THE LAY OF THE LAND
Title 85A. Administrative Workers’ Compensation System
§85A-65. Occupational Disease
If an employee suffers from an occupational disease as defined in this section and is disabled or dies as a result of the disease, the employee, or in case of death, his or her dependents, shall be entitled to compensation as if the disability or death were caused by injury arising out of work activities within the scope of employment, except as otherwise provided in this section….
Descriptions and Definitions Applicable to COVID:
- “Occupational disease,” as used in this act, unless the context otherwise requires, means “any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee or naturally follows or unavoidably results from an injury as that term is defined in this act. A causal connection between the occupation or employment and the occupational disease shall be established by a preponderance of the evidence.”
- No compensation shall be payable for any contagious or infectious disease unless contracted in the course and scope of employment in or immediately connected with a hospital or sanatorium in which persons suffering from that disease are cared for or treated.
- No compensation shall be payable for any ordinary disease of life to which the general public is exposed.
WHAT IS “THE GRAND BARGAIN” OF OKLAHOMA WORKERS’ COMPENSATION?
Workers’ compensation is a philosophy of insurance which provides compensation for disability, medical and rehabilitation benefits for employees injured on the job. In the case of accidental death of an employee, it includes benefits to the employee’s dependents. Under workers’ compensation, both workers and employers are protected. Each covered worker has a right to benefits for a compensable injury. In return, employers are protected from liability lawsuits outside the workers’ compensation system. This is known in Oklahoma as “The Grand Bargain.” The employee is covered and the employer is protected from a jury trial on the issues of negligence, damages flowing therefrom, and punitive damages for particularly egregious behavior – to some extent.
WHAT IS AN “OCCUPATIONAL DISEASE?”
An occupational disease is one that is due to causes and conditions characteristic of and peculiar to a particular type of employment and not the ordinary diseases to which the general public is exposed. Additionally, an occupational disease must result from the nature of the employment – that is, it must be an unavoidable risk of the type of work itself. Oklahoma’s definition includes “any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee or naturally follows or unavoidably results from an injury as that term is defined in this act.” There is the exception which we will discuss further.
Types of Well-Established Occupational Diseases:
- Asbestosis: work around friable asbestos and asbestos-laden objects causing lung disease;
- Silicosis: work around hard metal dust entering lungs causing lung disease;
- Poisonings from work-related activities.
- Pennsylvania lists every single disease covered by its workers’ compensation system. If disease is not listed and not able to be spun in the “catch all” provision at the end of the text, it is not covered. This approach requires far too much work by listing innocuous, insipid, and esoteric disease forms only to follow up with a “trash can” of generalities at the close of the statute. This is not practical.
Although workers’ compensation law draws a distinction between ordinary diseases of life and occupational diseases, the distinction is often difficult. In most states, an ordinary disease of life may be an occupational disease where that disease was caused by a particular employee’s occupation. For example, while lung cancer is an “ordinary disease of life,” if the claimant can prove that asbestosis caused his lung cancer, then he would be covered by workers’ compensation benefits.
We must focus on “ordinary disease of life” or ODL. Most states have an exception to the compensability rule of “any” disabling disease proven to have been contracted at work. Oklahoma does not define this term; therefore, we must attempt to gain an understanding from other states or from treatises regarding workers’ compensation relied upon by practitioners. At least two states have defined “ODL” in case law to mean “a disease to which the general public is exposed outside of employment.” In this vein, occupational asthma is the most common occupational respiratory disease in the United States. However, asthma itself is also a disease very common to the general public. That said, there MUST be a connection to the work being performed and the injury sought to be found compensable. If it were proven by a preponderance of the evidence that asthma was caused by asbestos or working in a grain elevator (a common ailment of the public, yet connected to work), then it would also be covered.
The early cases arguing for compensability related largely to pneumonia and tuberculosis. The jurisprudence determined that, unless you could prove you were taking care of a TB patient as part of your duties as a nurse in a TB colony, your malady would not be covered under workers’ compensation absent some particular facts. As we will see, each case will be fact specific to determine whether COVID claims are compensable claims as follows:
If an occupational illness is established, is it an “injury?” Oklahoma defines “compensable injury” as damage or harm to the physical structure of the body or prosthetic appliances, including eyeglasses, contact lenses or hearing aids, caused solely as the result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment. This is yet another possibility for elaboration and argument between claimants and respondents. The COVID-19 “injury” must be one that causes damages or harms the physical structure.
For the purpose of establishing causation for ANY work-related injury in Oklahoma, a successful claimant must establish that the injury or disease arose out of and in the course of his employment by showing a causal relationship between the injury and the conditions under which the work was performed. The purpose of special standards of causation for occupational disease cases is to ensure that the disability causing the disease is one related to employment – and not one which is part of the ordinary hazards of life to which the general public is exposed or “ordinary diseases of life” (“ODL”).
- Arising Out Of: refers to the activities and work being done. The question asks if the employee’s job exposes the employee to an increased risk of harm over a general member of the public. If so, then being employed in a particular job is causally linked to a particular kind of injury. The employee must show by a preponderance of the evidence that they were negatively affected by: (i) the nature of the work performed at the time of the injury, which may be established by lay testimony, and (ii) a nexus between the work activity and the harm for which compensation is sought, which must be established by expert medical opinion.
- In the Course Of: refers to the time and place of the work being done. The employee needs to show that the injury happened: (i) during the time he or she was working, (ii) at a location related to work activities, and (iii) while the employee was executing duties on behalf of or for the benefit of the employer or doing something related to those duties.
When a practitioner is rendering an opinion as to compensability of an occupational disease, he must first establish the type of injury and then the type of disease contracted by the employee. Once these are established, the practitioner applies the malady to the statutes and makes an evaluation of potential risk exposure to a carrier for covering or not covering the condition. In the case of COVID-19, we are consistently routed to the “ODL” provision of the statute mentioned above.
Oklahoma’s workers’ compensation statutes simply do not cover employees who contract the common cold which is clearly an ODL. Even if a claimant could establish a clear nexus between the work they were doing and the symptoms they were having, there would not be any cause for concern if a carrier denied a request for coverage. The common cold is an ODL; and while it affects the physical structures of the body, it almost never results in any “permanent” damage for which permanent disability benefits would apply. Additionally, it would likely not cause such acute symptoms as to restrict an employee from being gainfully employed.
No definitive case law has developed since Oklahoma’s workers’ compensation scheme was established in 1915. Yearly flu events, other than the 1918 Flu Pandemic (H1N1), have almost always been treated as ODLs and thus have not been covered by the majority of carriers. Failing to establish causation with the two general requirements above and arguing the yearly flu is an ODL usually stop any claims. In fact, defense counsel have become so adept at avoiding such claims in the last 20 years that I have not seen one claim for the yearly flu in Oklahoma.
The “flu” is a virus regardless of what form it takes. Consequently, it is communicable like the common cold, but it also affects the physical structures of the body. The symptoms and effect upon the employee are usually more severe including prolonged fevers, dizziness, joint pain, etc., and the usual time off work is about a week. Yet, the flu rarely results in permanent disability awards and generally would not be covered. Therefore, it is also named an ODL.
As soon as COVID-19 began spreading across the U.S., attorneys began scheming as to how this malady should be treated by workers’ compensation. For defense attorneys, it was easy to point to the statutes in their respective states and dismiss the coronavirus as an ODL, but they will never establish causation.” However, this is only half of the puzzle. Claimant attorneys knew this argument was coming and that they must be able to distinguish this viral flu from all the others. Early on the following list began:
- COVID is a worldwide pandemic that has shut down over half of United States’ business entities. The yearly flu does not do this.
- COVID has a longer incubation period. In medicine, “incubation period” means the time from the moment of exposure to an infectious agent until signs and symptoms of the disease appear. For example, the incubation period of chickenpox is up to two weeks compared with the yearly flu’s three days. The mean incubation period of COVID is 5.1 days.
- COVID affects potentially more people based upon the longer incubation period; and therefore, it is far different from the “ordinary diseases of life.”
- As of April 18, 2020, the overall hospitalization rate for COVID-19 in the U.S. is about 29 hospitalizations per 100,000 people although the rate for adults ages 65 and older is higher at 95 hospitalizations per 100,000 people according to the CDC. However, because fewer people have likely contracted COVID-19 in the U.S. than have gotten the flu, the odds of becoming hospitalized if you have a confirmed case of COVID-19 are thought to be higher than the odds of being hospitalized with influenza.
- COVID has no current vaccine.
- The death rate of COVID is believed to be much higher than the 0.1% death rate of the yearly flu. However, the numbers vary from 0.5% to 0.9%. This is a problem.
- Of the people infected with COVID, 25-50% will not know they are infected.
During the current flu season, the Centers for Disease Control and Prevention (CDC) estimates there have been 39-56 million flu illnesses and 24,000-62,000 flu deaths in the U.S. However, these estimates are based on hospitalizations with flu symptoms – not on the number of people who have died from the flu. As of April 29, 2020, COVID-19 has caused more than 1 million illnesses and 60,000 deaths in the U.S. according to data from Johns Hopkins University. Based upon these numbers alone, the typical yearly flu appears to affect more people in the U.S. than COVID-19.
Every year a virus vaccine is developed for the types of flu anticipated. Coronavirus is considered a “novel” virus; however, if the recipe for our yearly flu virus changes, doesn’t it follow that each year we are faced with a “novel” virus? That argument has been made down in the trenches of late, but not in case law. There will be matters of practicality we must address regardless of what side of the fence one falls. If an employee files a COVID claim, the employer must:
- Immediately report it to your insurance carrier.
- File your Employers’ First Report of Injury if the employee/claimant loses time from work because of a COVID claim.
- File your Employers’ First Report of Injury if the employee seeks work outside of the jobsite.
- Begin to reassess your procedures for social distancing, personal protective equipment, wellness checks, etc.
In closing, if COVID-19 is found to be compensable by workers’ comp, this could be the slipperiest slope we have seen in the last 100 years.