“Can I file an Injury claim related to Coronavirus?”
For Georgians who catch the coronavirus, this seemingly simple question is actually very complicated. Our personal injury lawyers have laid out the following to help you determine whether you have a personal injury lawsuit worth pursuing after you are diagnosed with the coronavirus.
Issue No. 1: Damages:
According to recent news reports, up to 80% of people who contract COVID-19 experience only mild symptoms, similar to a cold. Fortunately, this means that you are not terribly sick. It also means that you do not have enough damages to pursue a personal injury lawsuit.
Lawsuits are expensive, so involving a personal injury attorney will probably cost you more than you can recover, unless you have been hospitalized and have a bill exceeding $50,000. Likewise, if your only personal injury was being exposed to the coronavirus without a diagnosis, you probably don’t have a claim under the law.
This blog focuses on how to handle a case where there is an actual diagnosis of coronavirus by a doctor, and medical bills exceeding $50,000.00.
Issue No. 2: Workers’ Compensation Claims:
If you catch COVID-19, and you think you caught it at work, do you have a good workers’ compensation claim? The answer for most people is “No.” But on the positive side, you might have an even better personal injury claim.
First, workers’ compensation, in Georgia, is the “exclusive remedy” for folks who get hurt at work. This means you usually cannot sue your employer, or a co-worker, even if they cause your injury. This is true even if your employer was negligent, or even reckless, in causing your injuries.
For example, if your co-worker accidentally hits you with a forklift, breaking your leg, you typically cannot file a personal injury claim against the co-worker or your employer. This is true even if your co-worker was not paying attention, or the employer failed to properly train the co-worker. Your only claim (your “exclusive remedy”) is workers’ compensation benefits. So, if you catch COVID-19 at work, does that mean you have a workers’ compensation claim?
Under Georgia Law, some “occupational diseases” are covered by workers’ compensation. However, there is a five (5) part test which makes it hard for sick employees to get benefits for an illness, even if they got infected at work. It is the sick employee’s burden of proof to satisfy each of the following 5 requirements, found at O.C.G.A. 34-9-280(2). Under that statute, an “occupational disease” means only those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee’s dependents first prove to the satisfaction of the State Board of Workers’ Compensation all of the following:
(1) A direct causal connection between the conditions under which the work is performed and the disease;
(2) That the disease followed as a natural incident of exposure by reason of the employment;
(3) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;
(4) That the disease is not an ordinary disease of life to which the general public is exposed;
(5) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.
Practically speaking, as more and more Georgians are diagnosed with coronavirus, it becomes harder to satisfy these 5 requirements. Once the disease spreads, like the flu, it becomes difficult, if not impossible, to prove that you caught it at work (as opposed to the grocery store, or the mall, or anywhere else). It also becomes harder to argue that you could not have been exposed to COVID-19 outside of work.
In Georgia, you can’t get workers’ compensation benefits for catching the flu, because the flu is found everywhere, and you could catch it in a public place just as easily as you could catch it at work. In Georgia, once a disease becomes widespread enough, the true place you caught it actually becomes irrelevant, simply because you could have been exposed to it outside work.
At this point, we feel that health care workers who routinely come into contact with coronavirus at work likely have valid coronavirus workers’ compensation claims. This includes doctors, nurses, physicians’ assistants, lab techs, first responders, EMS and anyone working in a hospital, urgent care, or doctor’s office. Likewise, anyone whose job it is to interact with people who are known to be infected with coronavirus may be covered by workers’ compensation insurance. If you are a health care worker who would like to file a workers’ compensation claim due to coronavirus, please call us at (404) 382-7439.
Issue No. 3: Personal Injury:
Given that most employees likely cannot get workers’ compensation benefits related to a COVID-19 infection, can those same employees file for a personal injury lawsuit? The coronavirus is very new, and the law does not really address this question directly.
However, the answer may depend on whether your employer intentionally or recklessly puts you in harm’s way by ignoring orders by the government to quarantine or “shelter in place.” An employer that (1) defies a government order related to quarantine, and (2) knowingly or negligently places healthy workers in with sick workers, risks a judgment that the employer was “negligent per se”. That is, a judge or jury could agree that the employer violated a law, resulting in you catching the virus.
Some employers in “essential industries” may be exempt from this risk. For example, hospitals would not be negligent by exposing doctors or nurses to the employment risk of COVID-19, because hospitals are an essential industry for fighting the virus. This is part of the reason why doctors and nurses would be more likely covered by workers’ compensation. Likewise, federal employers such as the military or the U.S. Postal Service perform essential functions. However, most employers are not in “essentially industries” and would be expected to follow normal quarantine procedures.
Also, if you are a customer who goes to a store which has refused to shut down operations in violation of the government lockdown and you can prove that you caught the coronavirus at that store, the owner may be liable. A lot of factors are important to proving your case, so call us immediately to discuss what evidence you will be required to preserve for a personal injury lawsuit.
Again, there are no concrete answers yet for people exposed to the coronavirus and whether there is potential for a personal injury lawsuit. The law has not developed to the point where anyone can give you straight answers. However, if any of the above scenarios apply to you,please call us 404-382-7439.
Issue No. 4: Health Insurance:
If you have health insurance, such as a Group Health plan or Affordable Care Act (sometimes called “Obamacare”) plan, that health insurance should cover much of your medical care related to the coronavirus. Every health care plan is different, and some have important exclusions. You may wish to call your health insurer to determine what coronavirus coverage you have, and to get pre-approval of any treatment being recommended by your doctors. Also, at least some large health insurers have pledged to waive testing fees for coronavirus.
Likewise, Congress has been considering action to eliminate co-pays and deductibles related to testing and treatment related to the virus. This legislation is changing daily as the COVID-19 outbreak continues to spread. Finally, if you are uninsured, do a Google search to find out whether your State is reopening its insurance exchange during the pandemic. This would allow you to buy health insurance now, even though we are not currently in the traditional “open enrollment period.”
Note: The fact that your health insurance pays for your care does NOT impact your ability to make an injury claim. However, if your entire claim is based on the denial of health insurance benefits related to a coronavirus hospitalization, you may need to contact an “ERISA” lawyer. Many ERISA lawyers specialize in health care and health insurance law. Morrison & Hughes does not handle health insurance claims but may be able to direct you to an experienced ERISA attorney. If you need a referral, please call 404-382-7458.
Issue No. 5: Long Term Disability Insurance, Life Insurance, and Accidental Death and Dismemberment Insurance:
There are many different kinds of insurance which potentially covered sick and disabled Georgians. If you contract the coronavirus, and it results in your total disability for 3 months or more, you may have a right to collect benefits under a long-term disability insurance plan, or an accidental death and dismemberment plan. Likewise, if a family member dies and has life insurance, the insurer should pay those proceeds out.
Unfortunately, many insurers deny claims on frivolous grounds, or simply to see whether you will raise a legal challenge. If your insurance benefits are denied, we recommend that you contact experienced legal counsel immediately, as the appeals deadlines on these claims can be very short.
Issue No. 6: Social Security Disability Insurance (“SSDI”)
Often, the people hit hardest by COVID-19 are folks with other pre-existing conditions and “comorbidities,” like diabetes, heart disease, and COPD. If you are between the ages of 19 and 67, and coronavirus causes you to both lose your job and become disabled, then you should consider filing for social security disability benefits.
To qualify, you must have worked and paid taxes during a number of quarters/years leading up to your disability, and your disability must last (or be expected to last) for at least one year.
To speak with our senior social security disability attorney, Paul Jenkins, please call 404-400-2236.
Please note that if you are still working, Mr. Jenkins cannot take your case. You can check online to determine whether you have already reached social security retirement age, which would mean that you cannot also get SSDI.