Whether an injury or occupational disease claim for coronavirus and resulting sequela and/or death are compensable under Ohio’s workers’ compensation statutes.
The compensability of coronavirus claims with its resulting sequela and/or death claims must be determined on a case-by-case basis. Under existing Ohio law, there is not a bright line test to say an alleged injury/occupational disease for coronavirus and its developing sequela and/or death is or is not compensable.
I. Injury Claims
In Ohio, an injury is defined as “any injury, whether caused by external accidental means or accidental in character and result, is received in the course of and arising out of the injured worker’s employment.” R.C. § 4123.01(C). The Supreme Court of Ohio in Phillips v. Ingersoll-Humphryes Division, Borg-Warner Corp., (1972), 32 Ohio St. 2d 266 addressed the issue of the compensability of a claim for a viral infection while working as a crane operator. The Supreme Court of Ohio in Phillips stated, a claimant seeking a claim must establish that his/her suffering proximately results from a compensable injury other than a disease. Importantly, the Court stated, “although it may be true that claimant worked under extremely cold conditions, it is certainly untenable to contend that contracting a virus is unusual and unexpected and, therefore, accidental.” Phillips at 270. The Court went on to note that a worker’s weakened resistance to infection from pneumonia, even though it may represent a derangement of his or her bodily functions, cannot be considered an injury within the meaning of the workers’ compensation statutes. Id.
In a more recent case, the Fourth District Court of Appeals dealt with the issue of a claimant’s infection from pneumococcal pneumonia. In Ingram v. Conrad, (4th App. Dist. No. 01CA36), 2001 Ohio App. LEXIS 6017, the Court relied upon the Phillips case noting that contracting a virus is neither unusual nor unexpected.
The Court of Appeals in Ingram noted that, under existing law, they could not find that a person’s immunocompromised state constituted a physical injury. Therefore, the injured worker’s request for injuries suffered as a result of contracting pneumococcal pneumonia were not compensable as an “injury.”
With respect to claims for “injuries” arising out of the coronavirus, the cases of Phillips and Ingram are helpful in evaluating what the Industrial Commission and interpreting courts would look at for purposes of compensability. It would be argued that the coronavirus, like the viral infection in Phillips and the pneumonia infection in Ingram, is neither unusual nor unexpected. Quite simply, with the amount of media and social media exposure to this virus, this is something that, if a person were to become infected, it would be expected. As such, for purposes of any claims of “injury” for exposure to coronavirus with its developing sequela and/or death would have to be considered non-compensable under the Phillips and Ingram cases. However, this is not the end of the analysis as one must also look at the compensability under the occupational disease statutes.
II. Occupational Disease Claims
An occupational disease is defined as “a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment and character from employment generally and the employment creates a risk of contracting the disease in a greater degree and in a different manner from the public in general.” R.C. § 4123.01(F). Because the coronavirus would not be considered a “scheduled occupational disease” under O.R.C. § 4123.68, it would be considered a “non-scheduled disease” under the line of cases of State ex rel. Ohio Bell Telephone Company v. Krise (1975), 422 Ohio St. 2d 247. Therefore, a “non-scheduled occupational disease” is proven by the following criteria: (1) the disease is contracted in the course of employment; (2) the disease is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation or the conditions of the employment result in the hazard which distinguishes the employment and character from employment generally; and (3) the employment creates a risk of contracting the disease in a degree and in a different manner than the public generally.”
In the Ingram case, the Court of Appeals not only addressed the compensability of the claimant’s claim under the “injury” standards, but also under the “occupational disease” standards. The Ingram court applied the three-prong test of Ohio Bell v. Krise and noted that, under the first prong to establish that the employee contracted the disease while in the course of employment, he or she must demonstrate an injurious exposure in the course of his or her employment. This must be proven by medical evidence. In the Ingram case, the claimant’s expert witness admitted it was not possible to pinpoint where a person might contract pneumonia. Thus, the claimant was unable to establish through expert medical testimony, that he contracted the pneumonia in the course of his employment. Additionally, the claimant was unable to prove that the pneumonia was peculiar to his employment or that the conditions of his employment resulted in a hazard that distinguishes his employment in character from employment generally. Lastly, the claimant failed to establish that his employment created a risk of contracting the disease in a greater degree and in a different manner than the public generally. The court noted that pneumonia is a common illness to which the general public is exposed.
The Ingram court went on to state, “we believe that to conclude that ordinary illnesses and colds constitute occupational diseases would extend the workers’ compensation laws beyond their intended purpose.” Citing a case from the Texas Court of Appeals, the Ingram court went on to state, “it is not contemplated by the law makers that the law should cover health insurance. It is a matter of rather common knowledge that colds, influenza, and pneumonia are the result of bacteria in common parlance, germs attacking the body. These germs appear and cause epidemics in cities, towns, and counties. It is also a matter of common knowledge that many such germs appear to be in the very atmosphere surrounding us, at all times. Any and every person is ‘exposed’ to them without being conscious of the fact. Medical science teaches that we fall victim of these germs because of the time of their attack, we are not physically able to withstand the results.” Ingram at *33.
What the Ohio Bell and Ingram cases teach us is that non-scheduled occupational diseases, in order to be compensable, must, through expert medical testimony, establish that the claimant contracted coronavirus in the course of his or her employment; that the coronavirus is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation or the conditions of the employment resulted in a hazard distinguishing the employment and character from employment generally; AND that the claimant’s employment created a risk of contracting the coronavirus in a greater degree and in a different manner than the public generally. A broad sweeping proclamation that coronavirus claims are or are not compensable is not a sound tactic. Rather, under the cases cited above, each claim for coronavirus as an occupational disease claim should be considered on a case-by-case basis. That is because the nature of the claimant’s actual job should be taken into consideration. Specifically, workers who are in the health industry would naturally come into contact with patients, if proven, that are affected by the coronavirus more readily and more frequently than other workers in the State of Ohio. However, it must also be taken into consideration that, just because a person is a healthcare worker, he/she does not automatically become entitled to an occupational disease claim for the coronavirus unless he/she can prove, through expert medical testimony, that he/she contracted the coronavirus in the course of his/her employment. Thus, there would have to be evidence of actual patients treated in that medical facility to give rise to a potential compensable occupational disease claim.
The timing of when the person contracted the coronavirus is also of importance. The strength of a claim early on in the spread of the virus would tend to be stronger than a claim where the virus has become widespread. God forbid if the virus does spread as some experts believe it could wherein it runs rampant through Ohio’s cities and towns, arguably it becomes much more difficult for a claimant to pinpoint where he/she contracted the disease. That is why the timing of the development of a person’s coronavirus symptoms is extremely important. Like the doctor in Ingram, where he was unable to pinpoint where the claimant was exposed to the pneumonia, the same could be said in coronavirus cases if the virus becomes a widespread epidemic or if you have a worker where there are no other incidents at his/her place of employment.
If you should receive any claims for coronavirus and its developing sequela and/or death, each claim should be considered on its own separate case-by-case basis. First and foremost, a coronavirus claim generally would not be considered a compensable “injury.” However, the analysis must shift to whether the coronavirus is a compensable “non-scheduled occupational disease.” From here, the focus should be on the nature of the person’s employment such that healthcare workers and persons in the long-term care industry. These people would generally have a greater likelihood of contracting coronavirus than other employees due to their close contact and treatment of patients actually infected. However, just because an unusual event follows closely on the heels of another unusual event, this does not infer a causal relationship because this is speculation. That is to say that just because a co-worker comes down with the virus does not mean that the employee would necessarily have a compensable claim. Rather, an analysis should be performed, and an expert medical opinion required from the claimant proving that he/she actually contracted coronavirus in the course of his or her employment. This is only the first part, though, of the necessary three-part test of compensability. The claimant MUST still prove the other two Ohio Bell factors.
In looking at whether the employee contracted coronavirus in the course of his or her employment, the timing of the alleged claim is also very important. In the early stages of the coronavirus, before it becomes an epidemic/pandemic, the causal relationship between being exposed to the coronavirus and contracting it would be much stronger. This is because the claimant may actually be able to prove exposure to the coronavirus in his/her workplace. However, if the coronavirus does become an epidemic/pandemic throughout the State of Ohio, then the causal relationship between exposure to the coronavirus and contracting it in the course of a person’s employment is much more tenuous.
Not only must the claimant prove by expert medical testimony that he/she contracted the coronavirus in the course of his or her employment, but that claimant must also prove the coronavirus is peculiar to his or her employment because the characteristics or the conditions of the employment result in a hazard that distinguishes it from employment generally and the claimant must also prove there was a risk of contracting coronavirus in a greater degree and in a manner different than the public generally. Arguably health care workers and persons in the long-term care industry who are actually treating persons with coronavirus would be exposed to conditions making their employment different from employment generally, and they would be exposed to conditions different than the general public. Conversely, it would be arguable that an employee working in a retail store or a logistics facility is not exposed in a manner different from employment generally nor in a manner different from the general public.
Therefore, if any coronavirus claims are filed here in Ohio, the following would be helpful in evaluating the compensability of said claims:
- The nature of the claimant’s job – healthcare workers and long-term care workers that actually treated coronavirus patients would generally be considered more likely to be contracting this virus than other workers;
- The timing of when the employee contracted coronavirus: early on versus whether the virus becomes an epidemic/pandemic across the entire State of Ohio;
- Whether there is actual proof of exposure to the virus in the workplace confirmed through laboratory testing or other provable scientific data;
- Information as to where the claimant resides and whether he/she resides in a particular area where there is a cluster of coronavirus cases;
- Information as to whether other members of the claimant’s family and/or friends have come down with the coronavirus, i.e. non-occupational exposure.
Again, the best practice for compensability on coronavirus cases is to not make a hard and fast rule about compensability. Rather, it is believed that a case-by-case assessment is the better approach based upon the facts and circumstances of each case. It is strongly urged that any alleged coronavirus claims should have a recorded interview of the claimant, so questions about how/where the exposure occurred can be taken down for future potential use. Should you have any additional questions or concerns, please do not hesitate to contact one of the Ohio Workers' Compensation attorneys here at Reminger.