Employers/Insurers Who Treat Ebola as Occupational Disease Do So at Their Peril

Workers in any profession can show a work connection to ebola and need not prove that ebola is a risk peculiar to their job

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

Employers and insurance carriers who treat ebola as an occupational disease and who think that they are “immune” from comp claims because the risk of contracting the deadly virus is not “peculiar” to their industry, do so at their peril.  While the risks of ebola do appear to be greater among health care workers, its suddenness of onset, even in the face of significant precautions, suggests that ordinary workers’ compensation rules related to injuries by accident arising out of and in the course of the employment will apply and not those related to occupational diseases.  Where there is a clear causal connection between the ebola virus and the workplace, a worker may likely establish a compensable claim.

The Argument That the Risk of Ebola Must Be “Peculiar” to the Employment Is Incorrect

I point this out because I’ve read multiple posts by employer representatives and insurance execs during the past few days saying that employers, other than those in healthcare, need not be unduly concerned with ebola claims since they are so clearly non-compensable. While I generally agree with my esteemed colleagues—there won’t likely be a flood of compensable claims—I don’t agree with their rationale. Let me explain.

The typical employer/insurer argument that I’m hearing goes as follows: first, in order to recover workers’ compensation benefits for an illness or disease, the exposure must be “occupational,” that is to say, it must arise out and be contracted in the course of the employment (the classic “AOE/COE” formula), and second, that the ultimate compensability of an illness or disease depends 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.

The argument continues that the first rung in the recovery ladder—qualifying as “occupational”—is an easy step. The problem, say the insurance analysts, is with the second rung— that the employee be able to show that the risk of illness or disease was “peculiar” to their work. The experts reason that since the risk of ebola lies mainly within the health care field, employers in other industrial sectors do not face significant risk.

Let’s Be Clear: Ebola Is Not an Occupational Disease

The above-described employer/carrier contention treats ebola as an occupational disease. With all due respect to my colleagues, it is not. Indeed, as indicated by various analysts, an occupational disease is one whose risk is generally “peculiar” to a particular industry—e.g., brown lung (byssinosis), within the cotton textile industry (when the United States had a textile industry); black lung (pneumoconiosis), within the coal industry; asbestosis or mesothelioma, for those whose work involved contact with asbestos; certain instances of hearing loss).

Rather than occurring predominantly within a particular industry, ebola is a disease that currently occurs predominantly in one geographical area: West Africa. And in West Africa, it has no peculiar vocational characteristic at all. It has become, unfortunately, a disease of common life. And unlike brown lung, black lung, and many occupational diseases, ebola isn’t contracted over an extended time frame; it strikes quite quickly.

Ebola as Accidental Injury Rather Than Occupational Disease

I suggest that because ebola is not an occupational disease, an infected claimant need not establish that his or her risk of contracting the horrific condition is “peculiar” to the employment, but rather that the claimant must prove the work connectedness of the disease (the standard AOE/COE formula) [see Larson’s Workers’ Compensation Law, §§ 5.05, 51.01 et seq.]. To do so in many states, the employee need not show that he or she faced any sort of increased risk of disease; they may recover if they can show that they faced an actual risk.  Consider, for example, the following diseases/conditions (cases link to Lexis Advance):

Polio?

In the time period before widespread inoculation, was the risk of contracting polio “peculiar” to the nursing industry? Close call, perhaps, but in reality, the disease was quite pervasive, attacking even New York politicians who would later be President.  But, for the sake of the argument, let’s assume for the moment that the risk of contracting polio was “peculiar” to the medical care professions. One wouldn’t be surprised, therefore, if a nurse in a polio ward was awarded workers’ compensation benefits, as was the case in Industrial Comm’n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952). One should recognize, however, that the rationale for the court’s decision was that the nurse had sustained an accidental injury arising out of and in the course of her employment—not that she had contracted an occupational disease.

Ocular Herpes?

Is the risk of contracting ocular herpes “peculiar” to kindergarten teachers? I think not, and yet the claimant 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) recovered benefits for the disease 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.

Coccidioidomycosis (Valley Fever)?

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 was hired to travel through California, Arizona, New Mexico, and Texas.  The commission found that the employee had contracted the disease while in the San Joaquin Valley on the business of his employer. The court also found that the evidence that the disease was endemic to the San Joaquin Valley, that the spores causing it were found in the soil there, that it was acquired by an inhalation of those spores that were borne on the wind, that the employee contracted the disease, and that the employee had not been in the San Joaquin Valley except in the course of his employment, supported the commission's finding. 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. 

More recently, in Jacobs v. Western Municipal Water Dist., 2011 Cal. Wrk. Comp. P.D. LEXIS 74, again on AOE/COE grounds, not occupational illness grounds, the California Workers’ Compensation Appeals Board held that there was substantial evidence to support the WCJ's finding that a senior operation tech II met the burden of proving that he suffered injury AOE/COE in form of disseminated coccidiomycosis (valley fever), when he worked in an area where coccidiomycosis fungus was known to exist, applicant's testimony, which was found to be credible, showed that he had worked outside his plant during excavation on many days exposing him to dusts and fungus, and a qualified medical evaluator opined that it was very highly medically probable that this exposure caused applicant's injury.

Flesh-eating Bacteria?

How about school cafeteria cooks? Is the risk of contracting necrotizing fasciitis, sometimes called “flesh-eating bacteria,” “peculiar” to that profession? It would not seem so. In Heaton v. Board of Educ., 2000 Tenn. LEXIS 39 (Tenn. Special Workers’ Comp. App. Panel Jan. 14, 2000), adopted and affirmed, 2000 Tenn. LEXIS 33 (Tenn. Jan. 14, 2000), a cafeteria cook apparently suffered a wound while preparing turkeys at work that resulted in her contracting the unusual disease, which quickly led to her death. The court found that it was immaterial whether the decedent received the cut from a turkey bone, a knife, or a plastic tie. If the cut provided access for the infection, her death was work-related.  No occupational disease here—the decision was based on accidental injury grounds.

Tuberculosis?

Consider Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130; 341 N.E.2d 527; 379 N.Y.S.2d 3 (1975), in which the appellate court reinstated an award of workers’ compensation benefits to a state prison employee who contended he contracted tuberculosis from an infected inmate while working for the prison. The New York court specifically found that compensation for diseases resulting from industrial accidents, including those caused by germs, had earlier been sustained and would again be sustained in the court’s decision.

Mumps?

How about mumps? Is the risk of contracting that disease “peculiar” to elementary teachers? Some might say, “yes,” but a New York court did not need to rely upon the peculiarity of the risk faced by a claimant in McDonough v. Whitney Point Central School, 15 A.D.2d 191; 222 N.Y.S.2d 678 (1961). The claimant, a first grade teacher in a school that suffered an outbreak of mumps, contracted the disease and subsequently developed encephalitis. Her physician testified that the claimant contracted mumps from close contact with one of her pupils. The Board found that the disease was compensable because it was contracted accidentally. The court stated that a disease contracted at employment was compensable when it was assignable to a determinate or single act, identified in space or time and when it was assignable to something catastrophic or extraordinary. Sound like ebola?  The court also found that the outbreak of mumps was an epidemic of sufficient gravity to constitute the disease as an accidental injury.

Rare Condition, Such as Meningococcal Sepsis?

Pennsylvania, whose statute does not require a showing of added risk, has produced a case in which even a momentary exposure to a rare disease was sufficient to establish work-connection. 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.

According to testimony elicited at trial, the disease is caused by an organism, which survives only in the nasal pharynx and is transmitted through inhalation of droplets of infected nasal pharyngeal secretions. Not every person exposed to the organism, however, is susceptible to the ill effects of the disease. Statistics indicate that 70 percent of the adult population exposed to the disease are not susceptible to its ill effects, while approximately 30 percent have no immunity to it. Between 7 and 10 percent of the persons become carriers of the disease.

The city refused the claim filed by the deceased’s surviving spouse. The Appeal Board affirmed an award of death benefits, and the city appealed. The commonwealth court affirmed. The court reasoned that the deceased employee had not stepped outside the employment when he gave the co-employee an innocent reflection of goodwill. Specifically following the reasoning of Larson [current § 5.05], the court held that, because the Pennsylvania Workers’ Compensation Act did not require added or peculiar risks, but simply compensated for injuries arising within the course of employment, the “injury” was compensable.

Other Cases Where No “Peculiar” Risk Was Required

There have been a number of other cases in which courts have awarded workers’ compensation benefits to employees based upon a showing of work-connectedness between the disease and the workplace, without a special showing that the vocation faced some sort of “peculiar” risk. Consider the following:

> Rocky Mountain Spotted Fever - Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910 (1933)

> Infectious viral hepatitis contracted in Bolivia because of insanitary conditions - Lothrop v. Hamilton Wright Organizations, Inc., 45 A.D.2d 784, 356 N.Y.S.2d 730 (1974)

> Death resulting from mosquito bite/sting while in Africa - Lepow v. Lepow Knitting Mills, Inc., 288 N.Y. 377; 43 N.E.2d 450 (1942)

> Typhus from tick bite - Oalmann v. Brock & Blevins Co., 428 So. 2d 892 (La. App. 1983)

> Amoebic dysentery contracted by a worker who used the same tools and water container as an infected co-worker - Allen v. Public Service Co., 122 Ind. App. 421, 104 N.E.2d 756 (1952). Here no award was made; plaintiff’s negligence action against employer for allowing the conditions was found barred by exclusivity.

Employers Beware: Workers in Any Profession Stand a Good Chance of Prevailing When Causal Connection Shown Between Workplace and Ebola

Historically, the two crucial points of distinction between industrial injuries (AOE/COE-type claims) and occupational disease claims have been (i) the element of unexpectedness and (ii) the matter of time-definiteness [See Larson, § 52.03]. In former years, what set occupational diseases apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as inherent hazard of continued exposure to conditions of the particular employment, and the fact that they were gradual rather than sudden in onset.

Workers’ compensation law has always recognized the possibility that what might ordinarily be an occupational disease could be converted to an accidental injury by an unusual and sudden dosage of the same kind of dust or fumes that, absorbed gradually over a long period, would produce a typical industrial disease. Additionally, occupational disease might be transformed to accidental injury by the presence of some untoward little incident or breakage or abnormality, like absorbing harmful fumes because of an accidental defect in a gas mask [see Dailey v. River Raisin Paper Co., 269 Mich. 443, 257 N.W. 857 (1934)], or in one of the situations (like Rocky Mountain spotted fever) described above.

Because of the suddenness of the outbreak of ebola, because the nurses who have so far contracted the disease were wearing specialized medical gear that may or may not have malfunctioned, because there may have been a lapse in emergency protocols or even a shifting of those protocols by the Centers for Disease Control, the ebola situation has a great deal more in common with classic accidental injury cases than with pneumoconiosis or silicosis claims.  Employers who rely upon the apparent safety of occupational disease definitions, particularly employers outside the health care industry do so without solid ground beneath them. Where a worker—in any profession—can show a clear causal connection between the workplace and the ebola, he or she stands an excellent chance of prevailing in their workers’ compensation claim.

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