Opinion Mondays: “Old” Case Law May Be Key to Many Coronavirus Claims
Over the past several weeks, as the coronavirus pandemic has raged across the United States, several state governors and a number of state legislatures have announced, and in a few jurisdictions, have actually put in place policies to assure workers’ compensation coverage for some workers on the front lines — mostly “first responders” and healthcare workers. What about others who also run significant risk of infection as they go about their duties in “essential businesses” — municipal bus drivers, cab drivers, grocery and pharmacy clerks, those who work in hardware stores, truck drivers, bank tellers, warehouse workers, and many others? Are they being abandoned by those in charge of state government?The short answer, of course, is “Yes.”
Might there still be maneuvering room for enterprising attorneys who seek to secure protection for these “forgotten warriors of the workplace?” While the road to recovery of benefits may be steep, practitioners might want to dust off some old case law. Consider, for example, a landmark decision from the highest appellate court in my home state, North Carolina, Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979). The reasoning employed by the Court may be helpful to a case near you.
Background
Beginning in October 1966, Booker worked at Duke University Medical Center (“Duke”) as a laboratory technician, performing various chemical determinations on serum blood, whole blood, and other body fluids. Although he was a careful and experienced employee, he routinely spilled blood upon his fingers (this was in the days before wide-spread use of protective gloves). Until July 1, 1971, just two days before Booker consulted a specialist in internal medicine for his symptoms, the blood samples in Booker’s lab bore no diagnostic label to indicate whether the patient’s blood was diseased. On July 3, 1971, Booker’s Duke physician determined that he was suffering from serum hepatitis and hospitalized Booker for ten days. Booker was subsequently treated by another Duke physician for serum hepatitis until his death on January 3, 1974. The autopsy showed that Booker died of a disease due to serum hepatitis.
Claims Filed with N.C. Industrial Commission
Prior to his death, Booker filed a claim with the Industrial Commission. The case was not resolved, however, before Booker’s death. Booker’s surviving dependents then filed claims for death benefits. Ultimately, Commissioner Stephenson conducted a hearing in September 1975.
Booker’s Survivors Faced a Catch-22
Booker’s survivors faced a Catch-22. According to their medical expert, the Duke specialist who had treated Booker for more than a year prior to Booker’s death, serum hepatitis could be transmitted by an accidental contact with an “almost microscopic” amount of contaminated blood. According to the expert, one could dilute the blood a million times and still transmit the illness. Moreover, the expert noted that it took only one exposure to contaminated blood to originate the disease. The doctor also testified that the incubation period for serum hepatitis was generally considered to be six weeks to six months.
The obvious beginning problem for Booker and his survivors: While Booker could point out many instances in which he had come into contact with blood, he could not specify which moment in time he became contaminated. It seemed, therefore, that under North Carolina’s workers’ compensation law, Booker could not establish an accidental injury arising out of and in the course of the employment.
What about attacking the issue from another angle? Could Booker’s survivors establish that Booker had contracted an occupational disease? Here, they faced a different problem: hepatitis — like the current coronavirus — is not a disease limited to persons who handle blood. At the time, an occupational disease was defined as one that was characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment [N.C. Gen. Stat. G.S. § 97-53(13), emphasis added]. Duke argued, therefore, that since hepatitis was found within the general public, Booker had not contracted an occupational disease.
Commissioner Stephenson’s Decision
In his findings, Commissioner Stephenson determined that at some time between December 1970 and May 1971, Booker contracted an infection of an internal organ of the body due to exposure to hepatic blood in his employment — the said disease being serum hepatitis. Stephenson held further that the disease “was characteristic” of the occupation of a laboratory worker such as Booker. The commissioner also found that the general public was “not as exposed to this disease” as was a laboratory technician. Upon these findings, Stephenson concluded that Booker contracted an occupational disease that resulted in his death, entitling his dependents to death benefits under the state’s Act.
Full Commission Affirmed, in Relevant Part
On appeal, with two significant alterations — only one of which is germane to our current coronavirus discussion — the full Commission adopted Commissioner Stephenson’s findings and conclusions as its own. It “clarified” the occupational disease question by concluding that Booker’s disease was a compensable occupational disease because it “was caused by conditions characteristic of and peculiar to his occupation of lab technician,” and was “one to which the general public [was] not equally exposed.” Duke appealed to the state’s court of appeals.
Court of Appeals Reverses
The court of appeals reversed [see Booker v. Duke Medical Center, 32 N.C. App. 185, 231 S.E.2d 187 (1977)], holding that the Commission had committed error in concluding that Booker’s disease was occupational. The court stressed that the characterization of the disease as “occupational” was not a finding of fact; rather it was a conclusion of law. The court added that in providing a list of covered diseases in N.C. Gen. Stat. § 97-53(13), the legislature intended to provide coverage only for diseases that would also come within well understood definitions of the term “occupational diseases.” Serum hepatitis, said the court, was not such an occupational disease. Serum hepatitis could be transmitted from person to person by one single event. Because there was no finding that the employee contracted it as a result of an accident, coverage was not provided by N.C. Gen. Stat. § 97-2(6).
Supreme Court Disagrees with Lower Court
The Supreme Court acknowledged Duke’s argument that serum hepatitis was not “peculiar to” the occupation of laboratory technicians since employees in other occupations and members of the general public could also contract the disease. Looking to decisions in other states, however, the Court stressed that a disease should be considered “characteristic” of a profession when there was a recognizable link between the nature of the job and an increased risk of contracting the disease in question.
Natural Incident of Occupation — Disease Need Not Be Unique to Employment
The Court continued that to come within the definition of “peculiar to the occupation,” an occupational disease must be a disease which was a natural incident of a particular occupation, and must attach to that occupation a hazard that distinguished it from the usual run of occupations and was in excess of that attending employment in general. The Court examined the law in other jurisdictions and noted that a number of courts had rejected the proposition that a particular illness could not qualify as an “occupational disease” merely because it was not unique to the injured employee’s profession
Quoting the Michigan Supreme Court in Mills v. Detroit Tuberculosis Sanitarium, 323 Mich. 200, 35 N.W. 2d 239 (1948) — a tuberculosis case — the Court said the North Carolina occupational disease statute did not place all ordinary diseases in a non-compensable class, but, rather those “to which the public [was] generally exposed outside of the employment.” Observing that in the Michigan case, the Court held the worker was exposed in his employment to the risk of contracting tuberculosis in a far greater degree and in a wholly different manner than is the public generally, the North Carolina high court said Booker’s scenario was quite similar.
Causation Proved with Circumstantial Evidence
Making a point that could be vitally important in coronavirus litigation, the Court stressed that in the case of occupational diseases, proof of a causal connection between the disease and the employee’s occupation must of necessity be based on circumstantial evidence. The Court indicated that a number of factors could be considering, including (but not limited to):
- The extent of exposure to the disease or disease-causing agents during employment;
- The extent of exposure outside employment; and
- The absence of the disease prior to the work-related exposure as shown by the employee’s medical history.
In Booker’s case, as to the first factor, he had handled blood products for four years, with evidence that it routinely spilled on his hands. There was no evidence that he had been in contact with anyone infected with hepatitis outside his employment and his medical history clearly indicated that he was free from the disease until the time he was diagnosed. The Court held that Booker’s dependents had established their right to compensation under the occupational disease statute, N.C. Gen. Stat. § 97-38. Citing Larson’s Workers’ Compensation Law, the Court held the Booker’s death occurred well within two years of his original disability, so there were no viable statute of limitations issues. The court of appeals was wrong; the Commission’s decision should be reinstated.
Commentary: Reminder That We Live on the “Animal Farm”
Obviously Booker isn’t precedent in any other state, but its logic could be utilized to support COVID-19 claims for workers who work on the “front lines” of the disease, but who are not employed in the favored categories of first responders and healthcare workers. For example, if the worker drives a city bus, that worker’s contact with the virus is substantially greater than the investment banker who is currently working from home. If the worker stands at a cash register for hours on end, handing food items and shopping carts that have been touched by potentially infected shoppers, his or her chances of catching the coronavirus seem to me — admittedly I’m no expert — to be exponentially greater than those faced by the business analyst who loads the latest version of a business spreadsheet on his or her company laptop at home. If the grocery clerk or bus driver contracts COVID-19, isn’t it just as likely that their disease came from their employment as the cop or nurse who comes down with COVID-19?
Perhaps you have seen reports of Jason Hargrove’s recent death due to the coronavirus. Hargrove wasn’t a “first responder.” Nor was he a healthcare worker. Instead, he was a 50-year-old, blue collar municipal bus driver in Detroit. His March 21 Facebook post ranting about a passenger who coughed four or five times — all of them unguarded — went viral (bad pun intended). Eleven days later, Hargrove succumbed to COVID-19. According to the report, more than 200 of Detroit’s bus drivers have tested positive for the virus.
A father of six, Hargrove, and countless others, whose jobs cannot be performed in the cocoon of relative safety of their homes, would not have been protected by the legislation and/or executive orders currently being cranked out by many state politicians who rush forward to waiting TV cameras to report that, from a workers’ compensation law standpoint, they’re doing “the right thing” in protecting those on the front lines of the COVID-19 fight. They’re not protecting many on the front line. There seems to be an inverse relationship between the size of a worker’s salary and the chances that one will be excluded from these special workers’ compensation protections. If your earnings are down at the bottom, if you drive a bus or a cab, or if you serve the public in a grocery store, in the language of my many New Jersey and New York friends, “Fuhgedaboutit.”
By now, we’re familiar with what I call the “Animal Farm” reaction by those in seats of government power: “All employees are equal; but some are more equal than others.” My hope and prayer is that all workers on the front lines — first responders, healthcare workers (including a daughter-in-law and mother to three of my seven grandchildren, who works as an ER nurse, and a son who is a primary care physician), bus drivers, bank tellers, cabbies, grocery and pharmacy clerks, the list goes on — will be treated equally. I’ve learned, however, that when it comes to politics, that isn’t likely to happen. One exception appears to be Louisiana’s S.B. 475, introduced March 31, which would appear to cover any worker, including those in private businesses, who are designated necessary or critical during the COVID-19 outbreak.
And so, in the absence of truly inclusive state legislation, in these times when government officials so quickly choose winners and losers, perhaps workers’ compensation practitioners will draw support from existing case decisions. These “old cases” may provide more support for claims than some, at first blush, thought possible.