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Workers' Compensation

Larson's Spotlight: Exposure to Contagious Disease

Insurance experts say that the property/casualty insurance sector most likely to see swine flu claims is the workers' compensation line. The following article examines contagious disease in the workplace as well as for traveling employees.

Increased Risk of Exposure to Contagious Disease

Exposure to contagion in principle resembles exposure to heat, cold, and the elements generally, and it is not surprising, therefore, to find the majority of cases demanding a showing of increased exposure to contagion. In an early California case,1 claimant, in the course of his duties, visited a city that had a typhoid epidemic, but was denied compensation when he contracted typhoid, on the ground that the exposure was no different from that of the community generally. Observe, however, the same tendency here that was pointed out in the freezing and sunstroke cases: The comparison is evidently made with a selected group, a community that already is in the grip of the epidemic, and that claimant visited only because of the employment.

However, in a later California case2 the same court awarded compensation to a salesperson who contracted San Joaquin Valley fever while traveling in the valley. It met the argument of common risk partly by stating at the outset that ''[t]he injuries suffered to be compensable need not be of the kind anticipated by the employer or peculiar to the employment,'' and partly by saying, in any case, the risk to the salesperson was not the same as that of the community, since the salesperson did not enjoy the degree of immunity built up by local residents. Although other distinctions between the two cases can be cited,3 the later case seems to represent at least the beginning of a transition from the peculiar- to the actual-risk approach.

Proof of Work-connection of Contagious Disease

In all these contagious-disease cases, it is impossible to divorce the increased-risk issue from the evidentiary question whether the claimant in fact contracted the disease in the particular place to which the employment took claimant. Several cases have allowed recovery on the ''preponderance of probabilities,'' when the place of work was attended with a much higher proportionate risk of infection; and by the same showing, of course, the requirement of increased risk for purposes of the ''arising'' test was satisfied.

For example, compensation was awarded for the death from Rocky Mountain spotted fever of a salesperson whose duties required frequent trips through territory infested with wood ticks, although there was also evidence of two personal trips into the infested territory,4 for the death of an employee sent to Peru during a typhoid epidemic to which foreigners would be peculiarly susceptible,5 for death from infectious viral hepatitis contracted in Bolivia because of insanitary conditions,6 for influenza contracted by an employee who, at the employer's direction, cared for several other employees suffering from the disease,7 for hepatitis contracted by a hospital nurse,8 for influenza contracted by a steward in a municipal hospital during an epidemic, with ''five to eight times as great'' likelihood of exposure while in the hospital as while outside,9 for smallpox allegedly contracted by a refrigerator repairer from eating ice cream given by the janitor of a hospital where the repairer was doing work,10 for malaria contracted by a salesperson on a business trip to South Africa,11 for tuberculosis contracted by a Red Cross worker in Japan, where the incidence was higher than in her former station, the District of Columbia,12 for a particular type of influenza contracted in the Orient,13 for ''flesh eating bacteria,'' contracted by a public school cook,13.1 and for tuberculosis contracted by an animal keeper by contact with infected animals at a zoo.14

The question has also arisen whether an employee suffers a compensable injury when he or she is exposed to a potentially fatal contagious disease but has not yet contracted the disease.15

Contagious Disease Contracted From Co-worker

An area that has received increasing attention is that of diseases contracted solely because a co-worker had the disease. If the tools and facilities of the employment contributed to the transmission, the disease has been held to arise out of the employment. Thus, where an employee had to climb the same poles, use the same tools, drink from the same water container, and work all day with a co-employee who had a contagious amoebic dysentery, the employee could not maintain a negligence action against the employer for contracting the disease, since the employee's exclusive remedy was under the compensation act.16 The court handled the exposure question by saying: ''Under the facts here alleged it was not a disease contracted by an employee through such usual intercourse with his fellow workman as is common among men, but was contracted because of unusual circumstances connected with the employment."17

Harman v. Republic Aviation Corp.18 presented a somewhat similar fact situation, unaided by the special transmission facilities, but it was decided on other grounds. Claimant worked constantly only a few feet from a co-worker with active pulmonary tuberculosis, and shortly after the co-worker got it, claimant contracted it from that co-worker. Unfortunately, since the New York act did not cover diseases generally, but only occupational diseases or those that are accidental or follow accidents, the entire issue became the question whether this was an occupational disease, and the Court of Appeals held that it was not.

More recently, however, the Court of Appeals found it possible to award compensation, on what appear to be essentially similar facts, by stressing the accidental character of the episodes of exposure. The claimant was a correctional officer whose duty was the running of the correctional institution's cannery. For three or four months and two or three hours a day, claimant worked within a foot of an inmate who coughed constantly and later was found to be tubercular. The most recent exposure was in the fall. In the spring, the claimant began to cough. The following December claimant was found to have tuberculosis. The court of appeals reinstated the board's award. The episode was held to be sufficiently identifiable in time and space to be compensable as an accidental injury by contagious disease. ''[T]he time-definiteness required of an accident was satisfied by application to the result.... [T]he inception of the tuberculosis was a determinable event assignable, as found by the board, to the repeated traumata due to the persistent coughing, and which were extraordinary in nature."19

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.,20 the deceased, a supervisor for the city, died as a result of a rare, non-occupational disease, meningococcal septis, which the supervisor apparently contracted when he kissed a co-worker on the cheek prior to her leaving for maternity leave.

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% of the adult population who are exposed to the disease are not susceptible to its ill effects, while approximately 30% have no immunity to it. Between 7% and 10% of the persons become carriers of the disease.

The deceased's surviving spouse filed an application for workers' compensation death benefits. The city refused the claim. 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. Following the reasoning of Larson's Workers' Compensation Law, the court held that, because the Pennsylvania Workers' Compensation Act did not require added or peculiar risks but simply compensates for injuries arising within the course of employment, the ''injury'' was compensable.

The question, then, is whether, in a jurisdiction permitting awards for disease generally, the simple contracting of a disease from a fellow-employee would be held to arise out of the employment, assuming, of course, the evidence satisfactorily identified the fellow-employee as the source of the contagion. In theory, such diseases could be held compensable. The employment caused the exposure; the risk of contagion from the co-employee was a risk of the employment. Jurisdictions insisting upon added or peculiar risk might deny recovery on the ground that there was risk of such contagion on the streets, in the buses, and in the moving-picture theater; on the other hand, even in such jurisdictions, an award might well be supported by the argument that the employment throws people together at close quarters and thereby increases the risk of contagion. The two greatest practical obstacles to recovery would be, first, the problem of proof, and second, the fear of commissions and courts that they might be suddenly swamped with claims based on colds, grippe, and endless other common ills allegedly caught by their victims from fellow-employees.


1. LaTourette v. Workers' Comp. App. Bd., 54 Cal. App. 4th 1411, 63 Cal. Rptr. 2d 680 (1997), review granted, 66 Cal. Rptr. 2d 572, 941 P.2d 751 (1997). The decedent, a traveling employee, suffered a heart attack while away on business and died from a staph infection he contracted at the hospital where he sought treatment. The court held that because the risk to the decedent of getting a staph infection was not shown to be greater at the hospital where he was treated than it was at any other hospital, his death did not arise out of his employment.

Pattiani v. Industrial Accident Comm'n, 199 Cal. 596, 250 P. 864 (1926).

2. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 19 Cal. 2d 622, 122 P.2d 570 (1942).

But in Treadway v. Industrial Comm'n, 69 Ariz. 301, 213 P.2d 373 (1950), a claim for San Joaquin Valley fever was denied, for a variety of reasons, including complete failure to show exposure to contagion in the course of employment. The Arizona court was not impressed by the California court's ''non-scientific'' assertion that such fever was endemic in Arizona, but said that, even if it were, this would only serve to show that the entire community was subject to the same risk of exposure.

See also Crawford v. Industrial Comm'n, 23 Ariz. App. 578, 534 P.2d 1077 (1975) The claimant, an operator of a rock crushing machine in Arizona, developed valley fever. Eventually, the fever developed into coccimeningitis requiring the worker's hospitalization. The court held the worker's claim for benefits to be noncompensable. The court stated that it was ''simply not possible'' for a worker who lives and works out of doors in Arizona, whether in normal or abnormal dusty conditions, to sustain his burden of proof that his contracting of valley fever occurred in the course of his employment as opposed to any other time he was exposed to the endemic disease, whether at home, at play, or anywhere else.

3. E.g., the medical evidence of contracting the disease on the job was much stronger in the later case.

4. Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910 (1933).

5. Fidelity & Casualty Co. v. Industrial Accident Comm'n, 84 Cal. App. 506, 258 P. 698 (1927).

See also Oalmann v. Brock & Blevins Co., 428 So. 2d 892 ( La. App. 1983). The claimant had been employed at a construction site that had rats ''all over the place.'' While at the site, claimant had been bitten by fleas three or four times. He was hospitalized with initial symptoms of chills, high fever, and severe headache. The treating physician diagnosed his ailment as typhus fever. The physician testified that he had had a great deal of experience with typhus fever victims during an epidemic in 1946 and 1947, and that the disease is commonly transmitted by fleas from infected rats. There was some evidence that the claimant's symptoms were also consistent with infectious hepatitis and that members of claimant's family had hepatitis prior to claimant's illness, but the court held that claimant had satisfied his burden of proving that he had indeed contracted typhus fever from an ''accidental'' on-the-job flea bite. Benefits were awarded.

6. Lothrop v. Hamilton Wright Orgs., Inc., 45 A.D.2d 784, 356 N.Y.S.2d 730 (1974). Decedent, a photographer, entered into an agreement with a public relations firm to take still photographs for it in Bolivia. The decedent arrived in Bolivia in good health and proceeded to travel throughout the country taking pictures. The decedent, after leaving Bolivia, experienced symptoms of hepatitis. Thereafter, his condition was diagnosed as infectious viral hepatitis of the fulminant type. The decedent died as a result of the hepatitis. His widow brought a claim for workers' compensation benefits. The court held that the decedent's death from hepatitis was an industrial accident. By traveling in Bolivia, the decedent was necessarily exposed to deplorable sanitary conditions with regard to food and drink. As a result, he contracted the hepatitis. Larson's Workers' Compensation Law cited.

But cf. Albrecht v. Orange County Cmty. Coll., 46 N.Y.2d 959, 388 N.E.2d 737 (1979), aff'g, 61 A.D.2d 1068, 403 N.Y.S.2d 144 (1979)  The decedent was a teacher, who took a sabbatical leave in Ghana. Soon after reaching he was hospitalized for polio, and died in four days. He had a physical examination just before leaving, which indicated everything was normal. The Board denied compensation on what appeared to be two grounds: that the disease was not contracted in the course of employment, and there was no medical evidence of accidental injury. The Appellate Division affirmed the denial. It observed that the decision below was unclear on whether the Board believed a sabbatical was not in the course of employment, or whether the real ground was absence of accidental injury. In any event, no reading of the record could support compensability. The Court of Appeals in turn affirmed, interpreting the Appellate Division's opinion to indicate that the basic reason for its affirmance of the denial was absence of employment causal connection.

7. Engels Copper Mining Co. v. Industrial Accident Comm'n, 183 Cal. 714, 192 P. 845 (1920).

8. Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631, 600 P.2d 1015 (1979), rev'g, 20 Wn. App. 285, 579 P.2d 412 (1978). The claimant, a nurse in the intensive care unit of Sacred Heart Medical Center (Hospital), had contracted infectious hepatitis. A jury determined that her hepatitis was a compensable occupational disease, and the court awarded benefits. The Court of Appeals reversed, finding that the claimant had not shown that she had had any contact with a hepatitis patient while employed at the Hospital. Thus, they held, there was no evidence to support the finding that her illness was proximately caused by her employment. The Supreme Court reinstated the jury verdict, holding that the medical testimony, coupled with reasonable inferences drawn from the claimant's contact with hepatitis patients, was sufficient to establish that, more likely than not, she had contracted the disease at work. Larson's Workers' Compensation Law cited.

Contra Sperling v. Industrial Comm'n, 129 Ill. 2d 416, 135 Ill. Dec. 794, 544 N.E.2d 290 (1989). An operating room nurse sought workers' compensation benefits for hepatitis B, allegedly contracted due to contact with the disease in her occupational setting. Denial of benefits was affirmed by the supreme court. The commission's findings were not against the manifest weight of the evidence.

9. City & County of San Francisco v. Industrial Accident Comm'n, 183 Cal. 273, 191 P. 26 (1920).

McAllister v. Cosmopolitan Shipping Co., 169 F.2d 4 (2d Cir. 1948), sub nom. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L. Ed. 1692 (1949), while concerned with a jury verdict of negligence of the employer under the Jones Act, is interesting on the question of adequacy of evidence that a contagious disease was contracted due to employment conditions rather than privately. Claimant, during a polio epidemic in Shanghai, had spent some shore leaves there, but the employer had also permitted some Chinese residents to come aboard as cooks and stevedores and use the ship's facilities. A jury verdict of $100,000 was affirmed.

Although the etiology of a disease may be obscure, it is still possible to uphold an award where the causal connection has some support. A nurse who worked in the polio ward and was herself stricken with polio was awarded compensation, although the mode of transmission was not known, since there was evidence that the rate of incidence is higher among nurses and others constantly in contact with the disease. Industrial Comm'n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952).

Contra Martin v. Manchester Corp., 5 B.W.C.C. 259 (1912).

But cf. Chadwick v. Industrial Comm'n, 572 P.2d 400 ( Utah 1977). The claimant, a nurse, sought compensation for an eye infection which he asserted was contracted within the course of his employment with a hospital. A special medical panel reported that there was a comparatively high risk of infection in his employment, but there was no clear causal connection. The Commission denied the claim for compensation. The Supreme Court affirmed, stating that the possibility that the infection could have come from the hospital did not compel a finding that it was indeed the fact. 

10. Vilter Mfg. Co. v. Jahncke, 192 Wis. 362, 212 N.W. 641 (1927).

11. Lepow v. Lepow Knitting Mills, Inc., 288 N.Y. 377, 43 N.E.2d 450 (1942).

12. Travelers Ins. Co. v. Donovan, 125 F. Supp. 261 (D.D.C. 1954), aff'd, 221 F.2d 886, 95 U.S. App. D.C. 331 (D.C. Cir. 1955).

13. See also Olson v. Executive Travel MSP, Inc., 437 N.W.2d 645 ( Minn. 1989). The claimant became sick when she became infected with an influenza type B virus while she was on business in the Orient for her employer. She developed pneumonia which resulted in chronic bronchiectasis, a permanent impairment. The claimant sought permanent partial disability benefits. The employer/insurer argued that the claimant had sustained an ordinary disease of life and should not be compensated. The compensation judge ruled that the employee sustained a personal injury arising out of and in the course of employment, and additionally that the claimant's personal injury was an occupational disease. The court affirmed the award of permanent partial disability benefits, holding that the worker was entitled to compensation under the personal injury provision of the Workers' Compensation Act, and did not address the issue of whether it was a compensable occupational disease. The court viewed the causal connection between the claimant's illness and employment as minimal, but noted that the specific virus at the time was not present in the United States. Larson's Workers' Compensation Law cited in footnote.

But cf. Kletz v. Nuway Distribs., Inc., 62 Md. App. 158, 488 A.2d 978 (1985). Decedent, who had suffered from leukemia, died after contracting an infection of unknown etiology while traveling on business in the Orient. Summary judgment for the employer was affirmed, since there was no evidence that the risk of contracting this infection was any greater in the Orient than at home.

13.1. Heaton v. Board of Educ. of the City of Elizabethton, 2000 Tenn. LEXIS 39 ( Tenn. Jan. 14, 2000). Although there was some conflict in the evidence presented at trial, it appeared that the deceased had suffered a small cut on her finger while working with turkeys supplied to the school. A physician indicated that the turkeys were the likely source of the bacteria. Other evidence tended to show that shortly before the alleged incident with the turkeys, the deceased had undergone a routinely scheduled physical examination and blood tests at the time failed to show any evidence of the infection. The supreme court acknowledged the split in the evidence and affirmed since there was competent evidence to support the finding in favor of the surviving spouse.

14. Herdick v. New York Zoological Soc'y, 45 A.D.2d 120, 356 N.Y.S.2d 706 (1974). Claimant was an animal keeper at the Bronx Zoo. It was part of his duties to clean and feed the animals to which he was assigned. He had been assigned to work in the monkey cage and with a herd of deer. He was working with the deer and monkeys in 1965 when such animals became infected with tuberculosis. In 1967, the claimant started feeling tired and losing weight. He was diagnosed by his doctor as having tuberculosis of the lungs. The court held that the record amply established sufficient evidence that claimant's tuberculosis resulted from his contact with the animals in the zoo. There was contact with the animals when the claimant fed them and cleaned their cages, and there was direct evidence that one of the monkeys had a strain of tuberculosis identical to the strain of the claimant's tuberculosis. The court also held that the tuberculosis contracted by the animal keeper was an occupational disease. The tuberculosis was a natural incident to the claimant's job, and it was a disease that was a hazard in excess of employment in general.

15. Doe v. City of Stamford, 241 Conn. 692, 699 A.2d 52 (1997). The claimant here was a police officer who, in the first instance, was exposed to HIV in the course of dealing with a criminal suspect, and in a subsequent incident was exposed to tuberculosis while dealing with a criminal suspect. In subsequent testing, he did not test positive for either disease, but underwent follow-up testing and consultation. The court concluded that these exposures constituted compensable injuries under the Act.

See also Jackson Twp. Volunteer Fire Co. v. Workmen's Comp. App. Bd. (Wallet), 140 Pa. Commw. 620, 594 A.2d 826 (1991). Claimant was a volunteer for the Ambulance Association, a division of the fire company. He responded to a report of an automobile accident. The victim was pronounced dead at the scene. In the process of assisting others remove the body from the wreck, claimant got some of the victim's blood and body fluids on his hands and shirt. Later that evening he received a call from the coroner who advised him to go to the hospital. It had been discovered that the accident victim had AIDS and hepatitis. Blood was drawn for tests and claimant received shots to prevent hepatitis. He sought reimbursement for the tests and shots. The fire company refused to pay for the medical services, claiming the workers' compensation statute required reimbursement only for medical expenses arising from an injury under the Act. It argued that claimant had suffered no injury and was due no reimbursement.

The Appeal Board ordered payment of the expenses and the employer appealed. The commonwealth court affirmed. The term injury has been broadly defined for purposes of the workers' compensation act to include ''any hurtful or damaging effect which may be suffered by anyone.'' 594 A.2d at 828, quoting Pawlosky v. Workmen's Comp. App. Bd. (Latrobe Brewing Co.), 514 Pa. 450, 525 A.2d 1204 (1987). The court held that persons exposed to a serious risk of contracting a disease known to be highly contagious and potentially deadly have been ''injured'' for purposes of the Act.

16. Allen v. Public Serv. Co. of Ind., Inc., 122 Ind. App. 421, 104 N.E.2d 756 (1952).

Vanderbee v. Knape & Vogt Mfg. Co., 48 Mich. App. 488, 210 N.W.2d 801 (1973). Claimant went to work at a manufacturing company in 1963 as a tool and die maker. He worked in a press room where the noise level was so excessive that he and his co-worker would have to shout to each other with their heads no more than 6 inches to one foot apart. Claimant's co-worker had contracted tuberculosis and in 1964 claimant was hospitalized for the same disease. It was held that claimant contracted tuberculosis in the course of employment and the condition was brought about by the nature of such employment. The nature of the work in the present case required repeated mutual handling of tools and conversations using loud voices at close range. The court used Mills v. Detroit Tuberculosis Sanitarium, 323 Mich. 200, 35 N.W.2d 239 (1948), as authority for its position.

Accord Hovancik v. General Aniline & Film Corp., 8 A.D.2d 171, 187 N.Y.S.2d 28 (1959), involving sharing a pipette four or five times with a tuberculous co-employee.

See also Mason v. Y. M.C.A., 68 N.Y.S.2d 510 (N.Y. App. Div. 1949). Tuberculosis contracted from a fellow-operator was held to be a compensable occupational disease because a close-fitting telephone mouthpiece figured in the transmission.

17. 104 N.E.2d 756 at 757.

18. Harman v. Republic Aviation Corp., 298 N.Y. 285, 82 N.E.2d 785 (1948).

DiMarco v. State Univ. of N.Y., 39 A.D.2d 623, 331 N.Y.S.2d 47 (1972). Infectious hepatitis allegedly contracted by a university employee due to exposure to a student with the disease held not compensable, since the mere exposure was neither ''catastrophic'' nor ''extraordinary.''

See also Dansky v. Cardillo, 40 F. Supp. 336 (D.D.C. 1941), denying compensation for tuberculosis allegedly contracted from tuberculous co-employee, on ground of failure to show that the disease was in fact so contracted when facts showed nothing more than use of the same fountain, telephone, etc.

And see Richardson v. Greenberg, 188 A.D. 248, 176 N.Y.S. 651 (1919), denying compensation for glanders contracted from a horse which it was claimant's job to lead. For a more detailed discussion of infectious diseases, see Ch. 51, below.

Compensation has, however, been awarded when a diseased co-worker coughed directly in claimant's face. McRae v. Unemployment Compensation Comm'n, 217 N.C. 769, 9 S.E.2d 595 (1940).

19. Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130, 341 N.E.2d 527, 532 (1975). Larson's Workers' Compensation Law cited.

20. City of New Castle v. Workmen's Comp. App. Bd. (Sallie), 118 Pa. Commw. 51, 546 A.2d 132 (1988). Larson's Workers' Compensation Law cited.

© Copyright 2009 by Matthew Bender & Co., Inc., a member of the LexisNexis Group. All rights reserved. This article was excerpted from Larson's Workers' Compensation Law.

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