Background:

On March 13, 2020 Missouri Governor Parson issued Executive Order 20-20 declaring a state of emergency due to the COVID-19 pandemic.

On March 18, 2020 Governor Parson issued Executive Order 20-04 which authorized executive agencies to waive or suspend certain regulations and statutes to avoid their interfering with Missouri’s response to COVID-19, this Order applies to the Labor and Industrial Relations Commission. The Governor then ordered the Commission to prepare and adopt a rule which creates a presumption of compensability in favor of certain First Responders exposed to COVID-19.

On April 7, 2020 the Commission created and filed Rule 8 CSR 50-5.00 (“Rule”), and based upon the date of the receipt of the Rule by the Secretary of State, the Rule will become effective on April 22, 2020, barring any substantive revisions, and will currently expire on February 1, 2021.

The Rule allows for retroactive application for incidents which occurred before April 22, 2020.

Authority:

The Governor has the authority granted by Sec. 44.100 RSMO to declare a state of emergency and to take action to include temporarily suspending existing laws, rules, and regulations during the state of emergency.

Rule 8 CSR 50-5.00 Applies Where:

A First Responder, defined as a law enforcement officer, firefighter, or an emergency medical technician, as such occupations are defined in Sec. 287.243 RSMO, (the “Line of Duty Compensation Act”), who has contracted or has been quarantined for COVID-19, is presumed to have an occupational disease arising out of and in the course of their employment.

The presumption applies where the First Responder: 1) is quarantined at the direction of the employer due to suspected COVID-19 exposure, 2) displays symptoms of COVID-19, 3) receives a presumptive positive COVID-19 test, 4) receives a COVID-19 diagnosis from a physician, or 5) receives a laboratory-confirmed COVID-19 diagnosis.

The presumption shall apply retroactively to all First Responders who otherwise meet the requirements of the Rule as set out above.

However, the First Responder is not entitled to the presumption if: a subsequent medical determination establishes by clear and convincing evidence that the First-Responder did not actually have COVID-19, or contracted or was quarantined for COVID-19 resulting from exposure which was not related to the First Responder’s employment.

It will clearly be the employer’s and insurer’s burden of proof to present such clear and convincing evidence since this will be an affirmative defense.

The Rule is scheduled to expire on February 1, 2021, unless subsequent orders shorten or lengthen the term of the Rule.

Points:

The Rule is similar to statutes, rules, or regulations which are being adopted in many states, but on its face is much more restrictive than, say, the emergency rule adopted in Illinois which clearly applies not only to First Responders but to all healthcare providers and a long list of crucial employees of essential business employers.

The Line of Duty Compensation Act, Sec. 287.243, on its face, covers air ambulance pilots, ambulance registered professional nurses, emergency medical technicians, firefighters (paid or volunteer), and law enforcement officers.

The apparent limitations due to reference to the coverage of Sec. 287.243 may be deceptive since there is language in that statute which might be broadly interpreted by Administrative Law Judges, the Commission, and the appellate courts, to address the emergency by extending the coverage of the Act perhaps beyond the coverage which the legislature intended.

The Rule creates constitutionality issues, such as its retroactive application to pre-April 22, 2020 exposures, and perhaps others. Raising constitutional issues though is difficult in a workers’ compensation context. The Division of Workers’ Compensation (“Division”) and the Commission lack jurisdiction to decide constitutionality issues. Therefore, the matter would have to be tried at the Division level, then be appealed to the Commission, and then appealed from the Commission, perhaps as far as the Missouri Supreme Court. A declaratory judgement action is a possibility but those often fail due to issues over standing and ripeness. Thus, we will likely live with this Rule for the foreseeable future.

Insurers and self-insurers will certainly complain that they didn’t agree to insurer liability for a pandemic, but workers’ compensation policies and workers’ compensation self-insurance trust agreements do not contain the exemptions, referring to catastrophic events, such as pandemics, which are prevalent in non-workers’ compensation policies.

Living With Rule 8 CSR 50-5.00:

Appreciate if any employee is exposed to and contracts a contagious or communicable arising out of and in the course of employment they are eligible for occupational disease benefits. Sec. 287.067.7. RSMo.

Appreciate many of these First Responder situations would clearly be compensable even without the benefit of the Rule’s presumption.

Understand identifying the when and where of the exposure is very elusive for a pandemic or endemic (E.g. flu) disease. This is particularly difficult when we consider the latency period of COVID-19 - but that’s why the Rule was created.

Appreciate control of initial medical care is difficult as most employees will present to the ER or to a family physician for testing and treatment. However, if further follow up care is required, an employer/insurer aware of the case should take control of the care as to minimize medical expenses and to address lost time considerations.

Consider the later need to identify experts required to address issues such as medical causation, need for future medical, and temporary and/or permanent disability.

Pick your battles carefully, the cards are heavily stacked against the defense.

Assume this is a liberal Rule and will be liberally interpreted by the Division.

The Rule Accelerates the Need To Answer Quests Such As:

-What will the cost to employers and insurers be? We know that COVID-19 can be deadly, but the majority of those who appear to contract the disease require little or no treatment.

-What will be the most likely outcome of an infection which falls between those two extremes?

-Will there be re-infections and reoccurrences?

-Is there immunity post-infection?

-Will there be viable claims for physical and/or mental stress?

-Will there be a need for future medical?

-Is there a possibility of permanent damage to organs which will support evidence of permanent partial disability exposure?

-And many others.

Comment:

COVID-19 creates unique challenges for all workers’ compensation stakeholders. For every answer there will be two new questions which arise. We’ll all get through this together.