By: Catherine M. Shiels and Samantha E. Hahn, Esq
Presently, there are 427 positive cases of COVID-19 in New Jersey and 21 patients whose test results are still pending. The State of New Jersey as well as individual Counties and municipalities have taken decisive, and unprecedented actions to avoid further spread of the virus in an effort to protect residents from continued exposure and further spread. Dine-in restaurants, casinos, indoor malls, and movie theatres are all indefinitely closed; nonetheless, for now, many New Jersey businesses remain open. Amongst the myriad of unknowns and concerns facing New Jersey employers as they navigate these uncharted waters is whether a claim for COVID-19 would be compensable under the New Jersey Workers’ Compensation Act. It is inevitable that, once the COVID-19 dust settles and life resumes to “normal”, Workers’ Compensation claims will ensue, leading to legal disputes as novel as the coronavirus itself.
Generally, in order to be successful in a claim for medical or temporary disability benefits, an employee must first prove that he was exposed to, and contracted, COVID-19 during the course and scope of his employment. This is an extremely difficult burden. Infectious diseases like COVID-19; influenza; and the common cold are so pervasive throughout the community that it is difficult, if not impossible, for patients to pinpoint the exact source of their infection. Indeed, there are professions in which a likely causal relationship may be more easily established. Airport employees; first responders; and medical professionals have all already had documented work place exposures. If an ER physician treats an infected patient and then develops symptoms of COVID-19 shortly thereafter, she would have an easier time proving the likely source of her infection. These potential claims will have to be evaluated individually and the likelihood of their success will be highly fact specific.
Additionally, it remains unclear whether employees who contract COVID-19 at the work place would have any entitlement to permanent disability benefits in New Jersey. To obtain permanent disability benefits, an injured worker must prove that the illness has caused a permanent and material loss of bodily function. Should the employee make a full recovery, or never manifest with any real symptoms, that burden would be exceedingly difficult to meet. On the other hand, should the illness be severe and result in the employee’s death, spouses and dependents would be able to proceed with a dependency claim.
Moreover, aside from the obvious claims discussed above, it is anticipated that claims may also arise from workers who may never become infected with the COVID-19 virus, or even exposed to it. Specifically, it is anticipated that employers will begin to see an increase in psychiatric claims related to the COVID-19 pandemic which could far outweigh the claims for actual exposure/contracting of the virus. An employee may allege, for instance, that the stress and fear of coming to work and contracting COVID-19 resulted in his development of a psychiatric disability; however, there were no known COVID-19 cases in the work place, building, or immediate geographical area. In this scenario, the employee is alleging that a mental stressor resulted in a mental injury. To obtain benefits in this scenario, the mental stressor must be objectively stressful when viewed realistically, and not purely the result of their own subjective interpretation of the situation. Under normal circumstances, the employee’s burden of proof in this type of claim would be high in New Jersey. Yet, “normal circumstances” do not typically involve the threat of a spreading pandemic, thus creating some uncertainty as to how the Courts will ultimately evaluate and decide these claims moving forward.
Of course, this situation is continuing to evolve, with new directives and recommendations being issued daily. In an effort to reduce potential claims, and to protect both employers and employees, we recommend that everyone follow the guidelines set out by the White House, Centers for Disease Control, World Health Organization, and state and local health departments.
 Catherine M. Shiels, Esq. is a Shareholder in GRSLB&G’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey. Catherine can be reached at email@example.com.
 Samantha E. Hahn, Esq. is a Shareholder in GRSLBG&B’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey and Pennsylvania. Samantha can be reached at firstname.lastname@example.org.