Is the H1N1 Virus Compensable Under Workers’ Compensation?

Is the H1N1 Virus Compensable Under Workers’ Compensation?

Illnesses and diseases must first arise out of and be in the course and scope of employment before being considered “occupational.” Further, to be compensable, the illness or disease must arise out of or be caused by conditions peculiar to the work.
 
Black lung disease, for example, results from prolonged exposure to higher-than-normal concentrations of coal dust, making it 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.
 
Qualifying an illness or disease first as occupational and secondly compensable may ultimately require industrial commission or court intervention to sort medical opinion from legal facts. There is no singular test that can be applied 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 is not necessarily based on the disease but on the facts surrounding the patient's sickness. Physicians will 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.
 
But What About the Swine Flu (H1N1)
 
Judged against the qualifying factors presented, is the swine flu a true workers’ compensation exposure for most employers? The short answer is, “no, not likely.” Other than the fact that this illness has an attention-getting name, it is no more occupational in nature than the “no-name” flu.
 
Unless it can be proven that the employee has an increased risk because of a peculiarity of his job, this illness is not occupational. Employees working in the healthcare industry may be able to prove such increased risk as they have little choice but expose themselves to the bacteria as a regular part of their job duties. Beyond healthcare workers, not many employments will qualify for workers’ compensation protection.
 
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 swine flu (H1N1) is a humankind exposure rather than one that is peculiar to most employments. It is unlikely that the “occupational” and “compensable” thresholds will be crossed by the vast majority of individuals succumbing to the virus. The key question remains, is the illness peculiar to the job? If not, the illness is not occupational nor compensable.
 
 
 
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