COVID-19 Claims Under The Longshoremen’s Act

The COVID-19 pandemic created unprecedented turmoil across several sectors of the market. One of the major sectors to be impacted was workers’ compensation insurance. In some cases, workers’ compensation insurers were denying claims related to COVID on the basis that the worker could not prove how or where they contracted the illness. This led to several states passing laws that forced insurers to presume that the worker was sick and greenlight the claim. If they wanted to prove fraud, they had to do it retroactively after authorizing payment.

Those who work offshore or are longshoremen are protected by the Longshoremen’s Act which provides workers’ compensation benefits to those who have sustained injury while on the job. COVID-19 was a genuine threat to those working alongside others. In these cases, workers were asked to stay home to avoid spreading the virus to others often over a period of 10 days. That’s 10 days with no pay if you’re a longshoreman and the insurer denies your claim.

Occupational disease or accidental injury?

 For longshoremen, an occupational disease is something like mesothelioma which is contracted by exposure to asbestos, which is a barbed carcinogen that attaches itself in the lung when it’s inhaled. In this case, the exposure is related to the occupation and is considered a risk of the occupation. Hence, it is considered an “occupational disease”.

COVID-19 on the other hand is simply a generic risk to everyone, not specifically longshoremen, which means that it would not fall under the category of occupational disease. For that reason, COVID-19 infections acquired while at work are considered “accidental injuries” and not occupational risks. The key determination is that the general public is at risk for COVID-19 and not cancers associated with toxic exposure.

Accidental injuries and longshoremen’s claims 

To prove a claim under the Longshoremen’s Act, you would have to satisfy two elements. First, you would need to establish that you had COVID-19 through testing. The employer has a right to know that you actually have the condition that you claim you have before footing the bill for it. Second, you would need to establish the likelihood or even the possibility that you could have acquired the infection on the job. The employee need only establish the possibility for the presumption to be met. For example, another employee who also had the illness would be enough to move the claim forward.

At this point, the employer would have the opportunity to rebut the presumption by establishing evidence that the disease could not have been acquired at work. This is hard to do. Most claims do go forward and few are litigated on that basis. The burden is much higher for employers to deny a claim than it is for an employee to prove a claim.

Talk to a Miami Longshoremen’s Act Attorney Today 

Miami admiralty & maritime lawyer Michael F. Guilford helps maritime workers and longshoremen navigate the workers’ compensation system. Call today to schedule a free consultation and learn more about how we can help.

Source:

reuters.com/legal/legalindustry/analyzing-covid-19-claims-under-longshore-harbor-workers-compensation-act-2021-06-25/