Organizational and legal problems of recognizing an event as an insured event and paying the insured amount to employees of the forensic medical examination bureau as a result of infection with a new coronavirus infection

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JUSTIFICATION

Health workers are the backbone of health care systems, the driving force behind achieving universal health care coverage and achieving sanitary and epidemiological well-being throughout the world.
A new infection, COVID-19, has shown the importance of medical personnel in the fight against emergencies and on high alert.
WHO has repeatedly emphasized the need to protect health workers: “We have a moral obligation to protect all health workers, ensure their rights and provide them with decent work in a safe and supportive work environment...”
A WHO working paper estimates that “between January 2020 and May 2021, between January 2020 and May 2021, between 80,000 and 180,000 health care workers may have died from COVID-19, corresponding to an average scenario of 115,500 deaths. These estimates are based on the 3.45 million COVID-19-related deaths reported to WHO as of May 2021; this number alone is believed to be much lower than the actual death toll (60% or more of what is reported by WHO)."
Forensic medical experts and pathologists are at risk of infection in the workplace during epidemics, pandemics, and in high-risk conditions when new infections occur. This problem is especially relevant due to the persistence of coronavirus in the bodies of the dead. Based on the norms, mandatory research is provided for the dead, including those with suspected coronavirus infection (Federal Law of November 21, 2011 No. 323-FZ; Order of the Ministry of Health and Social Development of the Russian Federation of May 12, 2010 No. 346n; Order of the Ministry of Health of the Russian Federation of June 6, 2013 No. 354 ; Temporary guidelines of WHO, CDC, Ministry of Health of the Russian Federation).
Many countries have prepared additional measures to protect healthcare personnel. A system of additional payments was also formed by the Russian Federation. Standards were prepared and implemented to ensure the procedure for payments in the event of infection and death of employees of medical organizations.
However, receiving payments was not always possible without going to court.

DISCUSSION

To understand the problems of social protection of personnel, it is necessary to analyze the legislation provided for, as well as the difficulties in implementing the norms, including judicial practice.
To illustrate these aspects, we have selected two examples from judicial practice that are particularly illustrative.

The wife, a forensic medical expert, filed a claim in court against several legal entities, including: the regional department of the Social Insurance Fund, the regional Center for Occupational Pathology, and the regional bureau of forensic medicine.
The essence of the claim was that after the death of the expert, the family was unable to receive payments (a lump sum insured). To do this, it was necessary to recognize the event as an insured event. The deceased worked as the head of a department of the regional bureau of forensic medical examination of one of the constituent entities of the Russian Federation.
The regional bureau of forensic medicine indicated in documents that the deceased person did not work in conditions of contact with biological material or carriers infected with COVID-19. However, pointing out that persons sent for examination, accused and victims, were not tested for a new infection. In this regard, it is not possible to completely eliminate contact with the source of infection (carriers, patients with asymptomatic forms) while performing official duties.
The Regional Center for Occupational Pathology drew up a medical report on the absence of an occupational disease in the deceased, indicating in the cause of death of the doctor “Coronavirus infection caused by the COVID-19 virus, the virus has been identified, of severe severity. The outcome of the disease is death - non-occupational, i.e. not related with professional activities.
It must be pointed out that in the conclusion, the medical commission did not take into account that the deceased, while performing his official duties, examined the corpse of a woman in the emergency room of the Central District Hospital. An autopsy indicated that the cause of death was chronic heart failure, aggravated by a severe viral infection. The woman’s husband died from complications of coronavirus pneumonia, all of the woman’s relatives fell ill with COVID-19 (laboratory confirmed). The daughter of the deceased came to the expert’s office for a certificate of her mother’s death, at a time when she herself was suffering from a new infection.
The plaintiff believes that the doctor fell ill (CT signs of viral pneumonia; positive COVID-19 test) at work; asks to recognize the case as insured; death from coronavirus infection caused by the COVID-19 virus associated with professional activities; oblige the regional branch of the Social Insurance Fund of the Russian Federation to pay the plaintiff a one-time insurance payment in the amount of 2,752,452 rubles, invalidate the conclusion of the medical commission of the medical organization, which recognized the expert’s disease, which led to his death, as not professional.

By the ruling of the Vyatskopolyansky District Court of the Kirov Region, the Kirov Regional State Budgetary Forensic Healthcare Institution (KOGBSEUZ) "Kirov Regional Bureau of Forensic Medicine" was involved in the consideration of the case as a co-defendant.
The defendant prepared a review in which he did not recognize the claims of the doctor’s wife, indicating, taking into account the medical history, the results of clinical and instrumental methods of examining the victim, the documents provided, that the disease was not occupational. He asked that the claims be dismissed.
The response from the regional FSS also indicated that the claims were unfounded. The arguments were that not only the patients and their relatives were sick during this period, but also members of the doctor’s family. Consequently, the mandatory condition contained in Decree of the President of the Russian Federation N 313 has not been established, namely, that the medical worker contracted the disease while performing work duties directly while working with patients confirmed to have a new coronavirus infection (COVID-19) and patients with suspicion of this infection, that is, the fact of the expert’s contact with these patients has not been established.
Considering the above, the employer had no grounds in accordance with clause "a" clause 2 of Decree of the President of the Russian Federation No. 313 and clauses 14, 19 Provisions for investigating a case of occupational disease and drawing up an act of occupational disease.
According to the plaintiff, it was not her husband’s fault that people came to him for examination, possibly being asymptomatic patients, carriers, who had not been tested for COVID-19. Moreover, it was indicated that the autopsy was performed without a preliminary full laboratory test for COVID-19; the expert was not provided with a physical protection suit.
Only after November 2020, after the death of an expert, did specialists begin to be provided with everything necessary to protect themselves from coronavirus infection, including physical protection suits.
To resolve the issue of the legality of payments, the Federal State Budgetary Institution "Research Institute of Occupational Medicine named after Academician N.F. Izmerov" was involved. In the conclusion of a specialized organization dealing with issues of occupational diseases, it was stated that work as the head of a department of the regional bureau of forensic medicine was associated with exposure to pathogenic microorganisms of group II - causative agents of highly contagious human epidemic diseases, which include COVID-19. Considering the high contagiousness, the increased risk of transmission of coronavirus infection nCoV-2, the contact of the forensic doctor with sources of infection, experts do not rule out a connection between the expert’s illness, which led to his death, and his professional activities in the position of head.
Despite this, the regional branch of the FSS indicated that the conclusion of the forensic medical examination does not contain an unambiguous statement about the connection of the doctor’s disease with his professional activities, and therefore believes that the expert’s infection with coronavirus is of a domestic nature, and therefore, the grounds for recognizing it death in an insured event and there are no grounds for providing an insurance payment.
In turn, the regional Ministry of Health indicated that it is not involved in the examination.
Having studied the case materials, it is necessary to turn to the legislation regulating this aspect that was in force at that time.
There is a List of Occupational Diseases, which indicates infectious and parasitic diseases associated with exposure to infectious agents (pathogens of infectious and parasitic diseases). If workers are in contact with these agents during work, these diseases are occupational (clause 3.1 of the order of the Ministry of Health and Social Development of the Russian Federation dated April 27, 2012 N 417n). This document also states that infectious agents include the new coronavirus infection (COVID-19), and the harmful factor with which the employee is in contact during work is the causative agent of the infectious disease - coronavirus SARS-CoV-2.
The relevant Ministry of the Russian Federation has repeatedly indicated that the working conditions at the workplaces of health workers providing medical care to patients with COVID-19 belong to the dangerous class of working conditions without conducting appropriate studies (tests) and measurements by decision of the commission or classification as working conditions class 3.3 for the biological factor when carrying out SOUT (order of the Ministry of Labor and Social Protection of the Russian Federation dated January 24, 2014 N33n; letter of the Ministry of Labor of Russia dated July 13, 2020 N 15-1/00G-1996).
The conclusion of a forensic medical examination of the connection between the disease and the profession indicated that coronavirus infection is an acute infectious disease caused by a new strain of a virus from the genus of coronaviruses SARS-CoV-2, and the SARS-CoV-2 virus is classified in pathogenicity group II and is highly contagious (Resolution Chief State Sanitary Doctor of the Russian Federation dated November 28, 2013 N 64).

The source of infection can be a person, including those in the incubation period of the disease.
Temporary Methodological Recommendations (TMR) indicated that COVID-19 infection associated with the provision of medical care carries the risk of infection even with a single contact, which occurs when coughing, sneezing and talking at a close (less than 2 meters) distance, performing medical procedures, and also through surfaces and objects contaminated with SARS-CoV-2. At room temperature, SARS-CoV-2 is able to remain viable on various environmental objects for 3 days.
It is worth noting that SARS-CoV-2 is included in the list of diseases that pose a danger to others (Resolution of the Government of the Russian Federation of January 31, 2020 N 66).
According to the BMP, laboratory testing methods are used to confirm coronavirus disease (COVID-19). Roszdravnadzor clarified that rapid tests should not be used as the sole basis for confirming the presence of SARS-CoV-2 or for informing about the status of infection.
The Ministry of Health of the Russian Federation in a document dated July 14, 2020 explained “by commissions investigating cases related to COVID-19 infection of medical workers providing care to patients with coronavirus infection or suspected of it, in the performance of work duties, which entailed adverse consequences for their lives and health, transparency and objectivity must be ensured, and doubts when summing up its results must be interpreted in favor of the medical worker."
The requirements of the Regulations on the investigation and recording of occupational diseases (approved by Decree of the Government of the Russian Federation dated December 15, 2000 N 967, letter of the Federal Service for Labor and Employment of the Ministry of Labor of Russia dated April 10, 2020 N 550-PR) determined the procedure for investigating the infection of medical workers with coronavirus infection while on duty responsibilities. Based on the regulation, a healthcare institution, based on clinical data of the employee’s health status and the sanitary and hygienic characteristics of his working conditions, establishes a final diagnosis - acute occupational disease (poisoning) and draws up a medical report ((clause 10); order of the Ministry of Health of Russia dated January 31, 2019 N 36n "On approval of the procedure for conducting an examination of the connection of a disease with a profession and the form of a medical report on the presence or absence of an occupational disease."
In connection with the current stipulated standards, the case materials (including the work time sheet), the court recognized the conclusion of the medical commission "Emergency Hospital", the Center for Occupational Pathology, the decision on the absence of an occupational disease in the forensic expert, invalid, as well as an established fact death of a medical worker as a result of infection with a new coronavirus infection (COVID-19) while performing his work duties. In this connection, it was determined that his plaintiff spouse has the right to receive insurance payment (subparagraph “a”, paragraph 2 of Decree of the President of the Russian Federation of May 6, 2020 N 313).
Recognizing the death of the doctor as an insured event, the court came to the conclusion that the demands made by his wife to impose on the regional branch of the Social Insurance Fund of the Russian Federation to appoint and pay her a one-time insurance payment, provided for in paragraphs. "a" clause 4 of Decree of the President of the Russian Federation No. 313 of 05/06/2020. It was decided: to satisfy the claims of the wife of the deceased expert.

Similar cases on issues of payments to persons participating in forensic/pathoanatomical activities are encountered in judicial practice more than once.
For example, Resolution of the Fifth Arbitration Court of Appeal dated November 9, 2023 N 05AP-5960/23 in case N A51-1841/2023 contains information that in the arguments of the complaint the plaintiff does not agree with the court’s conclusion that for To classify medical workers of pathology bureaus as falling under a special social payment, it is sufficient to have a lifetime confirmed diagnosis of COVID-19 in a deceased patient. According to the appellant, a lifetime positive test for coronavirus detected in a patient does not indicate that the infection came into contact with the pathologist during his autopsy of the deceased patient.
In this regard, the plaintiff believed that the defendant’s employees were excessively paid special social benefits (in the amount of RUB 274,957.50). It should be noted that this issue concerned ten employees who carried out pathological work.

Results. Based on the conducted research, it is necessary to state the existence of legislative provisions provided for the protection of workers of medical organizations during a high-alert regime. However, there are objective problems associated with their implementation.
Conclusion. The solution to this problem is long-term and multi-stage, requiring the settlement of legal and organizational aspects.

Economic recovery and new investments in emergency preparedness and response cannot occur without state-mandated regulations and simple implementation that does not require the involvement of the judiciary.

About the authors

Elizaveta Bogovskaya

Author for correspondence.
Email: bogovskaia@yandex.ru
ORCID iD: 0000-0002-1282-8513
ResearcherId: http://www.researcherid.com/rid/O-2645-2015

Head of the Department of Multidisciplinary Clinical Training 

References

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