Greetings, my colleague Ryan Mirian in our Nashville office was kind enough to put this together regarding compensability in TN. Ryan’s contact info is below, and also below are the GA and FL Tips.
Coronavirus disease (COVID-19) presents an interesting issue for Tennessee Workers’ Compensation claims with respect to causation. Given the increasing incidence of community spread, the current lack of prevalent testing, and the possibility that infected individuals are presently asymptomatic and continuing to engage in their regular work duties, litigating the compensability of COVID-19 in a Tennessee Workers’ Compensation claim would appear to present a host of challenges. Specifically, pinpointing the source of one’s infection with COVID-19 within the workplace and/or one’s work activities would likely necessitate a degree of speculation on the part of any authorized treating physician. While Tennessee currently only has a limited number of COVID-19 cases reported, it is highly likely that COVID-19 emerges as an issue that Tennessee Workers’ Compensation judges will have to address in short order given the projections about how widespread this disease may eventually become and the tangible impact a COVID-19 diagnosis would have on an employee’s ability to work.
Pursuant to Tenn. Code Ann. § 50-6-102(14), a compensable injury in Tennessee is one that is “by accident . . . arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee[.]” Moreover, an injury is deemed accidental “only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence[.]” Tenn. Code Ann. § 50-6-102(14)(A). An injury arises primarily out of and in the course and scope of employment “only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes[.]” Tenn. Code Ann. § 50-6-102(14)(B).
Judicial precedent makes clear that the element of causation is satisfied when the “injury has a rational, causal connection to the work.” Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn. 1992). Further, the mere presence of an employee at the place of injury because of the employment is not enough, as the injury must result from a hazard peculiar to the work or be caused by a risk inherent in the nature of the work. Blankenship v. Am. Ordinance Sys., 164 S.W.3d 314, 354 (Tenn. 2005). As a result, “an injury purely coincidental, or contemporaneous, or collateral, with the employment . . . will not cause the injury . . . to be considered as arising out of the employment.” Jackson v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).
With the above in mind, it would appear at first glance that relatively few types of employment would potentially lend themselves to a finding of compensability as to a COVID-19 diagnosis. Specifically, healthcare professionals, law enforcement officers, fire fighters, and other first responders who routinely interact with individuals in need of medical treatment would appear to be at a higher risk of contracting COVID-19 as part of their regular work activities. However, as previously discussed, given the projected increase in community spread, the present lack of testing, and the possibility that people afflicted with COVID-19 are asymptomatic and engaging in their normal work/life routines, it is possible that more and more individuals beyond the professions just mentioned will find themselves in a situation that lends itself to contracting COVID-19. Regardless, any compensable diagnosis for COVID-19 would necessitate a finding by an authorized treating physician that the disease arose primarily out of (i.e. more than 50%) and in the course and scope of one’s employment. Given the unexpected way COVID-19 has spread throughout the world in the past few months, it would again appear difficult for anauthorized treating physician to avoid speculating as to causation and render an opinion to a reasonable degree of medical certainty that the COVID-19 diagnosis is primarily related to one’s employment.
Notwithstanding all of the above, COVID-19 is certainly a condition all Tennessee employers should monitor closely given the possibility of litigation that may ensue via a workers’ compensation claim. Such a recommendation is only compounded by the fact that Tennessee Workers’ Compensation judges are becoming increasingly “employee-friendly” when ruling as to the compensability of an alleged injury at an Expedited Hearing, where the burden of proof for getting medical and/or temporary benefits awarded is far lower than it would be at an eventual Compensation Hearing. While an authorized treating physician’s causation opinion would carry a presumption of correctness as to causation pursuant to Tenn. Code Ann. § 50-6-102(14)(E), that opinion could still be rebutted via an independent medical examination or expert medical opinion obtained by the employee. Given the direction many of the Bureaus are headed in Tennessee, litigating the issue of compensability for a COVID-19 diagnosis at an Expedited Hearing could end up being a toss-up if the employee offers any expert medical proof to support his or her position. As such, taking proactive measures around the workplace, such as requesting sick individuals stay at home until healthy, stressing that all employees exercise a heightened degree of vigilance with respect to cleanliness/hygiene, and offering employees the option of working remotely, would appear to be the best line of first defense for employers to take during the early stages of this rather fluid outbreak of COVID-19.