Waldorf Attorney Matt Trollinger Published in MD Association for Justice Magazine
Questions about how COVID-19 will impact workers’ compensation settlements are being raised nationwide. Recently, Waldorf attorney Matt Trollinger co-authored an article about the potential legal ramifications of the 2020 pandemic on injured workers.
“We spend one-third of our lives working, so it’s not a stretch to understand that many, many workers acquired COVID-19 at work,” says the article, published in the Maryland Association for Justice’s Trial Reporter. It goes on to explain the challenge of pursuing a coronavirus claim as insurers try to avoid making payments to people with valid on-the-job COVID claims.
The Maryland workers’ compensation system was developed so that employees would have medical, wage, and disability assistance if they suffered a work injury or were diagnosed with an occupational disease. The challenge with COVID is determining whether claims should be filed as accidental injuries or occupational illnesses, according to Trollinger and Byron Warnken, the article’s other author.
“On its face, ‘occupational disease’ would seem the logical choice for a COVID-19 claim. But filing COVID-19 workers’ compensation claims as accidental injury claims may bring better success,” it says.
That’s because a part of the legal definition of an occupational disease states that a job-related illness must be “consistent with those known from exposure to a biological, chemical, or physical agent” that is associated to the type of job held (MD Code, Labor and Employment, § 9-502).
A widely publicized example of an occupational disease is mesothelioma, an incurable form of cancer that is cause solely by exposure to asbestos. Mesothelioma is exclusively found in employees (or family members of employees) who worked in industries where asbestos was heavily used as insulation. Carpenters, plumbers, shipbuilders, shipyard workers, and even hairdressers may have come into contact with the deadly asbestos fibers, which can go on to cause the fatal cancer in some people. In those cases, exposure to the hazardous agent is clear.
By contrast, COVID-19 is everywhere. Filing a coronavirus claim as an occupational disease could mean running up against arguments that the nature of the job did not put the employee at a greater risk than he or she would have had by picking up groceries at the supermarket.
With the accidental injury approach, lawyers might stand a better chance of success, according to Trollinger and Warnken. These types of claims must arise out of and during the course of regular employment.
“This type of injury is one in which a worker can point to a specific event or moment when he or she was injured,” the article says. That doesn’t mean the employee has to remember the precise date of exposure in order to be compensated. (Applied Indus. Techs. V. Ludemann, 148 Md. App. 272, 811 A.2d 845 (2002). If an attorney can prove that exposure to COVID-19 was more likely than not to have resulted in the illness while working, the claim may be more successful if filed an accidental injury.
All of that remains to be seen, as relatively few cases have been filed with the Maryland Workers’ Compensation Commission so far. Trollinger Law will continue to follow the developments closely.
About the Authors
Matt Trollinger is the lead litigation attorney representing clients in workers’ compensation and personal injury matters throughout Maryland and Washington, D.C. He is the founder of Trollinger Law, LLC, with locations in Waldorf and Frederick.
Byron B. Warnken, managing attorney of Warnken, LLC, is a workers’ compensation and personal injury attorney in the Baltimore area. He has argued cases throughout Maryland, including in Maryland’s Court of Special Appeals and Maryland’s Court of Appeals. He has also had success before the Fourth Circuit Court of Appeals.