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Successfully litigating COVID-19 workers’ compensation cases against SEPTA

COVID-19 exposed many ugly truths. A poignant one is that the hardest working people in our society will be on the front lines during a pandemic.

Frontline/essential workers, like nurses, grocery store clerks, and public transportation workers, put their lives on the line throughout the COVID-19 pandemic, especially early on when we all had more questions than answers about COVID-19’s risk to our health.

Many of those frontline workers were union workers. They faced a new and unknown threat with steely resolve and a commitment to serve society when society needed them the most. Unfortunately, some frontline/essential workers lost their lives after contracting COVID-19, while fulfilling their essential duties.

When a worker contracts an illness on the job, such as Legionnaires’ disease or a novel SARS like COVID-19, Pennsylvania law allows for workers’ compensation benefits, assuming the claimant’s counsel can establish causation, that the disease was contracted while working. If that individual were to die as a result of that disease, then pursuant to Section 307 of the Pennsylvania Workers’ Compensation Act, that claim becomes a fatal claim, and a dependent of the decedent is entitled to fatal claim benefits.

Obviously, these cases, when it comes to causation, are challenging to win because of the burden of proof. A dependent must prove contraction of the illness on the job—a tough task when a disease is everywhere and not just primarily in a workplace. This requires counsel to develop a specific fact pattern that rules out exposure outside of the job first and almost makes the employment the default source of the illness—a process of elimination through your evidence.

Universally, employers of frontline/essential workers who died after contracting COVID-19 have refused to provide workers’ families with workers’ compensation death benefits, arguing that their workers did not contract COVID-19 during the course of their employment since it was present in all of society. Also, Pennsylvania did not adopt a presumption standard like some other states.

In two recent Pennsylvania workers’ compensation litigations involving deceased SEPTA employees who died after contracting COVID-19 at work, which were consolidated and heard by the same Workers’ Compensation Judge, the cases were tried to decision and the injured workers prevailed.

SEPTA leadership turns their backs on two dedicated workers

One of the decedents was a 63-year-old trolley mechanic based in SEPTA’s Elmwood location. He’d often pull double shifts leading up to and when the pandemic began since there was so much work to do, and SEPTA was understaffed. The last day he worked for SEPTA was on March 18, 2020. He began feeling sick the next day. He became lethargic around March 24. By March 30, he was having significant trouble breathing, so his family called an ambulance and the EMTs treated him at his home and told him to visit a doctor the next day. Later that day, he stopped breathing and could not be resuscitated. His death certificate listed COVID-19 as the cause of his death. He left behind his wife of 32 years and two adult children, one of whom had special needs and depended on the decedent and his wife for her care.

The decedent’s family claimed he contracted COVID-19 while on the job because of poor sanitary conditions at the Elmwood location and the fact there were eight employees at the location who tested positive for COVID-19 from March 22, 2020 through April 4, 2020, all of whom could have been infectious during the period in question. SEPTA denied the claim and refused to pay the decedent’s death and medical benefits, claiming he contracted COVID-19 outside the workplace. It presented no evidence to support its defense.

The second decedent was a 45-year-old mechanic based in SEPTA’s Midvale location. He often worked 12-hour days multiple times a week, pulling overtime shifts. The last day he worked for SEPTA was on March 20, 2020. The day before, he developed a cough he thought might have been caused by inhaling fumes while cleaning buses. He went to a hospital on March 20, where he was told to self-quarantine for 14 days. He went to another hospital on March 25 after telling his wife he couldn’t breathe. He later tested positive for COVID-19 and died on April 7. His death certificate listed a cause of death as septic shock and viral pneumonia, with COVID-19 causing his viral pneumonia. He left behind his wife of over 15 years and a teenage son.

As with the first decedent, this decedent’s family claimed he contracted COVID-19 while on the job because of poor sanitary conditions at the Midvale location where he was based and the fact that 28 employees there tested positive for COVID-19 between February 25 and April 26, 2020. Again, SEPTA denied the claim and refused to pay the decedent’s death and medical benefits, claiming he contracted COVID-19 outside the workplace. Again, it failed to present any credible evidence to support its defense.

The fact and expert witness testimony presented

Evidence developed through testimony and documents gathered through discovery showed a troubling lack of preventative measures in the SEPTA workplace in the early months of the COVID-19 pandemic. Fact witnesses were presented in order to establish evidence for a hypothetical question to a medical expert as to whether or not the decedent’s death was caused by exposure to COVID-19 at work within a reasonable degree of medical certainty.

The claimants’ fact witnesses, two union business agents with a combined tenure at SEPTA of over 50 years, painted a picture of “worrisome sanitary conditions” in the decedents’ respective workplaces. They had to deal with “a complete lack of contact tracing procedures, mitigative measures, and the banning of masks early in the pandemic.”

SEPTA’s fact witness, a 32-year employee who managed SEPTA’s Safety Division since 2017, was forced to admit that SEPTA had no contact tracing measures during some of the relevant time period, and that “the reporting of positive tests was only done in the most informal of manners to individual supervisors at locations, leaving a thorough documentation of the amount of COVID-19 in the workplace somewhat specious.” His testimony confirmed that COVID-19 “was at a significant level given the sheer number of positive tests.”

As to the expert medical testimony, the court found the testimony of the claimants’ expert, Dr. Michael Silverman, to be more credible than that of the Independent Medical Examiner, Dr. Robert McCunney.

First, Dr. Silverman’s CV/qualifications listed many articles, speeches, and seminars concerning COVID-19 and how it is transmitted. In contrast, Dr. McCunney’s CV/qualifications focused on respiratory disease in connection with work-related exposure to carcinogen materials—not infectious or communicable diseases. Second, Dr. Silverman’s testimony was more specific and articulate about the timelines and reasoning supporting his opinion that the claimants contracted COVID-19 at work. In “stark contrast,” according to the Workers’ Compensation Judge, Dr. McCunney was equivocal and noncommittal, and misunderstood the foundational facts on which he based his opinions.

All told, claimants presented enough evidence to show that during the early days of the pandemic, the claimants’ primary outside exposure to anything, including COVID-19, was through their work. Almost all the rest of their time was at home with their families. In both cases, neither set of family members tested positive for COVID-19 until AFTER the decedents had tested positive.

Relying on the testimony of the claimants’ lay and expert medical witnesses, the judge found that both decedents died as a result of a COVID-19 infection contracted while working as essential workers. As such, SEPTA must pay fatal claim benefits to their widows.

Another employer held accountable for ignoring their legal obligations

Say what you want about the origins of COVID-19, government shutdown and masking orders, and whatever other COVID-19-related topics you may feel strongly about, but in the early days of the pandemic, we knew little about COVID, yet many employers asked their frontline/essential workers to come to work and perform their tasks like normal despite the then-unknown risks and effects of COVID.

Both decedents did so. They then gave their lives as a result. For reasons only known to SEPTA’s management and legal counsel, the organization turned its back on two loyal workers who made the ultimate sacrifice while providing for their families. Shame on SEPTA, especially since a $500,000 death benefit existed which SEPTA refused to tender. Thus, we were forced to litigate the cases for approvals for 30 months for the widows and their children. They had endured enough pain, but were forced to endure more until they finally got justice.

​​Samuel H. Pond is the managing partner of Pond Lehocky Giordano LLP, the largest workers’ compensation and social security disability law firm in Pennsylvania. He can be reached at spond@pondlehocky.com.

This article was first published in Volume 2023–2024, Issue 2, of the Philadelphia Trial Lawyers Association’s Verdict publication.

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