Whether an injury or occupational disease and resulting sequela and/or death are compensable under the Kentucky Workers’ Compensation Act.
An injury or occupational disease resulting from work-related contraction of the coronavirus could be compensable. However, these cases must be looked at on a case-by-case basis with specific attention given to the work exposure versus other potential exposures.
The first issue is whether a diagnosis of coronavirus is an “injury,” an “occupational disease,” or neither under the Act. KRS 342.0011(1) defines “Injury” and “Occupational disease” as follows:
(1) “Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury;
(2) “Occupational disease” means a disease arising out of and in the course of the employment;
Because it can be difficult to relate causally an occupational disease to a specific date, the employee is required only to prove there was an exposure to the conditions that caused the disease during the course of employment. KRS 342.0011(3) states:
(3) An occupational disease as defined in this chapter shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause. The occupational disease shall be incidental to the character of the business and not independent of the relationship of the employer and employee. An occupational disease need not have been foreseen or expected but, after its contraction, it must appear to be related to a risk connected with the employment and to have flowed from that source as a rational consequence;
For a coronavirus case, the key difference between the classification of an injury versus an occupational disease is that an injury claim requires proof of when and where an injury occurs. The Kentucky Supreme Court also laid out a test for determining if a claimant has an occupational disease in Princess Mfg. Company v. Jarrell, 465 S.W.2d 45 (Ky. 1971). Under Princess, an occupational disease may be found if there is substantial evidence that either (1) employment conditions specifically affected the employee in a manner resulting in contraction of disease, or (2) employment conditions generally can, to a reasonable medical probability, cause a particular disease or condition in a given class of workers.
In Dealers Transport Co. v. Thompson, 593 S.W.2d (Ky. Ct. App. 1979), the Kentucky Court of Appeals addressed an estate’s claim for alleged work-related pneumonia. The claimant in Thompson worked in cold, damp, winter weather conditions on a loading dock; developed pneumonia; and later died. The Thompson court determined the estate did not meet the Princess test, but nevertheless held there was sufficient evidence from which it could be inferred that the conditions of the decedent’s employment caused, or at least contributed to, his pneumonia.
In Thompson, the claimant provided medical testimony of two doctors “from which it could be inferred that the conditions under which decedent worked could have lowered his resistance to pneumonia or could have caused a mild viral infection to become much more severe – even fatal…We are of the opinion that this evidence constitutes substantial evidence that a work-related injury occurred which produced, or substantially contributed to, decedent’s fatal pneumonia.”
Finally, in Barren River Dist. Health Dept. v. Hussey, 2000 Ky. App. LEXIS 39 (Ky. Ct. App. 2000), the Court of Appeals affirmed a ruling that AIDS was an occupational disease and agreed there was substantial evidence to support a finding the claimant was infected and died as a result of it. Specifically, the claimant - a nurse who worked with HIV and AIDS patients - “was obviously at a higher risk of contracting AIDS than was a member of the general public simply because she was handing bodily fluids of HIV patients.”
The coronavirus, like pneumonia and AIDS, is a communicable disease under KRS 342.0011(1) and it is compensable if “the probability of contracting the disease is greater for the worker because of his job situation than it is for him as a member of the general public.” Barren River, supra. As such, we believe the coronavirus can constitute an occupational disease under the Kentucky Workers’ Compensation Act.
When addressing this specific allegation, however, employers should be careful to review the circumstances surrounding the contraction of the virus on a case-by-case basis. For example, a healthcare worker who treats patients with coronavirus and later tests positive for coronavirus would seem to have a strong claim for compensability, but you would want to inquire about any potential contacts with coronavirus outside the workplace. You would also want to inquire as to relative precautions taken at work and elsewhere, as the healthcare worker presumably is exercising the utmost care to avoid contraction at the workplace, and may be less diligent outside the workplace.
Careful analysis is also important in the case of traveling employees; e.g., traveling salespeople, flight attendants, and home healthcare workers. These workers have the potential to be exposed multiple times and in a number of different places. It is well-established that “transitory activities of employees are covered [under the Act] if they are providing some service to the employer[.]” Receveur Const. Co/Realm, Inc. v. Rogers, 958 S.W.2d 18 (Ky. 1997). Thus, if the travel the employee engages in is for the benefit of the employer, an occupational exposure sustained in that capacity would also be compensable.
When dealing with traveling employees, it is important to know where they traveled to, any stops they made along the way, any interactions they had, and whether there are known outbreaks of coronavirus in any of these areas. It would probably be difficult for the employee to pinpoint where the harmful exposure occurred, though the employee would argue that the travel, in and of itself, creates an increased risk of exposure.
Where possible, we recommend limiting the travel of employees. Where that is not possible, we recommend advising employees to avoid large crowds and limit their exposure to other people while traveling for work.
When evaluating these claims, consider the following:
- What is the nature of the employee’s work? Healthcare workers and long-term care workers that treat patients with coronavirus would generally be considered at a higher risk of contracting coronavirus.
- Is there any proof, confirmed through laboratory testing or other provable scientific data, that the claimant was exposed to the virus in the workplace? Has a doctor opined that the virus is work-related?
- Have there been any reported cases of coronavirus in the claimant’s workplace?
- Has the employee traveled to any areas with known outbreaks outside of work?
- Has the employee been exposed to anyone with coronavirus outside of work, like a close family member?
There is no hard and fast rule for dealing with coronavirus cases in Kentucky. Generally, a coronavirus case can be compensable. Compensability should focus on the individual facts of the claim as outlined above, however. Further, we recommend obtaining a recorded interview with any claimant alleging work-related coronavirus exposure.
The long-term compensability issues of the coronavirus will continue to develop as we learn more about the virus. At this time, it is not widely known whether there are long term effects of coronavirus for people who survive it. It may be that claimants are able to make a claim for permanent benefits under the Act.
The next issue will be whether the insurer is required to pay for testing for a suspected case of work-related coronavirus. On March 9, 2020, Kentucky Governor Andy Beshear issued Executive Order 2020-220, which requires insurers to waive all cost-sharing, including copayments, coinsurance, and deductibles for screening for coronavirus. This includes all hospital, emergency department, urgent care, provider office visits, lab testing, telehealth, and any immunizations that may be made available. Governor Beshear’s Order does not create any liability for employers or insurers with respect to workers’ compensation, however, above and beyond that imposed by the Workers’ Compensation Act.