March 13, 2020
To our clients:
In light of the widespread concern regarding the Coronavirus, CFP Law Group would like to share some recommendations regarding the contraction of this disease in the workplace and its effect on future Workers’ Compensation claims.
According to Lussier v. Sadler Bros., Inc., a 1998 Reviewing Board decision, in order for an infectious or contagious disease to be compensable under the Massachusetts Workers’ Compensation statute, the hazard of contracting the disease must be “inherent in the employment.”
In Lussier, an employee who worked for the insured as a machine operator contracted tuberculosis from a co-worker. The employee filed a claim for benefits alleging her contraction of tuberculosis at work sufficed as a personal injury as defined by the statute and was thus entitled to benefits. The insurer was ordered to pay benefits but appealed that Order to the Reviewing Board. The Reviewing Board agreed with the insurer’s position and found that the employee’s contraction of tuberculosis was not an “essential characteristic of her employment as a machine operator.” This decision was in line with Zerofski’s Case, decided in 1982, which held that “to be compensable, the harm must arise . . . from an identifiable condition that is not common and necessary to all or a great many occupations.”
The Court in Lussier referenced multiple cases in which the contraction of an infectious disease would be compensable under the statute:
- In Mercier’s Case, the SJC held that “the nature of the employment of a nurse attending tubercular patients is such that the hazard of contracting the disease might well be found to be inherent in the employment.”
- In Hough v. Contributory Retirement Appeal Board, the SJC held that the nature of a nurse’s employment at a hospital treating cases of tuberculosis could be found to be a “hazard inherent to the employment.” Hazard was defined in this case as “a danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm.”
An additional Reviewing Board case decided in 2007, Langevin v. Air Liquide America, held that the hazard of contracting bacterial meningitis while working for a trucking company was not an “essential characteristic” of that employment, and therefore was not compensable.
Another Reviewing Board decision, Cheril Young’s Case, was affirmed by the Massachusetts Appeals Court in 2005. In Young, the employee was an emergency room technician who contracted hepatitis C at work and was awarded Workers’ Compensation benefits. The court relied on the impartial physician’s report which found the employee’s contraction of hepatitis C to be related to her emergency room exposure given that it was the only risk factor to which the employee was exposed. Moreover, the impartial physician specifically ruled out any other potential causes.
The takeaway from these cases is that the contraction of the Coronavirus in the workplace is generally not considered a compensable injury under the statute, unless the danger of contracting the virus is inherent to the employee’s occupation. The burden of proof remains with the employee to prove the causal relationship between the employment and the contraction of the virus. Based on these cases, it appears that hospital personnel who provide direct patient care to an infected individual and consequently contract the virus may be entitled to Workers’ Compensation benefits.
According to the Center for Disease Control and Prevention, the Coronavirus is transmitted “primarily via respiratory droplets produced when the infected person coughs or sneezes.” While the virus could be present in a hospital or other workplace setting, that is not the only location in which an employee could be exposed. Therefore, as previously stated, an employee seeking Workers’ Compensation benefits due to the contraction of the Coronavirus will have the burden of proving that the contraction of the virus is directly related to the employment and, as demonstrated in Young, will need to rule out any other potential causes. If contraction of the virus is deemed to be work related, the employee will need to be symptomatic and disabled from work for five or more days in order to receive weekly benefits.
Every potential claim and workplace situation is inherently unique, subject to its own specific facts and circumstances, which may affect potential compensability.
As of this date, employees who are ordered to undergo quarantine and are thus not able to work in their usual jobs are not considered disabled under the Workers’ Compensation statute.
If you have any additional questions or concerns, please do not hesitate to reach out to our office.
Mary Ann Calnan, Ann Marie Freeley & Shenan Pellegrini