We at Hall Ansley salute the brave and really heroic efforts of our Missouri healthcare workers helping to care for the sick during this coronavirus outbreak. Our healthcare workers are fighting to protect our lives and health while potentially exposing themselves to a deadly or at least life-changing virus.
Reports are surfacing that if the virus does not lead to death it could nevertheless result in some level of permanent lung damage.
At Hall Ansley, we would be happy to assist healthcare workers who believe that they may have contracted the virus in the scope and course of their employment.
Let’s take a look at how the Worker’s Compensation courts might process such a claim.
Missouri statute 287.020.3 (5) states that an “injury” shall not be construed to include “any contagious or infectious disease contracted during the course of the employment”. However, this portion of the statute simply relates to what the workers compensation statutes call a “traumatic injury”. This portion of the statute states that an “traumatic injury” is an “unexpected traumatic event identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift”.
So, there is certainly a question as to whether the Worker’s Compensation courts would cover a claim of a healthcare worker who contracts the coronavirus at work, at least as a “traumatic injury”.
However, a different portion of the Missouri Worker’s Compensation statutes, sections 287.067.6 and 287.067.7, suggest that a workers compensation court could in fact cover a healthcare worker who contracts the coronavirus in the scope of his or her employment as an “occupational disease”.
Specifically, section 287.067.6 would cover, under the proper evidentiary proof, a “disease of the lungs or respiratory tract” as an occupational disease.
Additionally, section 287.067.7 states that “any employee who was exposed to and contracts any contagious or communicable disease arising out of and in the course of his or her employment shall be eligible for benefits under this chapter as an occupational disease”.
So, our Missouri Worker’s Compensation statute would seem to potentially cover our healthcare workers, upon the presentation of proper evidentiary proof, if a healthcare worker contracts the coronavirus while on the job.
How might the court evaluate such proof? We are aware of no case which at this time has been decided on this specific issue by the Missouri Department of labor and industrial relations or the Missouri courts of appeal.
Nevertheless, in deciding such a claim, our Missouri courts will look to previous decisions dealing with infectious or communicable diseases for persuasive guidance.
The first hurdle that a healthcare worker would face in presenting such a claim is the requirement in Missouri Worker’s Compensation cases that the occupational disease can be compensable only if the occupational exposure “was the prevailing factor in causing both the resulting medical condition and disability”. The term “prevailing factor” is defined to be “the primary factor, in relation to any other factor, causing both the resulting medical condition and disability”.
In interpreting this “prevailing factor” requirement, we expect our Missouri courts to rely upon our state’s occupational medicine doctors to sort out whether a healthcare worker’s disease is primarily linked to their work exposure, as opposed to a community exposure. That decision could be made by examining the incubation period for the virus, believed by some to be up to 14 days, and then assessing the level of the workers exposure during that 14 days, both in the community and at work.
In 2017, the Missouri Court of Appeals for the Southern District, based here in Springfield Missouri, determined that a worker, and the worker’s dependents, were entitled to workers compensation benefits as a result of permanent lung damage caused by repeated and periodic occupational exposure to a disease known as “Mycobacterium avium complex”, derived from inhaling the fumes of aerosolized pigeon droppings on the roof of the employer’s premises being used as a breakroom. The court found that the employee experienced a greater risk of exposure to contracting this infectious disease during his employment with the employer than in his non-– work activities. In making this conclusion, the court relied upon competing opinions from internal medicine doctors, infectious disease physicians and board-certified occupational medicine doctors. In making its decision, the court relied on the finding that the employee’s infectious disease was not an “ordinary disease of life”. Rather, it was the type of disease deemed to be extremely rare and typically only seen in individuals with compromised immune systems.
Next, healthcare workers should consider occupational disease reporting requirements mandated by the Missouri Worker’s Compensation statutes. Essentially, the healthcare worker will have 30 days to report the claim to his or her employer. These reports must in most cases be made in writing to the employer or the employee’s supervisor. We at Hall Ansley have state sponsored forms for completing and filing these notice of injury reports.
The question of when the employee’s 30 day deadline begins to run can be a little complicated. This is because our Missouri courts have interpreted the time when an employee is deemed to be on notice that they may have contracted an occupational disease. Some courts have decided that it is not until the employee receives an official medical diagnosis of his or her disease that the 30 day reporting deadline begins to run. Other courts, more in the minority, have decided that the reporting deadline begins to run when the employee first begins to develop symptoms of the occupational disease and its link to their workplace exposure, even without a medical doctors opinion.
Please understand that this 30 day reporting deadline is jurisdictional for the Missouri Worker’s Compensation courts. If the injured healthcare worker does not meet the 30 day reporting deadline, the claim could be denied.
We at Hall Ansley are always here to answer any questions our state’s healthcare workers may have about potential workers compensation claims and help guide them along the way.
Stay safe and stay healthy!