Virginia’s statutory presumption that a COVID-19 disability of a first responder is work-related, which went into effect July 1, 2020, does not require that the employee be diagnosed with COVID-19 on or after that date, a state review panel has made clear in reversing a city’s denial of benefits for a police officer.
The statute established a presumption that COVID-19 causing the death or disability of firefighters, emergency medical services personnel, law-enforcement officers, correctional officers, and regional jail officers is an occupational disease compensable under the Workers’ Compensation Act.
The reversal was by a review panel of the Virginia Workers Compensation Commission for a Virginia Beach law enforcement officer who was first diagnosed with COVID-19 on March 31, 2020. Thereafter, she exhibited signs and symptoms of COVID-19 needing medical treatment, and required long term medical treatment. She became totally disabled in connection with her COVID-19 infection and disease through May 26, 2020. She has continued working a light duty position for the city since May 27, 2020 to the present.
She filed a claim for medical benefits and wage loss benefits on August 19, 2021, alleging that she had sustained a compensable occupational disease of COVID-19.
Her employer, the city of Virginia Beach, denied the claim and she appealed.
Her appeal to a deputy workers’ compensation commissioner was heard last August. The city argued that there was no occupational disease and that her March 31, 2020 diagnosis of COVID-19 fell outside of the statutory presumption.
On January 12, 2023, the deputy commissioner ruled in favor of the city, finding that the statutory presumption did not apply and that the claimant failed to prove with clear and convincing evidence that her COVID-19 infection was contracted in the course of her employment and not a result of outside exposure.
On appeal of the deputy commissioner’s ruling, the law enforcement officer maintained that the statutory presumption should apply in her case and that a clear and convincing evidentiary burden of proof standard was inappropriately applied.
Now, a review panel has found that the statutory presumption might apply to the claimant and that it is not eliminated based upon the date of diagnosis. The panel cited a prior case involving a police officer where the commission made it clear that that the statute does not require that the COVID positive test or results be after July 1, 2020.
The presumption applies to any death or disability occurring on or after July 1, 2020, and prior to December 31, 2021, that is caused by infection from the COVID-19 virus. It says that the claimant must have received a diagnosis of COVID-19 from a licensed physician and presented with signs and symptoms of COVID-19 that required medical treatment— but it does not place a timeline on these conditions.
The review panel said that presuming that the date of diagnosis was the underlying grounds for the finding that the presumption did not apply to the claimant, it reversed this interpretation of the statute. It remanded the case to the deputy commissioner to reconsider the claim.
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