Appeals Panel Reverses Another COVID-19 Presumption Case
The appeals panel has reversed the decision and order of an administrative law judge who found that a county patrol officer did not suffer a compensable injury in the form of COVID-19 under § 607.054 of the Texas Government Code. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 211005, decided August 25, 2021, remanded the case to the ALJ to apply certain newly enacted provisions of the Government Code in accordance with the appeals panel’s earlier decision in Appeals Panel Decision No. 211026-S.
The claimant worked as a senior patrol officer for a Texas County. He testified that he had been dispatched to respond to a call regarding a death in a private residence. The claimant testified that he had been notified prior to his arrival at the call that the residents of the home had tested positive for COVID-19. The claimant stated he spent 3 to 4 hours at the scene. The next day, according to the claimant, he traveled by airplane for a short vacation. Two days after the claimant’s alleged work exposure, and after experiencing a fever, cough and body aches, the claimant tested positive for COVID-19.
The parties argued at the CCH about the applicability of Section 607.054 of the Texas Government Code. That section states, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician.
In her discussion of the evidence the ALJ correctly noted that the record contained no authoritative evidence addressing any statistical correlation between the claimant’s COVID-19 infection and his service as a peace officer. The ALJ stated that for this reason the evidence failed to raise a presumption that the claimant’s COVID-19 infection was contracted in the course and scope of his employment.
The ALJ also found that the claimant’s employment did not place him at greater risk of a COVID-19 infection than employment generally. Accordingly, the ALJ determined that the claimant did not sustain a compensable injury, in the form of an occupational disease.
The claimant appealed the ALJ’s decision and order. The appeals panel’s opinion focused on the effect that a recently passed bill, S.B. 22, had on the compensability analysis of the claim. The panel analyzed the legislation as follows:
S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a peace officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a peace officer if the peace officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.
Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a peace officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(3) of the Government Code further provides, in pertinent part, that the presumption only applies to a peace officer who was last on duty not more than 15 days before the date the person is diagnosed with COVID-19 using a test described by Section 607.0545(b)(2)(A) of the Government Code.
Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a peace officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.
Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal must make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a peace officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a peace officer resides.
S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22 may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.
The appeals panel concluded that the ALJ had correctly determined that the presumption set forth in Section 607.054 of the Government Code did not apply. However, citing Appeals Panel Decision 211026-s, the appeals panel wrote that the presumption found in Section. 607.0545 did apply to claims, like this one, that were pending at the time the law went into effect.
The appeals panel noted that S.B. 22 had become effective one date after the CCH was held in this case. Under the terms of the legislation, because this claim was pending at the time S.B. 22 went into effect, the appeals panel reversed the ALJ’s determination that the claimant did not sustain a compensable injury in the form of an occupational disease and remanded the case to the ALJ with instructions to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code as well as to make a determination of whether the claimant sustained a compensable injury in the form of an occupational disease.
FOLIO
