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COVID-19 Compensability Analysis

| Mar 9, 2020 | Blog, COVID-19, Workers' Compensation Defense |

Background

Coronavirus Disease 2019 (COVID-19) is currently spreading across the globe, affecting dozens of countries. Thirteen states in the USA are reporting COVID-19 cases as of the date of this memorandum. According to the CDC, it is believed COVID-19 is spreading from person-to-person through close contact with one another (within six feet) through respiratory droplets produced when an infected person coughs or sneezes. Additionally, “it may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads.” https://www.cdc.gov/coronavirus/2019-ncov/about/transmission.html.

Compensability of PATHOGENS & Diseases in Iowa

  1. Statutes

The Iowa legislature has set forth two workers’ compensation schemes: one for injuries under Iowa Code chapter 85 and one for occupational diseases under chapter 85A. In order to qualify for workers’ compensation benefits under chapter 85, the claimant must demonstrate that (1) he or she suffered a ‘personal injury,’ (2) the claimant and the respondent had an employer-employee relationship, (3) the injury arose out of the employment, and (4) the injury arose in the course of the employment. See IBP, Inc. v. Burress, 779 N.W.2d 210, 214 (Iowa 2010) (citing Meyer v. IBP, Inc., 710 N.W.2d 213, 220 (Iowa 2006)).  The workplace incident or exposure need only be “a” material factor in causing and/or aggravating the condition; it need not be “the” only factor.  The burden is upon the claimant to prove compensability by a “preponderance of the evidence”.

Generally, an “injury” under the guise of workers’ compensation coverage means:

“An injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee…The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part of all of the body.  This is the personal injury contemplated by the workers’ compensation statute.”  St. Luke’s Hospital v. Gray, 604 N.W.2d 646, 650-51 (Iowa 2000)(citations omitted).

In order to recover benefits under the Occupational Disease Act (chapter 85A), a claimant must show: (1) his or her occupational disease was causally related to the exposure to harmful conditions of his or her field of employment, and (2) those harmful conditions were more prevalent in the claimant’s employment than in everyday life or in other occupations. Serratos v. Tyson Foods, 817 N.W.2d 31 (Iowa Ct. App. 2012) (citing IBP, Inc. v. Burress, 779 N.W.2d 210, 214 (Iowa 2010) (reciting standard set out in McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980)); see also Iowa Code § 85A.8. Claimant bears the burden of proving both elements by a preponderance of the evidence. Id. (citing Frit Ind. v. Langenwalter, 443 N.W.2d 88, 90 (Iowa Ct. App. 1989)).

Iowa Code § 85A.8 further prescribes the following clarification with respect to the nexus between the “disease” and workplace exposure:

“Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment.  Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence.  A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease” (emphasis added).

  1. Case Law

Despite the obvious fact that COVID-19 is a disease, existing case law suggests there may be a debate over whether or not it should be treated as an injury subject to Chapter 85 or an occupational disease subject to Chapter 85A.

The word “injury” is not well defined by the Workers’ Compensation Act, which has led to a number of cases further clarifying the distinction between it and “occupational disease.” “Under section 85.61(4)(b), the word ‘injury’ ‘shall not include a disease unless it shall result from the injury and . . . shall not include an occupational disease as defined in section 85A.8.’” IBP, 779 N.W.2d at 214-215.

The Court in IBP stated:

Our case law has filled the gap and explained the differences between an occupational disease and an injury.

“[A]n ‘injury’ is distinguished from a ‘disease’ by virtue of the fact that an injury has its origin in a specific identifiable trauma or physical occurrence or, in the case of repetitive trauma, a series of such occurrences. A disease, on the other hand, originates from a source that is neither traumatic nor physical….”

Noble, 512 N.W.2d at 295 (quoting Luttrell v. Indus. Comm’n, 154 Ill. App. 3d 943, 507 N.E.2d 533, 541-42, 107 Ill. Dec. 620 (Ill. App. Ct. 1987)). Thus, the main distinction between an injury and an occupational disease is the method of contraction.

“The statutory definition describes an occupational disease in terms of a worker’s ‘exposure’ to conditions in the workplace…. The term ‘exposure’ indicates a passive relationship between the worker and his work environment rather than an event or occurrence, or series of occurrences, which constitute injury under the Worker’s Compensation Act.”

Id. (quoting Duvall v. ICI Americas, Inc., 621 N.E.2d 1122, 1125 (Ind. Ct. App. 1993)). We have also determined that, under certain circumstances, a disease can be an injury for purposes of chapter 85.

“The contraction of disease is deemed an injury by accident in most states if due to some unexpected or unusual event or exposure. Thus, infectious disease may be held accidental if the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection.”

Perkins, 651 N.W.2d at 43-44 (quoting 3 Arthur Larson & Lex K. Larson, Larson’s Workmen’s Compensation Law ch. 51, Scope, at 51-1 (2002)).

What types of diseases are strictly occupational diseases and not injuries is debatable. Prior to 1973, chapter 85A restricted recovery for occupational diseases to seventeen diseases specifically listed in Iowa Code section 85A.9 (1971). See McSpadden, 288 N.W.2d at 190. In 1973, the legislature repealed that section and broadened the definition of occupational disease in section 85A.8. Id.; see also 1973 Iowa Acts ch. 144, § 24. Currently, chapter 85A makes reference to only two diseases, brucellosis in section 85A.11 and pneumoconiosis (“the characteristic fibrotic condition of the lungs caused by the inhalation of dust particles”) in section 85A.13. Our case law has permitted recovery for allergic contact dermatitis and lead intoxication under chapter 85A. See Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 432 (Iowa 1984); Frit Indus. v. Langenwalter, 443 N.W.2d 88, 91 (Iowa Ct. App. 1989). But see St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000) (allergic reactions may be considered injuries under chapter 85). In McSpadden, we noted other states considered the following to be occupational diseases: chronic bronchitis, kidney disorder and asthma caused by inhalation of paint fumes, and pulmonary disease caused by inhalation of smoke and fumes. McSpadden, 288 N.W.2d at 190-91 n.5. Although chapter 85A no longer limits recovery for occupational diseases to a specific schedule, section 85A.8 and our case law indicate an occupational disease is generally acquired from repeated exposure to a toxin in the workplaceSee Doerfer, 359 N.W.2d at 432-33.

Other states have determined that “under the proper factual situations the contraction of brucellosis can be characterized as an accidental injury” rather than an occupational disease. Wilson Foods Corp. v. Porter, 1980 OK 77, 612 P.2d 261, 263 (Okla. 1980). Recognizing that “in spite of being recognized as a disease, brucellosis can still be categorized as a[n] accidental personal injury,” the Supreme Court of Oklahoma determined an employee who contracted brucellosis through cracks in his skin while working with cowhides had a compensable injury. Id.; see also Baldwin v. Jensen-Salsbery Labs., 10 Kan. App. 2d 673, 708 P.2d 556, 557-58 (Kan. Ct. App. 1985) (brucellosis considered accidental injury where employee cut his hand and then touched a tool contaminated with brucella); Mid-South Packers, Inc. v. Hanson, 253 Miss. 703, 178 So. 2d 689, 690-91 (Miss. 1965) (contamination through cuts and scrapes on maintenance worker’s hands considered to be accidental injury and not an occupational disease because “contraction of [brucellosis] was an occurrence which was not expected, designed, or intentionally caused”).

IBP, 779 at 215-16.

The Doerfer case from 1984 involved a claimant who worked for approximately two years in machine shops during which time he was regularly exposed to coolant used in the process of cutting metal along with chrome, nickel and other substances. He was eventually diagnosed with allergic contact dermatitis hypersensitive reaction as a result of these repeated exposures. The Court did not address the issue of whether the claimant’s condition was an injury or occupational disease because the parties did not raise that as a dispute. Nevertheless, it was noted that expert medical evidence fully supported the agency’s finding that the claimant’s dermatitis was an occupational disease related to his repeated exposure to the irritants.

Similarly, in Firt Indus. (1989) the claimant worked as a maintenance leadman for about eight years and was exposed to lead in the workplace over time causing him to develop a variety of symptoms ultimately deemed compensable under the Occupational Disease Act.

The case of St. Luke’s Hosp. (2000) involved a nurse who developed symptoms of latex allergy after about five years of employment. The commissioner determined that the latex allergy was compensable as an injury under chapter 85 of the Code. St. Luke’s disagreed. The Court discussed case law from Mississippi in which it was discussed that asthma, for instance, was “not a disease known to be incidental to that particular employment” but rather was related to claimant’s personal health condition. Therefore, asthma was held by the Mississippi court to be an injury and not an occupational disease. Oddly, the Court in St. Luke’s Hosp. also cited to and relied upon case law from Alabama holding that allergic contact dermatitis was compensable as an injury as opposed to an occupational disease. This appears to be the opposite of the holding in Doerfer.

Shortly thereafter, the Iowa Supreme Court in Perkins v. HEA of Iowa, Inc., 651 N.W.2d 40 (Iowa 2002) addressed whether a claimant’s diagnosis of hepatitis C was an injury or an occupational disease. Perkins was a nurse at a retirement facility when she was sprayed with blood when a patient’s leg ruptured with a shunt in it. The nurse had blood all over her body and in her mouth, eyes and ears. The patient was infected with hepatitis C and the nurse was subsequently was diagnosed with that as well. The Court found the exposure was an “injury and noting “[i]t is significant in determining whether Perkins suffered an occupational disease, or an injury under workers’ compensation, that Perkins’ infection was linked to a sudden, specific incident of exposure.” Id. at 43-44 (emphasis added).

In IBP v. Burress, the claimant worked in a hog factory for about 10 years and during that time he was regularly exposed to hog blood. Additionally, while exposed to hog blood, he cut his finger. He also had two more cuts and a facial puncture wound while working a different position that occasionally involved contact with hog blood. About seven years after leaving his job, the claimant was “diagnosed with brucellosis from hog blood, with skin abrasions being the most common ‘portal of entry.’” IBP, 779 N.W.2d at 212-13. The employer disputed the claimant’s contention that he sustained an injury and instead argued the claimed injury was an occupational disease such that it was subject to the defense of statute of repose under Iowa Code section 85A.12 (requiring death or disablement within one year after the last injurious exposure to the disease in the employment). Note also that the discovery rule, while applicable to the statute of limitations under the Workers’ Compensation Act, is inapplicable to the statute of repose of the Occupational Disease Act. The Court held that the claimant’s brucellosis was an injury, stating “Burress did not contract brucellosis through prolonged or passive exposure; it only took one traumatic exposure.” Id. at 217 (emphasis added).

  1. Fact-Specific Coronavirus Information, Issues and Arguments

Coronavirus Disease 2019 (COVID-19) is, of course, a disease; and Chapter 85A of the Iowa Code (the Occupational Disease Law) unsurprisingly applies to occupational diseases. As indicated above, however, a disease may be compensable as an injury under Chapter 85 (the Workers’ Compensation Act). “The contraction of disease is deemed an injury by accident in most states if due to some unexpected or unusual event or exposure. Thus, infectious disease may be held accidental if the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection.” Perkins, 651 N.W.2d at 43-44.

The CDC states it is believed COVID-19 is currently spreading from person-to-person through close contact with one another (within six feet) through respiratory droplets produced when an infected person coughs or sneezes. Additionally, “it may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads.” https://www.cdc.gov/coronavirus/2019-ncov/about/transmission.html.

It should be beneficial to employers to have COVID-19 treated as an occupational disease (under Chapter 85A) as opposed to an injury (compensable under the Chapter 85). Chapter 85A contains numerous defenses and limiting arguments that do not exist under Chapter 85, such as the statute of repose, and defenses under section 85A.7.

Developing expert evidence that COVID-19 is contracted not because of some unexpected or unusual event or exposure or as a result of germs gaining entrance through a scratch, but through the foreseeable and anticipated inhalation or contact with respiratory droplets of an infected person would likely be very important to defeating a claim that COVID-19 is an injury as opposed to an occupational disease.

If COVID-19 is deemed an occupational disease, then a claim for it would be limited to only those employees who can prove that (1) contracting COVID-19 was causally related to the exposure to harmful conditions of the claimant’s field of employment, and (2) those harmful conditions were more prevalent in the claimant’s employment than in everyday life or in other occupations. Thus, a common-sense argument would exist that contraction of COVID-19 would only be compensable for employees in the healthcare industry (nurses, physicians, their staff and emergency medical personnel, etc.) or other similar industries where an increased risk of exposure to COVID-19 is tied to the nature of the employment. The claimant would have the burden of proving these two elements by a preponderance of the evidence.

Indeed, the CDC is concerned about healthcare workers being exposed to COVID-19. Their guidance to healthcare workers begins with the recommendation, when dealing with PUI (persons under investigation for COVID-19), to “[m]ake every effort to interview the PUI by telephone, text monitoring system, or video conference. If public health personnel must interview a PUI in their home, the public health personnel should wear recommended personal protective equipment (PPE), including a gown, gloves, eye protection (e.g., goggles, a disposable face shield that covers the front and sides of the face), and respiratory protection that is at least as protective as a NIOSH-approved N95 filtering facepiece respirator, as recommended in the Interim Infection Prevention and Control Recommendations for Patients with Confirmed Coronavirus Disease 2019 (COVID-19) or Persons Under Investigation for COVID-19 in Healthcare Settings. The CDC recommends that healthcare providers perform hand hygiene with alcohol-based hand sanitizer that contains 60 to 95% alcohol both before and after the removal of PPE. https://www.cdc.gov/coronavirus/2019-ncov/php/guidance-evaluating-pui.html.

It certainly appears that COVID-19 is infecting people without any injury and instead through exposure to harmful conditions (i.e., through close contact with a person with COVID-19 through respiratory droplets produced when an infected person coughs or sneezes).

 

If, on the other hand, COVID-19 is held to be an injury under Chapter 85, then any employee in any form of occupation who contracts it could plausibly and theoretically make a claim for it without necessarily having to prove that the presence of and risk of exposure to COVID-19 is greater in their employment than in everyday life or in other occupations.  For instance, the “actual risk” doctrine was affirmed by the Iowa Supreme Court in Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007), and is explicated as follows:

“If the nature of the employment exposes the employee to the risk of such an injury, the employee suffers an accidental injury arising out of and during the course of the employment.  And it makes no difference that the risk was common to the general public on the day of the injury” (emphasis added).  Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990).

Proving causation, however, may become a very high hurdle to clear for such an employee – depending perhaps on the extent to which COVID-19 pervades the employee’s community and life.  In other words, the more prevalent COVID-19 becomes, the more difficult it ostensibly is for a claimant to prove there was anything about his/her employment which posed an “actual risk” to the worker and was not merely “coincidentally” contracted.  Indeed, the more prevalent COVID-19 is in the general population, the more challenging it becomes, if not impossible, for a claimant to prove that he/she contracted the virus while in the workplace.

This is obviously a developing situation and we’ll be sure to supplement our analysis as-needed.

This blog post was written by Edward Rose and Jordan Kaplan.  

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