Swine Flu, Avian Flu, Ebola, the Zika Virus and Workers’ Compensation

Two tests must be satisfied before an illness or disease can be considered occupational and thus compensable under workers’ compensation:

1. The illness or disease must be “occupational,” meaning that it arose out of the course and scope of employment; and
2. Ultimate compensability of an illness or disease is dependent upon the work or occupation of the employee; the illness or disease must arise out of or be caused by conditions “peculiar” to the work.

To arise out of and be in the course and scope of employment is a function of the activities of the employee. The simplest test toward judging and determining whether an injury “arises out of and in the course and scope of employment” is to ask: Was the employee benefiting the employer when exposed to the illness or disease? Be warned, this “test” is subject to the interpretations and intricacies of various state laws. (A more detailed explanation of the course and scope rule is found in “The Insurance Professionals’ Practical Guide to Workers’ Compensation: From History through Audit – Second Edition.”)

Qualifying as “occupational” is the low hurdle. The higher hurdle is test two, the illness or disease must be “peculiar” to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable.

Black lung disease in the coal mining industry if an example of a disease that is peculiar to the work of a miner. Coal miners are subject to prolonged exposure to higher-than-normal concentrations of coal dust leading to black lung disease making the disease peculiar to the coal mining industry.

Another example of this “peculiar” exposure is a healthcare worker contracting an infectious disease such as HIV or hepatitis as a result of contact with infected blood. Their unusual or “peculiar” exposure to such diseases make such diseases occupational and compensable.

Qualifying an illness or disease first as occupational and secondly (though more importantly) as compensable may ultimately require industrial commission or court intervention to sort medical opinion from legal facts. There is no singular test applicable to every case to declare an illness or disease as compensable or non-compensable, thus each case is judged on its own merits and encompassing circumstances.

Medical opinion leading to the conclusion that an illness is occupational and compensable is not necessarily based on the disease but on the facts surrounding the patient’s sickness. Physicians for the insurance carrier investigate:

• The timing of the symptoms relational to work: Do symptoms worsen at work and improve following prolonged absence from work (in the evening and on weekends);
• Co-workers showing similar symptoms: Do co-workers show some of the same symptoms currently or in the past (may not be to the same degree as the patient as each individual has varying tolerances);
• If such illness is common to employees in that particular industry;
• If the employee has a predisposition that may lend itself to the illness such as an allergy; and
• Personal habits and medical history of the patient: Patients in poor medical condition (overweight, smokers, unrelated heart disease, etc.) and poor family medical histories may be more likely to contract a disease or illness than others in similar circumstances would not, clouding the relationship between the occupation and the illness. For example, smokers may be ill-equipped to fight off the effects of chemical concentrations to which others may have no problem being exposed.

Industrial commissions and courts: 1) compile the opinion of the treating physician and the opinions of other expert medical witnesses; 2) couple the medical evidence with the facts surrounding the case; and 3) compare the subject case with precedent to render a compensability ruling based on the facts. This process can sometimes take years.

What About the “Named” Flues, Ebola, and the Zika Virus

Judged against the qualifying factors presented, are any of these sicknesses or diseases true workers’ compensation exposures for most employers? The short answer is, “no, not likely.” Other than the fact that these illnesses have garnered intense attention in the news, they are no more occupational in nature than a non-pandemic, “no-name,” everyday flu.

Unless!

If it is proven that the employee has an increased risk of contracting any of these due to the peculiarity of his job, then such diseases/viruses might be considered occupational and thus compensable. Remember, is there something about the job that increases the risk of exposure?

Which Policy Responds to Qualifying Occupation Illnesses and Diseases?

Occupational illnesses and diseases generally have long “gestation” periods. Employees may be exposed to the harmful condition for many years before the illness manifests. It is also possible that the employee doesn’t contract the disease until years after the exposure ends.

The workers’ compensation policy specifically states that the policy in effect at the employee’s last exposure responds to the illness — even if the employee is working for another employer at the time the disease manifests itself.

Conclusion

Occupational illness or disease resulting in injury tends to lend itself to litigation. Since there is rarely a definable place or time of the injury, industrial commissions and courts will likely continue to play a large role in these claims. Employees’ personal habits and medical histories will, likewise, continue to find their way into the piles of evidence as workers’ compensation carriers look for legitimate ways to deny coverage.

Contracting these and other diseases is a humankind exposure rather than one that is peculiar to most employments. It is unlikely that both the “occupational” and “compensable” thresholds will be crossed by the vast majority of individuals succumbing to any of these condition. The key question is and will remain, is the illness peculiar to the job? If not, the illness is not compensable.

Information for this article is taken from “The Insurance Professional’s Practical Guide to Workers’ Compensation: From History through Audit – Second Edition.”

Topics Workers' Compensation Talent