the long-term effects of covid-19 infection. For instance, a study published in the Journal of the American Medical Association (JAMA) found that 78 of 100 covid-19 patients had abnormal cardiac MRIs two months after getting sick, and 60 of 100 had MRIs showing heart muscle inflammation.⁵ Another study published in Nature Medicine indicated that 60 percent of patients showed signs of minor lung inflammation on a CT scan.⁶ Most concerningly, this study was focused on patients who were completely asymptomatic. The list of potential complications of covid-19 infection only continues to grow, now including thrombotic complications, myocardial dysfunction and arrhythmia, acute coronary syndromes, acute kidney injury, gastrointestinal symptoms, hepatocellular injury, hyperglycemia and ketosis, neurologic illnesses, ocular symptoms, and dermatological complications.⁷

In early May of this year, Mayo Clinic released a study of 100 covid-19 patients in its new Covid-19 Activity Rehabilitation Program (CARP)—established to study and treat patients with post-covid issues—which showed patients suffering from post-covid symptoms were younger (mean age 45), healthier (75 percent had not been hospitalized for their initial covid-19 infection and most had no pre-existing co-morbidities), and more likely to be female (68 percent). Symptoms included mood disorders, fatigue, and perceived cognitive impairment.

Attorneys in our firm, for example, are already beginning to see workers’ compensation insurers denying coverage for these poorly understood long-term impacts of covid-19 infection. No one is shocked by these denials. After all, how can anyone—attorneys, insurance claims adjusters, or workers’ compensation judges—make a decision on the relationship between an employees’ health issues and their previous covid infections when we are only beginning to study the subject? The National Institutes of Health has recently announced that $1 billion will be allocated to investigate “long covid”—known at NIH as “PASC” (post-acute sequelae of covid-19 infection)—but this research has barely started.⁹ (Note: Mayo Clinic uses the term “post-covid-19 syndrome,” or PCS.)

Asymptomatic carriers

The question of workers’ compensation coverage for PASC for employees with a confirmed diagnosis is complicated enough, but what about those employees who were never tested because they never had symptoms? We have become all too familiar with the term “asymptomatic carriers”—those individuals who exhibit no symptoms during active covid-19 infections. It is still not fully known how many people may be asymptomatic carriers, but a January 2021 study in the Annals of Internal Medicine estimated that at least one-third of covid-19 positive individuals are asymptomatic.¹⁰

Since early indications are that asymptomatic patients are not immune from the long-term PASC impacts of the disease, workers may soon find themselves struggling to show evidence of an infection that they never knew they had in order to meet the requirements of Minnesota’s statute.

The options are limited at this point. According to the CDC, a person who has been infected may continue to test positive for up to three months. So an employee who may be suffering from PASC may still test positive if tested in time. But for those who have missed their window for a positive test, things are more complicated. An antibody test will determine if a person had a prior infection but cannot determine when. Further, most people cannot simply go and get a covid-19 antibody test. Luckily, there is an easy way to get an antibody test that has the dual benefit of being good for society as well: Donate blood. Many blood banks are performing free antibody tests on all blood donations. If your blood contains covid-19 antibodies, you may be notified and given the option to donate your plasma for research.¹¹

Is an antibody test showing that you had covid-19 at some point enough to meet the requirements of Minn. Stat. 176.011 subd. 15(f)(2)? The language of the statute requires that “the employee’s contraction of COVID-19 must be confirmed by a positive laboratory test…” The question of whether an antibody test taken weeks, months, or even years after initial infection would fulfill this requirement seems destined for the Workers’ Compensation Court of Appeals, if not the Minnesota Supreme Court.

To complicate matters further, those who have been vaccinated may test positive for antibodies, potentially destroying any evidence of a previous infection that may entitle them to benefits. Will frontline workers who failed to get tested before getting the vaccine be out of luck if they later suffer from PASC?

What happens after December 31, 2021?

The Legislature recently removed one potential source of litigation by changing the original sunset date of May 1, 2021 to December 31, 2021. As such, questions regarding the bounding of the statute and what impact it could have on employees and insurers won’t arise (at least in the courts) until 2022. But the questions will be there: What is the rationale for bounding the rebuttable presumption differently than Gov. Walz’s emergency declaration? What is the rationale for bounding it at all, if the research shows covid-19 causes such serious long-term effects? Should this be a permanent fixture in Minnesota’s workers’ compensation framework, like mesothelioma?While the “rebuttable presumption” created by the amendment is critical for those who faced the pandemic head-on for the last year, it is not necessary for filing a claim for workers’ compensation benefits. Employees will still be able to make a claim without the presumption statute, albeit with a higher burden of proof. How the courts will handle these claims is yet unknown, but case law provides some hints.

Two cases that appear analogous to PASC situations are Olson v. Executive Travel MSP, Inc.,¹² and Baker v. Farmer’s Union Marketing and Processing.¹³ In Olson, an employee contracted influenza type-b while traveling abroad for work and suffered severe long-term and permanent complications. In Baker, an employee at a pet food processing plant contracted histoplasmosis from coming in contact with turkey and chicken carcasses and also developed long-term serious health conditions as a result of the illness. In both cases, the employee was ruled to be entitled to workers’ compensation benefits. Yet, strangely, in both cases, the courts held that the benefits were granted as a result of “personal injuries” arising out of and in the course of employment, and specifically not as “occupational diseases.” Whether that distinction has an impact on how future courts choose to follow or diverge from these precedents in PASC situations is a mystery.

Regardless of whether the window really does “close” as of December 31, 2021, the occupational disease statute grants employees three years to commence an action once the employee has “knowledge of the cause” of their injury or impairment. This rule was established by the Minnesota Supreme Court in a 1982 case, Bloese v. Twin City Etching, Inc.¹⁴ The Court found that the three-year clock begins to tick when the employee has “sufficient information concerning the nature of an injury or illness, its seriousness, and its probable compensability to move a reasonable person to make inquiry concerning his rights.” This virtually ensures lawyers and judges in Minnesota’s workers’ compensation field will be struggling with questions of the compensability of PASC complications for years to come.