Appeals Panel Reverses COVID-19 Presumption Case
The appeals panel has reversed the decision and order of an administrative law judge who found that a deputy sheriff detention officer suffered a compensable injury resulting in his death under § 607.054 of the Texas Government Code. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 211026-S, decided August 20, 2021, remanded the case to the ALJ to apply the statutory presumption found in § 607.0545 of the Government Code.
The deceased employee had been employed with the county for 27 years and worked as a deputy sheriff detention officer in the County Jail. The claimant beneficiary testified that the decedent began to have a dry cough and tested positive for COVID-19. The employee’s condition rapidly deteriorated and he passed away at his house two days after the date of injury. An autopsy report concluded that the employee died as a result of complications of COVID-19, with hypertension and cardiomegaly contributing.
The ALJ heard testimony and argument regarding the applicability of the presumption found in § 607.054 of the Texas Government Code. Thereafter, the ALJ issued a decision and order concluding that: (1) the employee did sustain a compensable injury, in the form of an occupational disease resulting in his death; (2) the claimant beneficiary was a proper legal beneficiary of the decedent and is entitled to death benefits; and (3) the claimant beneficiary is entitled to reimbursement for burial benefits. The self-insured employer challenged the decision by appealing to the appeals panel.
The appeals panel rejected the ALJ’s reliance upon the § 607.054 presumption to support compensability.
Section 607.054 of the Government Code provides, 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 stated that the claimant beneficiary satisfactorily met the requirements of Section 607.054 of the Government Code by proving that COVID-19 is a disease or illness of the lungs or respiratory tract and proving that there is a statistically positive correlation between COVID-19 and the decedent’s employment. We disagree. Although the articles in evidence discuss a prevalence of COVID-19 in police officers, the evidence in the record is insufficient to prove a statistically positive correlation between the decedent’s COVID-19 infection and his service as a detention officer. In addition, Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.
The appeals panel observed, however, that SB 22 created an new presumption to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians.
Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a detention 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)(2)(B) of the Government Code reflects that the presumption would apply to a deceased person who is diagnosed by a test authorized, approved, or licensed by the United States Food and Drug Administration (Section 607.0545(b)(2)(A) of the Government Code) or by another means, including by a physician. Section 607.0545(b)(3)(B)(iv) of the Government Code further provides, in pertinent part, that the presumption only applies to a detention officer who was last on duty not more than 15 days before the person died if COVID-19 was a contributing factor in the person’s death. 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 detention officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.
The appeals panel noted that when addressing an argument based on a rebuttal under § 607.058 an ALJ 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 detention officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred.
The appeals panel also observed that a rebuttal to a presumption under § 607.0545 may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a detention officer resides.
The appeals panel reversed the decision of the ALJ and remanded the case to be analyzed under the provisions of § 607.0545 and § 607.058.
The ALJ in this case incorrectly determined that the presumption set forth in Section 607.054 of the Government Code applied to this claim. However, S.B. 22 makes clear that the presumption set forth in Section 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect.
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On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death.
The interesting thing about the remand is that SB 22 became effective after the CCH was held and a decision had been issued in this case. This signals the appeals panel’s understanding that any COVID-19 case currently in the dispute resolution process should be evaluated using § 607.0545.
FOLIO
