On July 1, 2021, Covid-19 amendments to the Virginia Workers’ Compensation Act went into effect. For qualifying health care workers and first responders, the revisions establish a rebuttable presumption that Covid-19 is a compensable occupational disease under the Act. Different requirements and retroactivity provisions apply to the two categories of workers.
The new provisions are extremely complex. If you are a health care worker or first responder with disability due to Covid-19, or your qualifying family member died from the virus, talking with a lawyer is highly recommended. Our experienced Virginia workers’ compensation attorneys at Renfro & Renfro are fully prepared to assist with your claim. We do not charge for your first consultation and case evaluation, so there’s no reason to hesitate to contact us.
Prior to enactment of the recent amendments, Virginia health care workers and first responders who suffered disability and families of workers who died from the virus faced substantial obstacles in obtaining workers’ compensation benefits. The primary reason is the definition of occupational disease in § 65.2-400 of the Virginia Code as a “disease arising out of and in the course of employment but not an ordinary disease of life to which the general public is exposed outside of the employment.” This definition determines the compensability for an occupational disease under the Virginia Workers’ Compensation Act.
Published statistics of the Virginia Workers’ Compensation Commission demonstrate the difficulties encountered in attempts to get workers’ comp benefits for the virus. In 2020, the Commission reported 11,598 Covid-19 claims filed. Of that number, only 230 claimants received benefits.
The Covid-19 amendments revise Virginia Code § 65.2-402.1 to create a presumption that Covid-19 is an occupational disease from employment for health care workers and first responders, unless proven otherwise. Separate requirements and retroactivity apply to the two categories of workers.
The presumption of compensability as an occupational disease for health care workers applies to death or disability occurring on or after March 12, 2020, and prior to December 31, 2021.
For death or disability from March 12, 2020, to July 1, 2020, the worker must have been diagnosed by a medical provider and received treatment for Covid-19. For death or disability on or after July 1, 2020, and prior to December 31, 2021, medical treatment and a positive test are both required.
If a health care worker’s employer offered a vaccine, and the worker refused or failed to get vaccinated, the employee is not eligible for the presumption, unless the worker’s physician determined in writing that the vaccine would pose a significant risk to the worker’s health. In other words, in the absence of a physician’s declaration, failure or refusal to undergo immunization disqualifies the worker from the presumption.
When a worker meets the criteria and timeframe established in the provisions, a presumption arises that Covid-19 is a compensable occupational disease for the employee. However, the employer’s insurance company can overcome the presumption by a preponderance of evidence to the contrary to support denial of the claim.
Different provisions relating to the presumption apply to firefighters, emergency medical services personnel, law enforcement officers, correctional officers, and regional jail officers who die or experience disability resulting from Covid-19. One significant difference is that the date range is shorter for first responders, covering only from July 1, 2020, to December 31, 2021.
A second difference is that the presumption applies only if the first responder received medical treatment for Covid-19 and diagnosis by a licensed physician after a positive test. Additionally, in the case of eligible first responders, failure or refusal to get a vaccine does not disqualify the worker from the presumption.
One provision is the same for both categories of workers. If a first responder qualifies for the presumption, the employer’s insurance company can overcome the presumption by a preponderance of contrary evidence and deny the claim on that basis.
Applying the new provisions of the Act requires complex analysis of a worker’s circumstances. Even if a worker meets the qualifying criteria, the employer’s insurance company may aggressively attempt to rebut the presumption that the virus is an occupational disease. Any health care worker, first responder, or family of a deceased eligible worker who may qualify for workers’ compensation benefits under the amendments should reach out for assistance from a knowledgeable Virginia workers’ compensation attorney at the earliest time possible. Talking with a lawyer even before filing a claim under the new provisions is the best way to fully protect your right to benefits.
At the Richmond law firm of Renfro & Renfro, our dedicated workers’ compensation lawyers help clients with all types of Virginia workers’ comp claims, including claims under the Covid-19 amendments to the Virginia Workers’ Compensation Act. We welcome you to contact us for a free consultation