One of the best courtroom movies ever made is "Witness for the Prosecution." In this classic film noir, you can see what makes a great lawyer, and what separates him from all of the others. Spoiler alert! The movie's climax shows the great barrister, Sir Wilfred Roberts, exonerate his client, Leonard Vole, from a murder charge. Wilfred is overweight and has a weak heart. He also has a stalwart nurse at his side. The nurse is about to seize this victory as a pretext to shoehorn Wilfred into a plane for a much-needed rest in Bermuda. Suddenly there is another murder, in plain view of a room full of witnesses. The newly accused happens to be the "witness for the prosecution" in the Vole case. Wilfred is turning a magnifying glass, eyeing the colorful light from its prisms, and you can see his wheels turning too. How can you exonerate someone who commits a crime before so many witnesses? It isn't easily done. The nurse comments on the newly accused, having just "killed" someone. Wilfred, without missing a beat, puts down the glass, turns to the side, faces the nurse and says to her "not killed, assassinated." The viewer can imagine the temporary insanity defense with the jealous lover angle, see the nurse offer a celebratory but medicinal flask to Wilfred, anticipate cancellation of the Bermuda flight, and count on Wilfred's return to the courtroom to represent his newly accused client. All is right with the world. Well, maybe not so much for the newly deceased.

This is what we were put on earth to do, to keep our heads in adversity, to see things that others don't, to find those unique solutions, and to persuade others that what we see is what they also should see. Things are no different in our current pandemic age. For many people, it seems like the world is crashing all around them, with both emotional panic and financial extremis, all caused by the lack of demand for goods and services and a very contagious virus. It is gut-wrenching to see how much sickness and death is affecting so many lives all around us. Workers outside the home have more risk than those who can socially distance, and companies struggle with solvency while in many cases striving to deliver goods and services in the face of continued infections. For those of us in Pennsylvania's workers' compensation practice, it was first things first. We addressed the opening of the courts, the state of the medicine, the reactions of employers, the furloughs and layoffs implicating reinstatement of benefits, and how best to manage a law firm in these challenging times. And in our practice, these times are bringing out the best in so many, a coming together among friends and adversaries that you just don't normally see.

First, and very early on, members of the defense and claimant bar came together with the Pennsylvania Bureau of Workers' Compensation administrative leadership, judges and their staffs. With very little room to maneuver yet with significant commitment of all parties, our system almost immediately became unfrozen. How was this done? Clearly, what united us was far stronger than what divided us. Because to a person we all wanted to see justice served for system stakeholders while keeping a lifeline to law firms. Countless conference calls, planning meetings, technology lessons at all levels, open mindedness and, of course, creativity resulted in a system that was "back up" after a relatively brief interruption, and back up almost as robustly as before. Between Skype hearings, WebEx testimony, Zoom mediations and heavy use of cellphones, the Pennsylvania workers' compensation system is open for business, even if the buildings are not. In many ways, this achievement is a model not only for other administrative systems, but also for civil practices. With the recent announcement of the U.S. Supreme Court hearing oral argument by phone (with the entire country being able to listen in no less), can other court systems be far behind? I think Sir Wilfred would approve of how this bar saw what no one else could see, and how this bar made it work, embracing both technology and speed of implementation.

The medicine of course is a bit more complicated. We have a mutating virus of disputed origin that causes havoc and death for some, and barely any symptoms for others. Its significant contagiousness is beyond debate. How to "flatten the curve" is also disputed, between proponents of social isolation, herd immunity and everything in between those two options. We have a broad workers' compensation law that has heavy burdens for injured workers, while a COVID-19 diagnosis does not by itself result in a lowered burden (barring any substantial legislative overhaul). But on the positive side, worldwide effort is focused on a vaccine, on antibody testing and on effective treatments, with many predicting vaccine availability in the first quarter of 2021 and other therapies close behind. Seven vaccines have reached the clinical trial stage, attacking the virus from different perspectives, one focusing on its RNA. But the medicine and causation could very well play an important role in the lives of so many afflicted by this virus, and who believe they caught the virus in the course and scope of their employment.

Overall, employer reaction has been swift and relatively consistent. A government shutdown of the majority of Pennsylvania business has led to widespread unemployment, with the silver lining being that so many of those newly out of a job hopefully are safe at home, receiving stimulus checks, unemployment compensation benefits or other forms of support. But for those employers in essential industries or those providing essential goods and services, it is another story altogether. Aside from the tremendous efforts being made by so many in health care, food, policing, key manufacturing and other areas, there is widespread concern among employers about saving lives, maintaining supply chains, and ensuring order while at the same time avoiding disease transmission and in many cases, burnout and mental exhaustion. Employees are initiating claims ranging from COVID-19 diagnosis to psychological injuries from the fear of COVID-19 contagiousness. Employers appear, by and large, to be contesting these unprecedented claims. They are using all of the defenses that are available from our 100-plus-year-old statute and accumulated case law, while eyeing the legislature for any changes that could alter burdens of proof. Attorneys on both sides are going over the law with a flea comb, and lobbyists are playing their part. This will have to be watched weekly, if not daily, as the ground tends to shift frequently with the 24-hour new cycle.

Shifting ground breeds uncertainty, much of it focused on what happens when an employee who had been back to work modified duty following a work injury, but is then furloughed or laid off due to COVID-19. Is that employee entitled to an automatic reinstatement of indemnity benefits? The gut reaction of many might be yes, but as with other issues, the answer could be more complex. Pennsylvania law establishes that if an employee is back to a regular duty job and is laid off, the employee is not entitled to a reinstatement of indemnity benefits. See Harle v. Workers' Compensation Appeal Board (Telegraph Press, Inc.) 658 A.2d 766 (PA 1995). But if an employee is laid off from light duty work, the reinstatement is not automatic, but rather the employee is entitled to the presumption that the wage loss is work related, as in Budd Co. v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170 (Pa Cmwlth, 2004). For decades, the courts have permitted two exceptions: when the employee had actually recovered from the work injury; or if work was nevertheless available despite the layoff. The shifting ground here is the COVID-19 pandemic, where Gov. Tom Wolf forced the closure of all nonessential businesses on March 19. As such, there is no work available for the person who had returned at the time of the COVID-19 shutdown. In this scenario, can the employer rebut the general presumption by arguing that the loss of earnings is due to the COVID-19 pandemic? Is this something different from a general economic layoff? Also to be considered are those $1,200 federal payments and the additional $600 per week in additional unemployment compensation benefits available to workers who meet the criteria.

Employers and insurers will debate these issues while developing strategies that address the needs of injured workers and business models. But for now, there is no controlling case law that provides a COVID-19 exception to what is listed above. There could be multiple outcomes as there is always a diversity of opinion among different judges, leading eventually to the creation of case law. The Pennsylvania workers' compensation statute is remedial in nature, which for many decision-makers will settle the issue. Each option and course of action must be carefully considered and weighed.

Almost everyone can agree that most law firms have been less likely to alter their business models based on news stories, good or bad. This is because of tradition, stasis or lack of business acumen. No one will be surprised at the demise of a law practice or even a law firm, if that practice or firm lacks forward thinking or has otherwise simply had its day. But interestingly, among Pennsylvania workers' compensation practices and law firms, there have been a range of reactions and a surprising amount of forward thinking designed to survive the present and embrace the future. On the claimant's side, there are plans in place to reimagine existing statutes (barring any legislative updates) to help COVID-19 victims who feel that their work caused their illness. Harking back to the days of massive hearing loss claims in the 1990s, there is discussion to have a streamlined judicial process with selected judges to handle what many believe could be a significant influx of cases. Some are also looking to represent health care providers spending millions on acute care in the most serious of cases, while others are looking to preserve the reserves of workers' compensation insurance carriers and self-insured companies, promoting traditional burden-of-proof concepts, concepts that still apply when the culprit is a virus and the ground game is a worldwide pandemic. Almost everywhere, costs are being reviewed and technology is being bought, upgraded or perhaps utilized for the first time. Lawyers and staffs are embracing working from home while navigating spouses, partners, children, parents, goldfish and other domestic issues. While layoffs and furloughs exist, in these practices, they have been less prevalent than in others. But there is little doubt that with a reduction in economic activity there is also a trailing reduction in cases and, in the normal course of events, an interruption in income flows.

At the same time, much like Sir Wilfred, workers' compensation practitioners are opportunistic and optimistic, preparing to snatch victory from the jaws of defeat. Normality will come, as it always does, new normal though it might be. Economic activity will return. It is probably an observable fact that insurance practices are not going anywhere. The smart money is on the leanly managed practice, the efficient provision of service, and as the COVID-19 crisis has shown, the benefit of a solid bar and the relationships it confers. Traditionally, workers' compensation practices have embraced these strategies very well.

Paul Fires and David Greene are partners at Weber Gallagher Simpson Stapleton Fires & Newby. They both serve as co-chair of the firm's workers' compensation practice group. Contact them at [email protected] and [email protected].