- Efficient and Adequate Benefit Distribution SystemThe summary and remedial social insurance system of workers’ compensation was caught largely unprepared to respond to the challenges of the COVID pandemic.1 Although there have been 10 pandemics in the last 245 years, COVID is the first major viral epidemic that has involved workers’ compensation systems.The program, conceived over a century ago, was a compromise between Labor and Industry, to keep costs low and benefits capped, while maintaining summary benefit distribution. The compensation act’s goal is to maintain an efficient and adequate administrative benefit distribution system for work related accidents and exposures. The rates of compensation are correlated to wages the employee earned at the time of accident or exposure.
- Collateral and Competing FactorsThe compensation system’s present efforts are compounded by limitations and restrictions imposed by the ongoing public health emergency. The massive COVID public health effort being undertaken to cope with treatment, and virus containment in a depressed economic environment, makes the process of benefit distribution even more problematic.
I. A Long and Disruptive Evolution
II. Similarities Between Asbestos and COVID Claims Remedies
B. Intentional Tort Claims
III. Similarities Between Asbestos and COVID Claim Proofs
IV. The Federal Funding of Claims
1 Gelman, Jon L., "Is the Workers' Compensation System Ready for the Covid-19 [Coronavirus] Virus?" (April 20, 2020).
Available at SSRN: DOI: 10.2139/ssrn.3581770, Updated 7/22/2020.
2 In 1924, Dr. Cooke in England reported the case of a woman who died of severe lung scarring after having spent 20 years in a textile factory weaving asbestos. Br Med J. 1924 Jul 26; 2(3317): 140-2, 147. doi: 10.1136/bmj.2.3317.147.
3 I.J. Selikoff J. Churg E. C. Hammond, “The Occurrence of Asbestosis Among Insulations Workers in the United States,“ Biological Effects of Asbestos, 132 Annals of the New York Academy of Science 1 (December 1965) pp. 139-155. https://doi.org/10.1111/j.1749-6632.1965.tb41097.x
7 Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161501 A.2d 505 (NJ 1985).
8 “California Counties and Cities Announce Groundbreaking $305 Million Settlement of Landmark Lead Paint Litigation,” The People of the State of California v. Conagra Grocery Products Company, et al., Case No., 1-00-CV-788657 (July 17, 2019).
9The large number of persons employed in occupations with frequent exposure to infection and disease underscore the importance of all workplaces developing risk response plans for COVID-19. Given the proportion of the United States workforce exposed to disease or infection at work, this analysis also serves as an important reminder that the workplace is a key locus for public health interventions, which could protect both workers and the communities they serve. Baker MG, Peckham TK, Seixas NS (2020) Estimating the burden of United States workers exposed to infection or disease: A key factor in containing risk of COVID-19 infection. PLoS ONE 15(4): e0232452. https://doi.org/10.1371/journal.pone.0232452 ;
“….airborne transmission of COVID-19 is possible, and that infectious aerosol may be produced without coughing.” The Infectious Nature of Patient-Generated SARS-CoV-2 Aerosol, medRxiv preprint doi: https://doi.org/10.1101/2020.07.13.20041632, this version posted July 20, 2020.
11 Enforcement Policy for Face Masks and Respirators During the Coronavirus Disease (COVID-19) Public Health Emergency (Revised); Guidance for Industry and Food and Drug Administration Staff, May 2020, https://www.fda.gov/media/136449/download
12 Klompas M, Baker MA, Rhee C. Airborne Transmission of SARS-CoV-2: Theoretical Considerations and Available Evidence. JAMA. Published online July 13, 2020. doi:10.1001/jama.2020.12458
13 Galiatsatos, Panagis, “What Coronavirus Does to the Lungs,” Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs, Last visited May 10, 2020.
National Suicide Prevention Lifeline: We can all help prevent suicide. The Lifeline provides 24/7, free and confidential support for people in distress, prevention and crisis resources for you or your loved ones, and best practices for professionals. For help call: 1-800-273-8255.
Zhang Chenxi, Yang Lulu, Liu Shuai, Ma Simeng, Wang Ying, Cai Zhongxiang, Du Hui, Li Ruiting, Kang Lijun, Su Meilei, Zhang Jihui, Liu Zhongchun, Zhang Bin, Survey of Insomnia and Related Social Psychological Factors Among Medical Staff Involved in the 2019 Novel Coronavirus Disease Outbreak, 11 Frontiers in Psychiatry 386, (2020), DOI=10.3389/fpsyt.2020.00306, https://www.frontiersin.org/article/10.3389/fpsyt.2020.00306
“International Severe Acute Respiratory and Emerging Infections Consortium (ISARIC)’” 5/6/20, https://media.tghn.org/medialibrary/2020/05/ISARIC_Data_Platform_COVID-19_Report_6MAY20.pdf
US FDA cautions against use of hydroxychloroquine or chloroquine for COVID-19 outside of the hospital setting or a clinical trial due to risk of heart rhythm problems, https://www.fda.gov/drugs/drug-safety-and-availability/fda-cautions-against-use-hydroxychloroquine-or-chloroquine-covid-19-outside-hospital-setting-or, current as of 4/30/2020.
“Doctors race to understand rare inflammatory condition associated with coronavirus in young people” AAAS Science, 5/21/20 https://www.sciencemag.org/news/2020/05/doctors-race-understand-rare-inflammatory-condition-associated-coronavirus-young-people;
“Young adults are also affected by Kawasaki-like disease linked to coronavirus, doctors say,” Washington Post 5/21/20 https://www.washingtonpost.com/health/2020/05/21/misc-c-kawasaki-coronavirus-young-adults/
Toxicity. US FDA Hand Sanitizers | COVID-19, https://www.fda.gov/drugs/coronavirus-covid-19-drugs/hand-sanitizers-covid-19, current as of April 7, 2020.
14 Terrorism Risk Insurance Act of 2002, Pub.L. 107–297, Nov. 26, 2002, 116 Stat. 2322. 15 USCA § 6701, Pub.L. 109–144, §§ 2 to 8, Dec. 22, 2005, 119 Stat. 2660 to 2662, Pub.L. 110–160, §§ 2 to 5, Dec. 26, 2007, 121 Stat. 1839, Pub.L. 112–158, Title V, § 502(e)(2), Aug. 10, 2012, 126 Stat. 1260, Pub.L. 114–1, Title I, §§ 101 to 106, 107(e), 111, 112, Jan. 12, 2015, 129 Stat. 3, 8, 10.
15 COVID Risk Level Dashboard, (Harvard Global Health Institute, Harvard's Edmond J. Safra Center for Ethics, Rockefeller Foundation, CovidActNow, Covid-Local, CIDRAP) Live Updates), https://globalepidemics.org/key-metrics-for-covid-suppression/
16 Coronavirus (COVID-19) - The workers' compensation community should support TTSI, https://workers-compensation.blogspot.com/2020/07/coronavirus-covid-19-workers.html, July 20, 2020.
Over half of U.S. companies plan virus contact tracing for employees: survey, Reuters, 7/22/20. https://www.reuters.com/article/us-health-coronavirus-usa-contacttracing/over-half-of-u-s-companies-plan-virus-contact-tracing-for-employees-survey-idUSKCN24N2SN?utm_source
17 “We need to test all people with symptoms and their contacts, which means at most 3% of our tests should turn out positive. We need to identify as many infected as possible, and 70% to 90% of their contacts, to isolate or quarantine them. If we do all of that really fast (within a day or so), it might be enough to control the epidemic. We should hire lots of people to do that, and also use technology.” Thomas Pueyo, Coronavirus: How to Do Testing and Contact Tracing - medium.com https://medium.com/@tomaspueyo/coronavirus-how-to-do-testing-and-contact-tracing-bde85b64072e
18 Insurance companies battle their clients over the coronavirus, AXIOS, July 23, 2020. https://www.axios.com/insurance-companies-vs-business-coronavirus-946b8cd3-ac29-401f-b548-98ef7dcaa0c1.html ;