WPPA

Worker's Comp & COVID-19

​Updated March 30, 2020

Can a law enforcement officer receive worker’s compensation benefits after being diagnosed with the coronavirus?

March 10, 2020

As news of the growing coronavirus pandemic continues to dominate the headlines, the prospect of being infected with the illness is a growing concern for many throughout our country. Large events are being canceled, some people are being advised to limit their travels, and companies in Wisconsin and elsewhere are encouraging their employees to work from home. Obviously, those precautions don’t apply to the men and women that serve in law enforcement, who are still expected to do their jobs—regardless of the public health risks that may exist. As such, it goes without saying that officers are at higher risk of getting sick.

In light of that reality, it seems likely that some officers—whether now or in the weeks and months ahead—may find themselves wondering what will happen if they become infected.  More specifically, some will want to know whether they might be eligible to receive worker’s compensation benefits to cover their medical costs and any compensation missed due to their inability to work. 

First, if you have no idea what the coronavirus is because you avoid the news like, well, the plague (pun intended), here is a link to the CDC with up-to-date information about the coronavirus, its symptoms, and the status of the government’s response to this global outbreak.   

Second, if you find yourself unmoved by the news of the spreading coronavirus and are only curious as to the answer to this question, then you’ll be disappointed that the answer is, at best, an unsatisfying “maybe.” If, however, you are interested in learning more about how the law is likely to treat an application for worker’s compensation benefits involving the coronavirus, this should shed some light on the subject.

Over the years, the court has expanded the list of diseases considered compensable (that is, eligible for benefits) under the Worker’s Compensation Act. For example, in 1942, the state supreme court held that “any disease that is caused by an employee’s work becomes compensable.” This ruling expanded the definition of a compensable disease to include even minor, temporary illnesses.  

Generally, a person applying for worker’s compensation benefits has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation. The court has further held that it is the Labor Industry Review Commission’s (LIRC) duty to deny benefits if it finds that a legitimate doubt exists regarding the facts necessary to establish a successful claim. As such, if there is credible evidence to support LIRC's denial, it’s unlikely that a court will overturn that decision on appeal. 

That is not to say that any doubt is a legitimate doubt because the commission says so. According to the court, the commission cannot exercise its judgment arbitrarily and capriciously, and some kind of conspicuous inconsistency must exist in the factual record before the commission can entertain the question of legitimate doubt. In fact, the court has explicitly said that the commission cannot simply rely on its “cultivated intuition” alone.

The primary criterion that needs to be satisfied in any claim for worker’s compensation benefits is whether the individual’s employment caused an injury or disease. Many times, that’s a relatively easy thing to prove. If, for example, you were chasing a suspected criminal and twisted your knee, there would probably be little question that your job as an officer caused your injury.
But how does one prove that their job caused them to be infected with an illness? In answering that very question in a case before it in 2007, LIRC relied upon a state supreme court decision from 1927 which said:

It is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed and concerning which witnesses can acquire positive knowledge. Under such circumstances, [LIRC] or the court can base its findings upon a preponderance of probabilities or of the inferences that may be drawn from established facts.

The court attempted to clarify that holding in 1945 when it said:

The term “preponderance of probabilities” is doubtless not a wholly accurate one. Indeed, it is literally impossible to have a preponderance of probabilities. All that the court meant by the use of the term was that in a given situation the inferences are strong enough to point to a fact as a probability and not a speculative possibility. So stated, it is merely another way of saying that the inferences are in such shape as to constitute substantial evidence to sustain the findings of the commission.

In other words, the law in Wisconsin requires that employees prove beyond a legitimate doubt that it’s more likely than not that their jobs caused them to become infected with a disease or illness. Neither LIRC nor employees applying for benefits will be permitted to rely upon speculation. For example, an officer applying for worker’s compensation benefits after being diagnosed with the coronavirus will likely have to show, at a minimum, some police activity that involved an infected individual or that occurred at a location uniquely susceptible to this illness, such as a nursing home. Even then, due to the tenuous framework used to evaluate these cases, it is likely they will be very challenging.  

In the end, any officer’s claim for worker’s compensation benefits as a result of the coronavirus will all come down to the evidence available, and whether that evidence makes it more likely than not that the officer’s duty was the cause of the infection. Are the facts substantial enough to show that an officer’s service probably caused him or her to be infected? Is there any evidence that supports another credible explanation? While a great deal of uncertainty surrounds this global health crisis, the answers to these questions will likely decide cases involving this issue.

In light of the foregoing, the WPPA offers the following guidance to help officers protect themselves and their families in the event that an officer is stricken with this illness:

  1. Document, document, document every possible, likely, or confirmed exposure to the virus. This includes calls for service to a facility or location where the illness/virus is suspected or confirmed—as well as contacts with individuals who are exhibiting symptoms of the infection (dry cough, fever, shortness of breath) whether or not they have received a confirmed medical diagnosis. Obviously, if the location—such as a hospital ER or a nursing home—already is known or reported to be serving infected persons, that information should be documented.
  2. How to document? Include the relevant facts in any official report that you are required to make, and also take the time to note it yourself in any personal log or report. If it’s an official police department report, that’s the best, but even personal notes—made at the time of the incident—can have evidentiary value in making a claim.
  3. What to document? Location (type of facility, on the street, vehicle, enclosed space, etc.); whether it’s known, reported, or suspected that persons with corona/COVID-19 are/were present; proximity of contact; length of time of contact. Was the person out of the country recently? Where? Have they been in contact with other persons or locations where corona/COVID-19 has been reported or suspected?
  4. Medical Info: Whether you were informed that there was already a diagnosis of corona/COVID-19 for that person/location. Or, in the absence of a formal diagnosis—especially since testing is still lagging—note such things as “I observed the person had a fever, a dry cough, and was complaining of shortness of breath, which I recognized as symptoms of infection by the corona/COVID-19 virus, according to published guidance by the United States CDC.” 

While we sincerely hope that none of you will ever need to use this advice, members are advised to heed this guidance and to distribute it widely to the officers in your agency. The documentation suggested here will help us and our members in substantiating these complex claims. 

If you have any questions about this topic or any other, please feel to contact us. If you haven’t already done so, learn more about the WPPA’s Extended Legal Protection Plan, which provides legal coverage to enrolled members for cases involving worker’s compensation claims, among others.