Wyoming Claim Involving Flesh-Eating Bacteria Not Barred by "Communicable Disease Exclusion"

The Supreme Court of Wyoming held a state district court did not err when it rejected a determination by Office of Administrative Hearings that a worker’s claim for a work-related injury was barred by the state’s “illness or communicable disease” exclusion [In re Worker’s Comp. Claim of Vinson, 2020 WY 126, 2020 Wyo. LEXIS 146 (Sept. 28, 2020); see Wyo. Stat. Ann. § 27-14-102(a)(xi)(A) (LexisNexis 2019)]. The Court held the OAH had misidentified the worker’s injury–he struck his knuckle on a locker in the employer’s shower room and the small cut subsequently became infected with a flesh-eating bacteria. The Court stressed the injury was the original knuckle cut, not the flesh-eating bacteria.

Background

On June 10, 2016, Vinson was working underground at his employer’s trona mine near Green River. Ten minutes before his shift ended, Vinson exited the mine and, as he did after every shift, took a shower in the employee locker room. After his shower, he hung his towel in his employee locker. While doing so, he scraped the knuckle of his right index finger on the locker. The wound bled “for a little bit and stopped.” He did not report the injury to his employer that day.

The next day was a Saturday. Vinson participated in some family activities but went home after a short while because he felt nauseous. Once home, he noticed his right hand was “swollen and red.” He later testified that he shivered and was shaking throughout the night. The following day, he was taken to an emergency room of a local hospital and then life-flighted to the University of Utah hospital in Salt Lake City, where he was diagnosed with necrotizing fasciitis due to Group A beta-hemolytic streptococcus (Strep A), more commonly known as flesh-eating bacteria. Hospitalized for more than a month, Vinson underwent aggressive antibiotic therapy, multiple surgical debridements to achieve control over the infection, and skin grafting.

The Wyoming Department of Workforce Services, Workers’ Compensation Division (Division) awarded benefits, but the Office of Administrative Hearings (OAH) decided Vinson’s injuries were not compensable because they were excluded from coverage under the “illness or communicable disease” exclusion set forth in Wyo. Stat. Ann. § 27-14-102(a)(xi)(A) (LexisNexis 2019). The district court determined, in relevant part, that Vinson was entitled to benefits because the “illness or communicable disease” exclusion did not apply. The employer appealed.

Work-Relatedness of Knuckle Injury Was Not at Issue

Important to its final conclusion, said the Supreme Court, was the fact that the OAH determined that Vinson proved by a preponderance of the evidence that the damage to his knuckle was a work-related injury under § 27-14-102(a)(xi). The employer did not challenge that determination and the Court indicated it was supported by substantial evidence. Moreover, the OAH found Vinson had shown his Strep A infection and necrotizing fasciitis were causally connected to his knuckle wound. Again, the employer did not challenge this finding and it is supported by substantial evidence.

Misidentification of Vinson’s Injury

The Court stressed, however, that the OAH’s decision that the employer had met its burden in establishing the applicability of the “illness or communicable disease” exclusion was not supported by substantial evidence or in accordance with the law. The OAH’s entire argument was grounded in its misidentification of Vinson’s injury as the Strep A infection and necrotizing fasciitis, rather than the damage to his knuckle. The employer did not meet its burden in establishing Vinson’s injury, the scrape, was excluded from coverage under the “illness or communicable disease” exclusion.

Comment: What About COVID-19?

At first blush, it would certainly appear that a COVID-19 claim would be barred by the “illness or communicable disease” exclusion. Note, however, that earlier this year, § 27-14-102(a)(xi)(A) was amended. The exclusion does not apply if “the risk of contracting the illness or disease is increased by the nature of the employment.” Moreover, for the period beginning January 1, 2020 through December 30, 2020, the amended statute goes on to say:

if any employee in an employment sector for which coverage is provided by this act is infected with the COVID-19 Coronavirus, it shall be presumed that the risk of contracting the illness or disease was increased by the nature of the employment; ….

Thus, the door appears to have been opened for compensability regarding many who face the risk of contracting the disease.