If you contract CoVid-19 at work, are you covered under NC workers’ compensation?

Well, maybe you will be.   Infectious diseases can be covered as an “occupational disease” under North Carolina law, but the legal standard to prove that they are work-related is quite complicated and will make it difficult to get these claims covered.

The legal standard is set forth as the “catch-all” provision in our “occupational disease” statute, at N.C.G.S. 97-53(13).   That statute reads as follows:

Any disease, other than hearing loss…, which is proven to be due to causes and conditions which are 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. 

In order to get a CoVid-19 infection covered, the worker would have to prove that (1) the illness came from an exposure at the workplace, and (2) the particular conditions and of her job put her at an “increased risk” of getting the disease, as compared to a person in the general public, who does not have her job.

In all workers’ compensation cases in NC, the first part of that question, whether the illness or injury was caused by the work, must be answered using expert medical opinion testimony.   In other words, a qualified expert–typically a medical doctor– must be willing to testify that “it is more likely than not that Ms. P got this illness at work, rather than outside of her work.”   That opinion has to be expressed “to a reasonable degree of medical certainty” which is not 100% certainty, but it certainly reflects a medical probability that exceeds 50-50.    It is often difficult for a doctor to answer these causation questions to “a reasonable degree of medical certainty,”  due to the myriad of causative factors for many conditions and illnesses.

For CoVid-19, as for many illnesss that one wants to shoehorn into G.S. 97-53(13), the second prong of the standard is even more difficult, and probably the portion of the standard where a sick worker is most likely to fail.  The doctor that has given the causation opinion then has to offer the expert opinion that “To a reasonable degree of medical certainty, Ms. P’s job as a (fill in the blank) more likely than not, exposed her to a greater risk of contracting this illness than the general public not so employed.”     Now, there are a few jobs where this standard should be met without much controversy.  A nurse, pharmacist, doctor, or other health care professional who has been dealing with patients infected with CoVid-19 would likely be in a job where her likelihood of being exposed is greater than that of the general public who is not so employed.  But what about a worker in a real estate office?  That person is not taking care of sick patients.  She is simply meeting and greeting members of the public.   I don’t think that job is likely to fit the “greater risk” rubric.

I have handled two infectious disease cases over the years that illustrated the difficulties.   A few years ago I represented a veterinary tech who developed Lyme disease, and she believed that she had gotten bitten by the disease vector, a deer tick, at the vet office.   But, she did not save a deer tick that had bitten her.   It could not be tested.  And, she had gone on a picnic in a park with her kids around the same time she thought she was exposed at work.   We did not win the case, because she simply could not prove that she had been infected at work.

In another case, I represented a CNA who worked with elderly patients in a nursing home.   My client developed a MRSA infection on her torso after she had bathed an elderly lady who was known in the unit to have MRSA.   My client’s treating doctor opined that “yes, she could have gotten MRSA from bathing that lady, but MRSA is prevalent in the community, and she could have gotten it at the drug store, the grocery store, the bus stop or the gym.”   As a result, he was unwilling to say that she “more likely than not” got the MRSA at work.   Again, this client did not have the name of the lady who was known to have MRSA, nor any other information proving that she did in fact have it when my client gave her the bath.

In a nutshell, here is the bottom line:  These claims will probably be difficult to win in North Carolina.  If your job duties bring you into contact with people either known to have, or likely to have, CoVid-19, then make some notes for yourself.   Mark down the date and time you were in contact with them.  Write down their name and contact info if you can, so that you can get back in touch with them months later if you need to, in order to prove you had contact at work with an infected person.  For medical professionals, the use of this information raises confidentiality issues, but write down the info for yourself, now, and we will worry about the HIPAA and confidentiality issues later, if needed.  I don’t think you are violating any rules by keeping these personal notes for yourself.

If you do get CoVid-19, and you think you got it at work, don’t hesitate to call me to discuss the situation.   As you can see, I have already been thinking about how to address these issues.  But more importantly, stay safe.  Maintain social distancing and wear your PPE.   I would much rather you stay healthy, than become a new case for me!

Bob Bollinger

Board Certified Specialist in Workers’ Compensation Law