The onset of the Coronavirus (“COVID-19”) has created in recent weeks, and will continue to create in the weeks and months to come, a great deal of alarm and concern in the Missouri workers’ compensation community, many of these concerns involve the issue of compensability.
However, in addressing the legal issues which COVID-19 raises, a caveat is in order as these challenges are almost unprecedented. Analyzing the current workers’ compensation law in this context of COVID-19, cannot always produce clear-cut answers. Nonetheless, the existing law must control, and does allow for a great deal of legal guidance.
As we know, there are two general grounds for compensability under Missouri law. The first, the occurrence of an accident, the second is the occurrence of, that is the contracting of, an “occupational disease,” whether by repeated traumatic exposure or a prolonged exposure to toxic chemicals or biological agents.
Can the Transmittal of COVID-19 Be an Accidental Event?
Section 287.020.2, RSMO states: “The word accident . . . shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.” A sudden exposure to some caustic substance, toxic fumes, or other physical insults which do not constitute the more common fall, contusion, laceration, or strain can nevertheless constitute an accident under the law. Although exposure to COVID-19, or some other contagious disease, is most often a singular event, it is extremely difficult in such situations to identify the time, place and degree of that exposure. These then are circumstances where the claimant must look, for a remedy, to the occupational disease law.
COVID-19 – An Occupational Disease?
Section 287.067.1 RSM states: “In this chapter the term ‘occupational disease’ … is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employee shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section.”
Moreover, for an occupational disease to be compensable, occupation exposure must be shown to be the “prevailing factor” causing both the resulting medical condition and disability. However, Section 287.067.7 adds: “Any employee who is exposed to and contracts any contagious or communicable disease arising out and in the course of his or her employment shall be eligible for benefits under this chapter as an occupational disease.” Although COVID-19 is certainly an “ordinary disease of life to which the general public is exposed outside of the employment”, that exception alone does not protect the employer from liability where the employment has increased the risk of the disease beyond the risk which the employee encounters in non-employment life.
Whether a case is being pursued on an accident or occupational disease theory, the overall requirement that the accidental injury or the disease “…does not come from a hazard or a risk unrelated to the employment to which workers would have equally exposed outside of and related to the employment in normal non-employment life” cannot be too strongly emphasized.
Pertinent Case Law:
COVID-19 is clearly a communicable or contagious disease. A sampling of the case decisions which have dealt with communicable or contagious diseases follow.
· Hepatitis C (HCV) where the employee was a longtime hospital lab worker. Smith v. Capital Region Med. Ctr., 419 S.W.3d 252, (Mo.App.2013).
· Clostridioides difficile (C-diff) where the employee worked at the Missouri Veterans’ Home. Vickers v. MO Dept. of Public Health, 283 S.W.3d 287, (Mo. App. 2009).
· TB where the employee was a nutritional care specialist with a known TB exposure. Cunningham v. Research Medical Center, 108 S.W.3d 177 (Mo. App. 2003).
· Cryptococcus where the employee was repeatedly exposed to pigeon droppings on a roof. Lankford v. Newton County, 517 S.W.3d 577 (Mo. App. 2017).
These cases can be distinguished from cases involving exposure to toxins, not biological agents, such as:
· NonHodgkin’s lymphoma where the employee was a firefighter exposed to mixed smoke and likely to a myriad of carcinogens. Cheney v. City of Gladstone, 576 S.W.3d 308 (Mo. App. 2019).
· Multiple myeloma where the employee was exposed benzene and other known carcinogens. Moreland v. Eagle Picher Techs, LLC, 362 S.W.3d 491 (Mo. App. 2012).
· Any case involving mesothelioma, asbestosis, silicosis, or other toxin.
The common thread in all of the above cited cases is the necessity to establish that the disease in question was either directly caused by the employment (Cunningham) or the employment subjected the employee to a hazard greater than which the employee would have been subjected in non-employment life (Smith).
COVID-19 is not, however, a disease unique to any employment, except to the extent that a given employment has a risk of exposing an employee to an increased hazard, simply because they are much more likely to encounter those who may have, and indeed do have, COVID-19. Thus it would seem that health care workers and first responders could be easily found to have a greater risk or hazard of exposure to COVID-19 at work than their exposure in non-employment life. However, such individuals also generally take precautions to limit, or rule out, exposure, which may actually reduce their risk of the disease than if they off duty and were going to the grocery store, a department store, a sporting event, really any circumstances where “social distancing” is not an option or is ineffective.
Is COVID-19 different than the common flu virus, a highly contagious and often deadly disease which strikes millions of Americans annually and kills thousands? Should industry have to bear the burden of having to compensate every employee that contracted the flu? The uniqueness of COVID-19 is mostly related to its newness, its status as a pandemic, an extreme amount of publicity, and its unpredictability. But from a legal standpoint, for COVID-19 to be compensable, the greater risk or hazard requirement is the indispensable element which will seldom be present, barring special employment circumstances.
Copyright: Evans & Dixon. L.L.C. 2020