For Workers’ Comp World, Coronavirus is a Real “Snake in the Grass”

The world is transfixed by a new enemy: the coronavirus. I just received an email from my bank reminding me how I can use my accounts’ electronic features so as to avoid personal contact. In the last two working days, I’ve received two emails and a phone call from concerned HR officials asking what impact I thought the virus might have on the workers’ compensation world. Channeling justice Moschzisker, then a justice of the Supreme Court of Pennsylvania, in an opinion penned more than 100 years ago, I told them, “As far as I’m concerned, the coronavirus is a real snake in the grass.” Let me explain.

McCauley v. Imperial Woolen Company

Initially, may I note justice Moschzisker’s splendid metaphor. The case, McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617 (1918), involved a “wool sorter” who went to work healthy one morning in 1916, got a scratch on his neck, and died three days later of anthrax poisoning. In this time before occupational disease coverage — wool sorters were known to be more susceptible to anthrax than the general public — the justice saw the circumstances as essentially being equivalent to an accident injury. According to the justice, McCauley’s exposure to anthrax was just as though a serpent, concealed in the material upon which he was working, had unexpectedly and suddenly bitten him [McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617, 622-623 (1918), additional citation omitted; emphasis added].

Coronavirus is Not an Occupational Disease

I mention this old case to make my first point: as I argued here more than five years ago about the ebola virus, coronavirus disease is not an occupational disease. As noted in Larson’s Workers’ Compensation Law, § 52.03[3], in most jurisdictions, the “principal component in the occupational disease definition is the distinction from diseases which might as readily be contracted in everyday life or in other occupations.”

That is to say that while the risk of contracting the disease may be much greater among those in the healthcare community, the disease isn’t actually an incident of healthcare work as, for example, byssinosis was an incident of work within Southern cotton mills decades ago. With rare exception, byssinosis could not be contracted outside of the textile industry. The risk of coronavirus isn’t limited to those who treat patients. Just ask the people who disembarked from the cruise ship in Oakland, California yesterday.

We Should Apply the Usual “Compensation Formula” in Coronavirus Cases

Freed from the need to fit the coronavirus within the occupational disease definition, we’re left with treating the condition just was we would any other workers’ compensation claim. That is, the straightforward question becomes, “Did the coronavirus condition arise out of and in the course of the employment?” Ample precedent for this sort of analysis exists within our courts. There are many other decisions including the following:

• Polio — For example, utilizing this sort of “AOE/COE” analysis, a Colorado court many years ago awarded benefits to a nurse who contracted polio [ Industrial Comm’n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952)]. The court did not base its decision on occupational disease principles, but rather on the notion that the nurse had sustained an accidental injury arising out of her employment.
• Ocular Herpes — In Portman v. Camelot Care Ctrs., Inc., 2000 Tenn. LEXIS 96 (Tenn. Special Workers’ Comp. App. Panel Mar. 2, 2000), adopted and affirmed, 2000 Tenn. LEXIS 95 (Tenn. Mar. 3, 2000), a kindergarten teacher recovered benefits for ocular herpes following an incident in which a child spit in claimant’s eye. Evidence tended to show that the worker had normal ocular health prior to the incident and had only developed irritation and other symptoms several days after the incident. While claimant’s medical expert could not definitively say that the spitting incident caused the herpes, the doctor did testify that there was no evidence that the herpes condition was caused by anything else. That testimony was sufficient to support a finding that the herpes condition arose from the employment, held the court.
• Valley Fever (Coccidioidomycosis) — In a California case, Jacobs v. Western Municipal Water Dist., 2011 Cal. Wrk. Comp. P.D. LEXIS 74, utilizing the “arising out of” and the “in the course of” employment analysis, the state’s WCAB held that substantial evidence supported a WCJ’s finding that an employee had sustained a compensable injury in the form of disseminated coccidiomycosis (valley fever), when he worked in an area where coccidiomycosis fungus was known to exist, applicant’s credible testimony showed that he had worked outside his plant while excavation had taken place — exposing him to dusts and fungus — and a QME opined that it was very highly medically probable that this exposure caused applicant’s injury.
• Tuberculosis — In Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130; 341 N.E.2d 527; 379 N.Y.S.2d 3 (1975), a New York court reinstated an award of workers’ compensation benefits to a state prison employee who alleged that he contracted tuberculosis from an infected inmate while working for the prison. The court specifically held that compensation for diseases resulting from industrial accidents — including those caused by germs — had earlier been sustained by New York courts.
• Meningococcal Sepsis — In City of New Castle v. Workmen’s Comp. App. Bd., 118 Pa. Commw. 51, 546 A.2d 132 (1988), the deceased, a supervisor for the city, died as a result of a rare, non-occupational disease, meningococcal sepsis, which the supervisor apparently contracted when he kissed a co-worker on the cheek prior to her leaving for maternity leave. The commonwealth court affirmed an award, reasoning that the deceased employee had not stepped outside the employment when he gave the co-employee an innocent reflection of goodwill. Observing further, that the Pennsylvania Act did not require added or peculiar risks, but simply compensated for injuries arising within the course of employment, the “injury” was compensable.
• Rocky Mountain Spotted Fever — See Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910 (1933).
• Typhus — See Oalmann v. Brock & Blevins Co., 428 So. 2d 892 (La. App. 1983). Here the case involved a worker who developed typhus, allegedly from a tick bite.

Summarizing the foregoing material, employees who can show either an actual risk of disease or who face an increased risk are likely to be able to establish their claims for coronavirus disease, utilizing AOE/COE rationale.

Traveling Employees

Traveling employees will also see significant success in establishing claims. The arguments here are somewhat similar to those involving nurses and other healthcare workers: it can easily be argued that those whose work requires travel to China, Italy, or other “hot zones” are more susceptible to the virus. That claim will be buttressed by the expansion of compensation rules available to traveling employees [see Larson’s Workers’ Compensation Law, §§ 14.01, 25.01, et seq.].

Thus, in Pacific Employers Ins. Co. v. Industrial Acci. Com., 19 Cal. 2d 622, 122 P.2d 570 (1942), the Supreme Court of California affirmed an award of benefits to a coffee salesperson who contended he had contracted Valley Fever in connection with his work, Indeed, he had been hired to travel through California, Arizona, New Mexico, and Texas. The Commission found that there was strong evidence that the disease was endemic to the San Joaquin Valley, and that the employee had not been in the San Joaquin Valley except in the course of his employment. The court found that where an employee’s duties required him to travel and he suffered injuries in the course of that travel, the injury arose out of and occurred in the course of employment.

Other travel cases include the following:

• Infectious viral hepatitis contracted in Bolivia because of insanitary conditions [see Lothrop v. Hamilton Wright Organizations, Inc., 45 A.D.2d 784, 356 N.Y.S.2d 730 (1974).
• Death resulting from a mosquito bite/sting while in Africa [see Lepow v. Lepow Knitting Mills, Inc., 288 N.Y. 377; 43 N.E.2d 450 (1942).

Arising Out of the Employment Issue

As can be seen in the cases in which benefits have been awarded, the claimant was successful in showing not only that the disease was contracted in the course of the employment — that is, during the time and place of the employment — but that the risk of injury arose from the employment. For those outside the healthcare field or those whose employment requires extensive travel to “hot zones,” the arising out of the employment test will likely spell doom for their claims.

Hypothetical

It’s in this discussion that I tend to get the firmest push-back from some of you. Pretend we’re back in law school and consider the following hypothetical:

You work in an office with a cubicle arrangement for workstations. Your standing at your “cube” talking to a coworker about some work-related issue, when she sneezes on you. Three days later, you notice that you have some symptoms of flu. You’re out of work for a week. Do you have a compensable claim?

In most jurisdictions, the categorical answer is, “No.” Aside from the medical causation issue — i.e., did you catch the flu from the coworker or from the flu germs on the shopping cart at the local Harris-Teeter — it will be difficult to show that your flu resulted from a risk of employment; you face the same sort of risk when you go home or when you walk about in public. I argue that the same should be true for the coronavirus.

Parenthetically, there appears to be but one case in which workers’ compensation benefits have been awarded for the flu [see Lawhead v. United Airlines, 59 Haw. 551, 584 P.2d 119, 125 (1978)]. Crucial to that decision, however, was Hawaii’s strong presumption of compensability. Since no other state has such a strong presumption, the case will be of little help to those whose claims involve the flu.

Coronavirus is a Snake in the Grass — Not a Risk of Employment (for Most of Us)

The coronavirus, while certainly dangerous and scary — might we please bear in mind that according to data released by the Centers for Disease Control, during 2017-2018, our country endured 45 million cases of influenza, resulting in more than 810,000 hospitalizations, and more than 61,000 deaths — is simply not a risk that arises out of the employment for most of us. As I say, it’s a real snake in the grass. It is going to continue to be disruptive — check your 401(k) balances — and some of us may even contract it during the next few months. It will be weaponized by politicians and it will be the opening news story on many nightly broadcasts.

Natural disasters sell newspapers (used to sell?); now they increase viewership of online news sources and television. North Carolina stations note that hurricane season bumps up viewership, so reporters head for the Outer Banks between June and October each time the wind blows and the barometer tracks lower. There may be plenty to worry about out there, but the ability of the workers’ compensation system to endure the claims that may be filed is not something that should be too disruptive.

If you disagree, email me at tom@workcompwriter.com.