Coronavirus (COVID-19)—Is It Compensable?

Since the workers compensation system is unique to each of the 51 jurisdictions, the response to the issue of COVID-19 compensability will undoubtedly be varied. Almost all of the jurisdictions have a provision in their respective workers compensation acts requiring that the injury/illness arise out of and in the course of employment. There are other Act provisions that can also play into the compensability decision, such as that the injury/illness must be traceable to a point in time. As the coronavirus becomes widespread in the United States, it will be almost impossible to determine that exact moment an individual became infected and whether it was in the course and scope of employment.

Individuals working in specific industry segments (e.g., medical professionals and those in the service sector) may have an easier time pursuing a workers compensation claim as it can be shown that they were at higher risk in their workplace due to their occupation.

Historically, many communicable disease workers compensation claims have been resolved through litigation. Following are a sampling of pertinent case law. These cases could provide a clue as to how coronavirus workers compensation claims will be resolved. At the outset, it is important to note that the majority of workers compensation cases regarding communicable diseases require a showing of increased exposure to the contagion at work to be compensable.¹

Traveling Employee Dies of Neisseria Meningitidis: Illinois

The case of an executive that contracted Neisseria meningitidis while traveling on business to Brazil is illustrative of the evidence necessary to show the causal connection (and increased exposure) between the disease (infection) and his employment. In Omron Elecs v. Illinois Workers' Comp. Comm'n,, 2014 IL App (1st) 130766WC, 387 Ill. Dec. 74, 21 N.E.3d 1245 (2014), the employee, Craig Bauer, worked for the employer, Omron Electronics, as the company's president and chief operating officer. Mr. Bauer traveled to Japan and China from June 7–14, 2006. He then returned home to Chicago and worked from his office.

He reported having a slight upper respiratory infection at this time. On June 20, 2006, he left Chicago and flew to Brazil. He left Brazil on June 22 and returned to Chicago. Upon his return, he stated he did not feel well. His symptoms dramatically increased over a short period of time, resulting in his death on June 25, 2006. The autopsy showed that he died of meningococcemia (another word for Neisseria meningitidis). 

A person can only contract this infection from another human. The most common transmission is airborne respiratory droplets (from coughing, sneezing, talking, or singing). The incubation period is 2–10 days. International travel increases the risk of contracting the disease, especially travel to Brazil where there is a significant increased prevalence of the disease. Given his travel to Brazil and the timing of his onset of symptoms, the medical experts for the employee's administrator opined that Mr. Bauer contracted the disease in Brazil while on business. However, conflicting medical testimony was offered by the employer, contending that it was impossible to determine exactly when Mr. Bauer contracted the disease, given all of his recent international travel.  

The court noted that the claimant in an occupational disease case has the burden of proving not only that he or she suffers from an occupational disease but also that there is a causal connection between the disease and his or her employment. However, proof of a "direct" causal connection is not required by the Illinois Act. The commission found the opinions of the experts who concluded that the disease was contracted in Brazil to be more persuasive and ruled in favor of compensation. Noting that it is the function of the commission to judge the credibility of the witnesses and weigh the evidence, the court affirmed the commission's ruling of compensability.

Nurse Develops Pseudomonas Aeruginosa: Louisiana

In contrast, in another case, an employee failed to prove that he contracted a Pseudomonas aeruginosa infection during the course and scope of his employment at a hospital. In Dunaway v. Lakeview Reg'l Med. Ctr., 2002-2313, 859 So. 2d 131 (La. App. 1 Cir. 08/06/03), Timothy K. Dunaway worked at the Lakeview Regional Medical Center as a nurse. While off-duty, he was operating his boat when it struck a sandbar resulting in multiple facial and nasal fractures requiring extensive reconstructive surgeries. Because the healing of his wounds was incomplete, an attempt was made to avoid scheduling him with patients with open wounds. Nevertheless, at times, Mr. Dunaway did work "the floor," requiring him to handle IV lines, chest tubes, urinary bladder catheters, and other wound drainage.

Mr. Dunaway developed a bacterial infection in his sinuses, Pseudomonas aeruginosa. Six months later, he underwent an additional surgery and found that he still had the infection. Because of his condition, Mr. Dunaway was unable to return to work. He then sought workers compensation benefits, claiming that he contracted the infection while on the job.

The Office of Worker Compensation (OWC) judge denied the benefits due to Mr. Dunaway's failure to establish with reasonable probability the causal link between his illness and his work-related duties. The OWC judge noted that the claimant's experts were not infectious disease doctors, unlike the expert for the employer. The evidence showed not only that this type of infection can be acquired outside of a hospital setting but also that none of Mr. Dunaway's patients showed signs of the infection. Since the disease can be community-acquired (like the coronavirus) and because Mr. Dunaway could have been exposed to the infection at other times, for instance, during his own surgery and hospital stay, the court affirmed the denial of benefits.

Nurse Contracts Ebola: Texas

The current coronavirus outbreak is reminiscent of the Ebola outbreak in 2014. However, unlike the recent coronavirus outbreak, there were very few persons infected with Ebola in the United States. Thus, tracing the source of the Ebola infection was much easier, as was the case in Texas Health Resources v. Pham, No. 05-15-01283-CV, 2016 Tex. App. LEXIS 8336 (Tex. App.—Dallas Aug. 3, 2016). There, Nina Pham worked as a nurse at Presbyterian Hospital in Dallas. She was part of the medical team that treated Thomas Duncan, who turned out to have Ebola. Ms. Pham then contracted Ebola and, thankfully, survived. She sued Texas Health Resources (THR), the owner of Presbyterian Hospital, which in turn contended that it was her coemployer along with the hospital. In this case, it was clear that Ms. Pham was infected on the job, so she was entitled to workers compensation from her employer, Presbyterian Hospital.

Her contention was that only the hospital was her employer, not THR, and thus she was free to sue THR. Ms. Pham sought a temporary injunction seeking to prevent THR from litigating the coemployer issue in any other forum—such as the Division of Workers Compensation.

In declining to enforce an injunction, the Dallas Court of Appeals held that Ms. Pham's affidavit did not support any of her causes of action since it failed to show that she would not have contracted Ebola had the hospital adopted different policies and procedures, provided different training, or provided her with different personal protective equipment. The court held that these issues were beyond a layperson's common understanding and, therefore, expert testimony was needed to support causation. Since Ms. Pham did not have expert testimony supporting her claims, the court denied the request for injunction, sending the case back to the trial court for further handling. Thereafter, the parties entered into a settlement, so the issue of coemployer status was never fully litigated. 

Lab Tech Dies from Serum Hepatitis: North Carolina

Unlike Ebola, the coronavirus may be much more difficult to trace to a source, even for healthcare workers, if the outbreak is widespread in the area where the employee resides. Nevertheless, healthcare workers are at an increased risk that would factor in favor of compensation. When a person's employment increases the risk of contracting the disease, then the courts are more likely to find compensability. See Booker v. Duke Med. Ctr., 297 N.C. 458, 256 S.E.2d 189 (1979), where a claimant died of serum hepatitis allegedly as a result of working as a lab technician for Duke Medical Center.

Firefighter Develops Valley Fever While Traveling: Washington

First responders may also be at a higher risk. However, many states have very specific statutes on what types of infectious diseases are covered for such professionals. Since the coronavirus is a new disease threat, it is likely not specifically identified under any state statute. Take the case of Gorre v. City of Tacoma, 357 P.3d 625 (Wash. 2015), where a firefighter contracted Valley Fever, which he had acquired while on a business trip in Nevada. Since Valley Fever wasn't one of the enumerated diseases that allowed for a rebuttable presumption that the disease occurred during the course of employment, a firefighter who contracted the disease was required to prove causation. (Note that the majority of cases hold that the unexpected contraction of infectious diseases is an injury by accident—not a disease.²) For a disease like the coronavirus, which may become widespread in the community, proving causation arising out of employment is likely to be quite difficult.

Family Members Contract MRSA: Texas

Family members pose another unique challenge. Do infected family members of an infected employee who contracts the disease in the course of employment also have a compensation claim under the pertinent act? The answer is yes if they can show the necessary nexus between the exposure to the employee and their resulting illness. In one case, Beshears v. Pilgrim's Pride Corp., 954 F. Supp. 2d 500 (N.D. Tex.–Fort Worth 2013), employees of a chicken plant who contracted methicillin-resistant Staphylococcus aureus (MRSA) were found to have contracted the infection while in the course of employment. Those same employees unknowingly carried the infection home on their skin and clothing, thus exposing their families to the disease. There was a direct correlation to the disease contracted by the employees and that contracted by the family members. Therefore, the families' claims were also compensable under the Act.

This case suggests that if a healthcare worker contracts the coronavirus and then infects their family, then the family's claims may be covered under the Act. However, if the family members have been potentially exposed in other ways, then they may not be able to prove the causal connection needed to support a finding of compensability.

Conclusion

Each case of the coronavirus will have to be evaluated independently to determine whether it was contracted during the course of employment. Should the disease become widespread, proving that an employee contracted it during the course of employment may be insurmountable.

---

¹ Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition, § 5.05[2] (Matthew Bender, Rev. Ed).

² Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition, § 51.03 (Matthew Bender, Rev. Ed).