Opinion Mondays: Old Influenza Case From Hawaii Shows How COVID-19 Presumptions Might Work

In recent weeks, as multiple states have established presumptions of compensability favoring some workers who contract the coronavirus/COVID-19, many within the workers’ compensation community have pondered just how these presumptions might work. In an earlier blog post, I briefly mentioned an “old” influenza case from Hawaii, Lawhead v. United Airlines, 59 Haw. 551, 584 P.2d 119, 125 (1978). I’ve located and dusted off my 32-year-old “Larson notes,” and I’ve reread the decision several times. I’ve come to the conclusion that in spite of important contextual differences, not to mention that only $26.35 in medical expenses was at risk, the Hawaii decision offers some important insights for both claimants’ and employers’ attorneys, as well as for those who will be adjusting the COVID-19 claims.

Background

Claimant, a resident of Hawaii, was one of 315 United Air Lines flight attendants based at the employer’s Honolulu headquarters. During June 15-17, 1973, appellee was a flight attendant aboard United’s Honolulu-Chicago-Honolulu flight, which went from Honolulu to Chicago, with a stopover in Chicago before the return trip to Honolulu. For stopovers in Chicago, United provided accommodations for its flight attendants at the Palmer House Hotel. Claimant’s fellow flight attendant during June 15-17 and, also, her roommate at the Palmer House was a Ms. Shirley Grigsby.

On June 15, claimant began the flight and was assigned to the galley section of the aircraft where the temperature was extremely low. To keep warm, she wore a sweater and opened the oven doors. For her stopover in Chicago, appellee stayed at the Palmer House during the night of June 16. Due to its defective heating and air-conditioning system, which lacked temperature and on-off controls, the Palmer House had very dry air in its rooms. Flight attendants usually placed wet towels over room radiators in order to increase the amount of moisture in the air to prevent sore throats and colds. Claimant did this herself on that occasion.

On June 17, claimant woke up with a dry and sore throat, later taking medication for her throat. After returning to Honolulu, she saw United’s physician who diagnosed her illness as influenza and prescribed medication for her. The charge for her office visits and medication amounted to $ 26.35.

The Workers’ Compensation Claim

Claimant thereafter filed a claim for workers’ compensation benefits that was approved by the Director of Labor and Industrial Relations. The Board affirmed, after a de novo hearing, and the employer and its carrier appealed. The employer sought reversal on two grounds. First, although not relevant to our discussion here, it contended the Hawaii Board had no jurisdiction since claimant had been hired in another state. Second, and germane to our discussion, it contended that no compensation could be awarded for a simple communicable disease such as the flu.

The Hawaii Presumption of Compensability

At the time of her claim, continuing to now, all employees covered by the Hawaii Workers’ Compensation Act enjoyed a general presumption of compensability [see Hawaii Rev. Stat. Ann. § 386-85]. As construed by Hawaii’s courts, the presumption imposes on the employer both the burden of going forward with the evidence and the burden of ultimate persuasion. In addition, under a line of cases decided by courts in the 50th state, all reasonable doubts must be resolved in favor of the claimant.

Employer’s Argument

The employer argued that since the particular method of transmission of influenza had not been medically verified in the instant case, influenza could not be an employment-related injury. The employer also argued that claimant had failed to show that she was exposed to an increased risk attributable to her work.

Supreme Court’s Reading of the Presumption

The Court stressed that the employer’s argument ignored the statutory presumption and was inconsistent with the principle that the humanitarian purpose of workers’ compensation requires that all reasonable doubts be resolved in the claimant’s favor. Specifically, the Court added, “In a case where the cause of the disease is uncertain, these factors are crucial” [59 Haw. at 560]. The Court said there was evidence that claimant suffered from an illness proximately caused by or resulting from the nature of her employment. Since the employer had failed to present substantial evidence to rebut the presumption that her claim was a covered work injury, claimant must prevail with her claim. The judgment of the Board was affirmed. In other words, the employer owed her $26.35.

Commentary

Initially, let me say that, because of the age of the Lawhead case, I haven’t been able to locate a PDF of the opinion that I can share. The decision is, of course, available through the reporter system maintained by the major legal publishers.

May I say that the Lawhead decision isn’t flawless in its analysis. For example, Justice Richardson, who wrote for the Court, indicated that Hawaii’s presumption of compensability was “consistent” with the federal courts’ interpretation of a similarly-worded presumption of compensability that was applicable in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) [see 33 U.S.C.S. § 920(a)]. Yet, Justice Richardson applied the Hawaiian presumption differently.

Under the LHWCA, once the claimant had made a prima facie case for compensability, the presumption applies to the claim. Unlike the Hawaiian presumption, however, the LHWCA presumption is only a burden of coming forward with contradictory evidence. The employer need not prove the injury or illness came about under its theory; it merely needs to show that it could have done so. Once the LHWCA employer offers substantial evidence countering the claim, the LHWCA presumption falls away and the burden moves back to the claimant to prove his or her case.

Burden of Coming Forward vs. Burden of Persuasion

In Hawaii, even where the employer comes forward with contradictory evidence, it may be said to have rebutted the presumption, but that isn’t the end of the story. It still has the burden of persuasion. The true effect of the Hawaiian presumption is to shift the burden of proof to the employer. So, in reality, the Hawaiian presumption is both “consistent” and inconsistent with the LHWCA presumption.

Although details concerning the recently enacted or recently “pronounced” COVID-19 presumptions are far from clear, it seems that the general intent is to utilize the Hawaiian-type of presumption and not that found in the LHWCA. That is to say, under these COVID-19 presumptions, it will not be enough for the employer to come forward with evidence that the COVID-19 disease was contracted outside the employment; the employer will probably need to show that it is more likely than not that the disease was extra-occupational.

Establishing “Extra-Occupational” Nature of COVID-19 Will Be Difficult

Adjusting the COVID-19 claims that seek to utilize the presumption of compensability will be difficult, but it will be an absolute key to an employer’s prevailing in the case. For example, if it can be determined that one of claimant’s family members contracted the virus before the claimant, that could go a long way toward supporting an expert’s statement that the origin of the claimant’s disease was outside the employment.

Recognizing the $26.35 Claims

One of the mysteries of Hawaii’s Lawhead decision is why the employer and/or carrier let it get that far. Less than $30 was at stake! In handling COVID-19 claims, many carriers are currently getting little credit for paying out claims even in states where there is no presumption of compensability. They are to be commended for doing that, although, in the current political climate, no one is holding his or her breath until such acclamation is given. Lawhead points out that carriers and self-insured employers will face practical issues in handling COVID-19 claims that cannot and should not be ignored. For small, “medical-only” cases, it will be cheaper to give in than to fight.

And so, to reiterate: while the legal effect of Lawhead is limited to the Aloha State, it offers a practical look at how the COVID-19 presumptions are likely to play themselves out. The presumptions likely will shift the burden of proof to the employer and in many cases, such a shift will make it difficult to defend. The theory behind workers’ compensation legislation is that the cost of the injury or illness should be borne by the industry (or, in this post-industrial world, the employment) within which it was produced. COVID-19 was not “produced” within any industry or employment, but under the present political climate, that is virtually irrelevant. Cost-shifting is common these days, both toward and away from the employer. I’ll mention more about that issue perhaps in a later post.