May 4, 2009

  Swine Flu and Workers' Compensation: Compensable?
As swine flu cases are reported around the world, some authorities say a pandemic may be imminent. On Friday the Centers for Disease Control reported 50 confirmed cases in New York, 28 in Texas, and 16 in South Caroline. At least 16 other states had officially confirmed cases in their borders; amongst them is California where 13 cases have been identified.

As the numbers increase, claim forms alleging swine flu are probably inevitable.

Is swine flue "work related"? Can such a claim be denied?

What do you do? After all, an employee who is diagnosed with the disease may have been exposed at work, at home, their child's school, in public transportation, etc. The potential sources of exposure are limitless.

Generally speaking, California has no statutory presumptions of compensability for health care workers. The sole exception, Labor Code Section 3208.05, provides a presumption of injury for health care workers in cases of "preventative care." This presumption is triggered if a health care worker suffers an injury while undergoing care to prevent the development or manifestation of any blood-borne disease, illness, syndrome or condition recognized as occupationally incurred by Cal-OSHA, the Federal CDC or other appropriate governmental entities. This presumption specifically includes preventative care for, among other things, hepatitis and HIV. Arguably it would also apply to injuries that arise from preventative care for wide-spread contagions during an epidemic.

Aside from the foregoing, the standard rules of compensability apply. An infectious disease must be contracted in the course of employment to be compensable. The burden of proof rests on the employee. The rule for infectious diseases is somewhat narrower than the standard "zone of danger" for typical injuries. The fact that an employee contracts a disease while employed does not establish a causal connection. In other words, the mere fact that the injury occurred while the employee was in the employer's service is not sufficient. Pacific Employers v. IAC (1942) 19 Cal.2d 622. This narrower rule arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial or other pathological organisms. LaTourette v. WCAB (1998) 17 Cal.4th 644, 63 CCC 253. In the case of an epidemic or pandemic, health care workers will likely come in contact with infected patients, but could just as easily become infected outside of work. How does one determine compensability in times of epidemics or pandemics when the source of infection could be anywhere or everywhere?

Most applicant's attorneys will likely argue that in the absence of any other causes the disease must be work-related. While this argument improperly shifts the burden of proving a negative to the defendant, it was followed in City of Turlock v. WCAB (2007) 72 CCC 931, where the Court of Appeal held that there was substantial evidence to support a finding that the city's sewage worker's hepatitis C was work-related. There was physician's testimony that the worker likely contracted hepatitis C while working in sewers, although no specific source of the disease was pinpointed. The worker had no other non-industrial factors that would account for his infection. Because work put him at increased risk, the court ruled it was reasonably probable that the infection was work-related.

City of Turlock also highlights one of the exceptions to the general rule of noncompensability for infectious diseases. If the employment subjects the employee to an increased risk compared to that of the general public, the injury will be deemed compensable. The implication of this is, of course, when a health care worker is infected during an epidemic, the infection will likely be viewed as compensable. Despite this, there are ways to attack such an argument. For instance, a health care worker using stringent protocols to avoid infection at work as opposed to when out in public or at home would seem to create a presumption that the infection occurred somewhere else other than work.

Compensibility issue will likely be very factually driven. An injured worker needs to show increased risk of exposure due to the employment. Such a showing shifts the burden to the employer to show some source of non-industrial exposure. Whether the employment subjects the worker to an increased risk of infection would seem to be answered in favor of compensability for health care workers during an epidemic. But if there are no reported instances of lapses in proper protocol to avoid infection, even without evidence of non-industrial exposure, the defense of such a claim is strengthened.

Louis Larres, Esq. is a Partner and Managing Attorney of Bradford & Barthel's Fresno office.