Is a workplace COVID-19 infection compensable under the LHWCA?

by Matthew H. Ammerman on March 20th, 2020

This inquiry is timely because the Port of Houston closed the Bayport and Barbours Cut terminals on March 19, 2020, because a worker tested positive for COVID-19.[1]

The critical word in the question above is “workplace.” And the answer is most likely yes if the infection was caused by workplace exposure, such as contact with an infected employee in covered LHWCA employment.

 Keep in mind that the worker will be aided by the LHWCA’s Section 20 presumption of compensability if the matter is litigated. Therefore, if an employee credibly asserts her infection was caused by exposure in covered LHWCA work, the employer must show by substantial evidence that the infection was not caused at work to rebut that presumption. If the presumption is rebutted, the worker must then prove by a preponderance of the evidence that her COVID-19 disease was caused by exposure in the workplace.

The LHWCA’s definition of “injury” includes “…occupational disease or infection as arises naturally out of such employment ….”[2] To invoke the Section 20 presumption, the worker need only make a prima facie showing “(1) that she suffered a harm and (2) that conditions existed at work, or an accident occurred at work, that could have caused, aggravated or accelerated the condition.”[3] The burden of production then shifts to the employer to show by substantial evidence—facts, not speculation--that the harm was not work-related. “Substantial evidence” is “evidence that ‘a reasonable mind might accept as adequate to support a conclusion.’"[4]

The LHWCA has been interpreted to cover infections from exposure to a disease or toxic substance at work.[5] The exposure must be in work that is covered by the LHWCA, i.e., the employee meets the LHWCA status requirement and the exposure occurred on a LHWCA situs.[6]

Therefore, in a case serious enough to warrant it, a LHWCA employer or carrier should seek the opinion of an infectious disease or environmental health expert as to whether the exposure was within a reasonable probability caused by workplace exposure. That means fact-gathering in the intake and investigation process will be very important, including finding out what other exposure to the disease at home or in the public the worker may have had and when.

Comprehensively screening workers, keeping good documentation of those screenings, and using rigorous mitigation strategies in the workplace may be a proactive measure to lower the risk of workplace exposure and liability for COVID-19.

The overall impact of COVID-19 on the maritime community will hopefully be less than the population overall. The percentage of severe outcomes in typical working-age adults (20-64) is much lower than those 65 and older.[7] Risk mitigation strategies such as social distancing rely in large part on the maritime industry to deliver goods from overseas that are in turn delivered to doorsteps across the country. Keep calm but stay vigilant, friends! [end].

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   [1] Erin Douglas, 2 Port of Houston terminals close after worker tests positive for COVID-19, Houston Chronicle, March 20, 2020; https://www.houstonchronicle.com/business/article/Two-Port-Houston-terminals-close-after-worker-15143266.php (viewed 3/20/2020).
[2] 33 U.S.C. § 902(2)(emphasis added).
   [3] Conoco, Inc. v. Dir., OWCP [Prewitt], 194 F.3d 684, 687-88 (5th Cir. 1999).
   [4] Ramsay Scarlett & Co. v. Dir., OWCP, 806 F.3d 327, 334 (5th Cir. 2015)(internal citation omitted).
   [5] Casey v. Georgetown Univ. Medical Center, 31 BRBS 147 (1997)(death from liver disease allegedly caused or aggravated by exposure to halothane gas at work was compensable); Overton v. Marmac Corp., BRB No. 06-0782 (Ben. Review Board)(March 28, 2007)(unpublished)(Hepatitis C compensable, “Employer here did not rebut the presumption  because  it  did  not  produce  substantial  evidence  that  claimant’s  hepatitis  C  was not related to his sewage exposure.”); Cf. White v. Ameri-Force, Inc., 35 BRBS 91 (ALJ)(Claimant’s pneumonia was not due to being rained on at work but was caused by a host of other factors including laryngeal dysfunction, bullous emphysema, and smoking), citing in part, McNeelly vs. Sheppeard, 89 F.2d 956 (5th Cir. 1937)(pneumonia not compensable).
   [6] Hough v. Vimas Painting Co., Inc., 45 BRBS 9 (2011)(worker who contracted histoplasmosis from exposure to bird guano while on bridge [instead of barge] failed to meet situs requirement).
   [7] “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020.” MMWR Morb Mortal Wkly Rep. ePub: 18 March 2020. DOI: http://dx.doi.org/10.15585/mmwr.mm6912e2; https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm (viewed 3/20/20).
  


Posted in LHWCA: Presumption    Tagged with COVID-19, LHWCA, CORONAVIRUS, Section 20 Presumption

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