See the published article here: https://www.trialnewsonline.org/trialnews/march_2021/MobilePagedReplica.action?pm=2&folio=2#pg2
Workers’ Compensation Today: Occupational Disease and COVID-19
It has been over a year since COVID-19 (coronavirus) made its appearance into our world. It has changed the way we live, interact, and work. While most businesses initially shut down, essential workers continued to remain at work. These consisted typically of health care workers, first responders, post office workers, and grocery store clerks. There has been concern about essential workers contracting coronavirus, but with Washington State reopening it is sparking a greater concern of exposure for all returning workers.
Workers’ compensation has been around for several years now. The Industrial Insurance Act (Act) dictates the benefits that a worker could potentially receive if injured while at work. Within the Act, it breaks up injuries into industrial injuries or occupational diseases. The Department of Labor and Industries (Department) considers coronavirus claims as an Occupational Disease within the IIA. Under RCW 51.08.140, Occupational Disease means “such disease or infection as arises naturally and proximately out of employment.” As simple as that definition may seem, it has been a statement that has been interpreted several times and argued over for years. To understand Occupational Disease now, we must first look back to how we got here.
HISTORY OF OCCUPATIONAL DISEASE
At one point in our history, there was no expectation that employers needed to care about and protect the well-being of their employees. Thankfully, throughout time, women have fought on the front lines of labor reform movements by fighting for better wages, equal rights, and safer working conditions. What lead to the creation of the Occupational Safety and Health Administration was entering World War I and a demand for new luminous watch faces.
Radium Girls
In 1916, a factory opened to produce watches with luminous faces, and they hired around 70 women to work in this factory.[1] The newly discovered element radium is what made these watches glow. At the time, radium was used in different cosmetics, waters, and to treat everything from colds to cancer.[2] U.S. Radium Corps hired these women to paint tiny numbers onto the watch faces for about 5 cents a watch. To get the numbers small enough, these women were taught to “lip point” where they would put the tip of the paint brush between their lips to sharpen it after each number.[3] Each time they did this, they were ingesting small amounts of radium. They were also inhaling radium while in the factories. Shimmering radioactive dust would fill the air when the paint was mixed, ending up on the women’s hair and clothes. Due to the shimmering properties, the women would wear the best dresses to work so that they would glow in the lightly lit speakeasies.[4]
Eventually, in the early 1920s, the women started developing symptoms like fatigue and toothaches.[5] Between 1922 and 1933, 22 of the employees died of radiation poisoning from the radium.[6] It was identified that radium is a slow killer. The element behaves like calcium in a human’s body and since the body uses calcium to make bone, radium gets mistaken for calcium and is incorporated into the bone, inducing bone necrosis and bone cancers.[7]
In 1925, Grace Fryer, one of the workers from the original New Jersey plant decided to sue.[8] Due to having trouble finding an attorney to help her, she finally filed her case in 1927 along with four other women. The case settled in 1928 in the women’s favor, becoming a milestone of occupational hazard law.[9] This is one of the earliest documented efforts to receive compensation for occupational disease.[10]
Washington State Industrial Insurance
Washington State enacted the Industrial Insurance Act in 1911. The Act “is based on a compromise between workers and employers, under which workers become entitled to speedy and sure relief, while employers are immunized from common law responsibility.”[11] At that time, there was statute/law covering occupational diseases.[12] Relief for occupational diseases could only be found in common law and provided very limited remedies.[13] The statute was amended in 1927 and a new definition of injury was placed into the statute as follows:
“A sudden and tangible happening of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical condition as results therefrom.”[14]
The first to test out this new definition were three women employed by the Seattle Can Company in 1924.[15] They were affected by what was referred to as benzol poisoning from their work.[16] The women worked in a room with a compound which contained a benzol and rubber solution which, by mechanical process, was deposited as a liquid around the edge of the tops of cans manufactured by the plant to form a rubber sealing compound when the benzol was evaporated from the solution through mechanical contrivances.[17] Evaporation of the benzol was done by using a dryer, heated by gas with natural ventilation, which caused the rising of hot air mixed with the benzol and this was intended to be carried off by the natural ventilation, but failed to do so.[18] Additional equipment was then added to the room which lessened the ventilation and in turn poisoned the women by excessive quantity of benzol accumulating.[19]
The Department rejected their claim on the grounds that it was an occupational disease and not an injury. It was eventually appealed to the Supreme Court who were to decide whether the cases involved injuries and fatality by accident.[20] The Judges wrote:
“As we understand it, an occupational disease is one which is due wholly to causes and conditions which are normal and constantly present and characteristic of the particular occupation; that is, those things which science and industry have not yet learned how to eliminate. Every worker in every plant of the same industry is alike constantly exposed to the danger of contracting a particular occupational disease.”[21]
It went on to find the women’s claims to be an injury because but for the plant turning off the ventilation, these women would not have suffered.
In 1941, the legislature amended to provide, for the first time, a definition of occupational disease which is almost the same as todays.[22] It provided that workers’ compensation was to cover “such diseases or infection as arises naturally and proximately out of extra-hazardous employment.”[23] Thus, the battle of definitions began.
BATTLE OF THE DEFINITIONS
The Department began seeing more claims under occupational disease, which meant more cases were being heard regarding what the legislature’s intent was regarding the definition.
Case Law
One of the first issues was defining what “proximately” meant. In Favor v. Department of Labor & Industries[24], the court concluded that a “but for” standard is to be applied when determining proximate cause. That is, but for the existence of ‘X’, would ‘Y’ have occurred? Soon after, in Department of Labor v. Kinville[25], the court limited this definition holding that the disease must “arise naturally and proximately out of the employment… can be construed as limited compensation to diseases that are inherent in a claimant’s particular occupation.”[26] They stated:
“In this regard, we do not believe the Legislature intended to limit compensation to situations where the claimant is able to demonstrate that his disease is unique to his particular type of employment. Instead, we believe the statute requires a showing by the claimant that the job requirements of his particular occupation exposed him to a greater risk of contracting the disease than would other types of employment or nonemployment life.”[27]
In 1987, the Supreme Court further defined “arising naturally” stating:
“We hold that a worker must establish that his or her occupational disease came about as a matter of course as a natural consequence or incident of distinctive conditions of his or her particular employment. The conditions need not be peculiar to, nor unique to, the workers particular employment. Moreover, the focus is upon conditions giving rise to the occupational disease, or the disease-based disability resulting from work-related aggravation of a nonwork-related disease, and not upon whether the disease itself is common to that particular employment. The worker, in attempting to satisfy the “naturally” requirement, must show that his or her particular work conditions more probably cause his or her disease or disease-based disability than conditions in everyday life or all employments in general; the disease or disease-based disability must be a natural incident of conditions of that worker’s particular employment. Finally, the conditions causing the disease or disease-based disability must be conditions of employment, that is, conditions of the worker’s particular occupation as opposed to conditions coincidentally occurring in his or her workplace.” (Emphasis added).[28]
The court noted that the statute contained no language requiring that there be an increased risk in the worker’s particular employment.[29] Jump to modern day and we now have the definition that occupational disease means “such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.”[30]
Some examples of occupational diseases that have been allowed over the years include Street v. Weyerhaeuser Company and Simpson Logging Company v. Department of Labor & Industries.
In Street v. Weyerhaeuser Company[31], an injured worker worked his entire career with the company in paper mills. He held various positions over 20 years. He had back problems prior to working in the paper mill, but they were not disabling until he was injured in 2011. More than a year later, he filed for workers’ compensation benefits due to the injury and the Department of Labor and Industries denied the claim, treating it as an injury claim. The Supreme Court of Washington found that the requirement of “arises naturally” does not need to be established by expert medical testimony and that there was substantial evidence supporting that the injured workers low back condition was an occupational disease.
In Simpson Logging Co. v. Dep’t of Labor & Indus.,[32] the injured worker began working with Simpson Logging Company in June of 1942 and only ever missed two days of work. In 1945, he took the job of off-bearer on the taper machine which was a lighter position. Dust, smoke, and fumes prevailed at the location of the taper machine in the plant. Eventually, he began sneezing, his throat became sore, and his eyes burned. He coughed considerably, and his condition got continuously worse. He was eventually diagnosed with asthma and his condition caused him to have to quit work entirely due to symptoms being so bad. The Supreme Court of Washington held that “no disease can be held not to be an occupational disease as a matter of law, where it has been proved that the conditions of the extrahazardous employment in which the claimant was employed naturally and proximately produced the disease, and that but for the exposure to such conditions the disease would not have been contracted.”[33]
And an example of an occupation disease that has not been allowed includes the case LaRose v. Department of Labor and Industries.[34] Ms. LaRose filed a workers’ compensation occupational disease claim for post-traumatic stress disorder and major depressive disorder which she stated were the result of the cumulative effect from repeated traumatic events at King County’s Public Defender’s Office. The Court of Appeals of Washington held the 2015 amendment of WAC 296-14-300(2)(d) excludes claims for a mental health condition or disability caused by stress from coverage as an occupational disease. The Supreme Court of Washington denied review.
COVID-19
So where does this leave Washington State attorneys when wanting to litigate claims under occupational disease for a worker being exposed to coronavirus at work? Well in true lawyerly fashion, it depends on the facts of each case.
A worker who has an allowable coronavirus occupational disease is entitled to receive benefits under the Act.[35] Because this is a two-part test, the worker must show 1) the medical condition arises naturally out of their employment and 2) that it was proximately caused by their employment conditions.
To show the worker’s medical condition arises naturally out of employment, they must show that their particular work conditions more probably than not caused their disease.[36] And the disease is proximately caused by employment conditions when “there [is] no intervening independent and sufficient cause for the disease, so that the disease would not have been contracted but for the condition existing in the … employment.” [37]
Therefore, someone who contracts coronavirus while at work must show, through medical testimony that their particular work conditions more probably caused them to contract the disease and that but for those particular work conditions, they would not have contracted the disease. The later will be the hardest to prove due to the widespread nature of this disease.
The courts liberally construe the Act in favor of the injured worker which will make it slightly easier. Some may say the injured worker would need to identify the person who was at their employment that passed along the coronavirus to them, but we have seen that due to the liberal interpretation of the Act they must only demonstrate that conditions in the workplace more probably than not caused their disease or disability.[38] Contact tracing could help eliminate this issue but with the reluctance of many to give information to allow the contact tracing, it will be hard to obtain accurate information.
Governor Jay Inslee and L&I
Governor Jay Inslee issued a statement on March 5, 2020 with Joel Sacks, Director of the Washington State Department of Labor & Industries, that the state was taking steps to ensure workers’ compensation protections were extended to health care workers and first responders on the front lines of the coronavirus outbreak.[39] The Department changed its policy so that health care workers and first responders would receive time loss benefits for time in quarantine after exposure. King County recently created a portal for health care workers and first responders to assist with obtaining and filing worker’s compensation claims.[40]
RCW 51.36.010(4) and WAC 296-20-03005, provide the Department the authority to authorize postexposure treatment when: 1) an injury includes a probable exposure to an infectious disease, or 2) a work-related activity results in probable exposure to an infectious disease, but with no injury.
The Department’s website states:
“The Industrial Insurance Act allows for treatment of COVID-19 when work-related activity has resulted in probable exposure to the virus and certain criteria are met. In these cases, the worker’s occupation must have a greater likelihood of contracting the disease because of the job (examples include first responders or health care workers). There must also be a documented or probable work-related exposure, and an employee/employer relationship.”[41]
The Department further states three criteria that must be met for an allowable claim. These three criteria are:
- “Was there an increased risk or greater likelihood of contracting the condition due to the worker’s occupation (such as a first responder or health care worker)?”
- “If not for their job, would the worker have been exposed to the virus or contracted the condition” and
- “Can the worker identify a specific source or event during the performance of his or her employment that resulted in exposure to the new coronavirus (examples include a first responder or health care worker who has actually treated a patient with the virus)?”[42]
However, the Department states it will not allow claims “[w]hen the contraction of COVID-19 is incidental to the workplace or common to all employment (such as an office worker who contracts the condition from a fellow employee).”[43]
The Department’s criteria mentioned above narrows the law that has been created through case law. As we saw in Dennis, the worker does not have to show there was an increased risk of contracting coronavirus, just their work conditions more probably caused them to be exposed.[44] And these work conditions do not need to be “peculiar to, nor unique to, the worker’s particular employment. Moreover, the focus is upon conditions giving rise to the occupational disease, or the disease-based disability resulting from work-related aggravation of a nonwork-related disease, and not upon whether the disease itself is common to that particular employment.”[45] Further, the injured worker would not need to identify the specific source or event that resulted in the exposure.[46] Finally, the hardest scenario to obtain benefits under IIA will be for employee’s who contract coronavirus from other employees. L&I has indicated on their website that they will not allow claims “[w]hen the contraction of COVID-19 is incidental to the workplace or common to all employment (such as an office worker who contracts the condition from a fellow employee).”[47] Unfortunately, this is comparable to Dennis which states that “the conditions causing the disease or disease-based disability must be conditions of employment, that is, conditions of the worker’s particular occupation as opposed to conditions coincidentally occurring in his or her workplace.”[48] Therefore, it may be hard for an injured worker to get a claim opened if they contracted it from a fellow co-worker.
Situations where coronavirus workers’ compensation claims should be allowed would include grocery store clerks who have a higher incidence of exposure to the coronavirus. If not for a clerk attending their job, it could be argued that they would not have contracted the virus. Typically, a clerk, or any grocery store employee for that matter, is not interacting much with other employee’s but instead is consistently interacting with the general public. And although they may not be able to identify the exact person who gave them the virus, interacting with the public is a condition of their employment and therefore the claim deserves to be allowed by the Department.
CONCLUSION
In Washington State, our Workers’ Compensation laws have evolved relatively recently and continue to evolve. Laws revolving around occupational disease are even newer and still need an overhaul. Attorneys who practice in the small world of workers’ compensation law are about to see new cases with coronavirus being the injury and causing a whole new set of cases to be heard. Although the Department has and will make it difficult for anyone other than first responders and health care workers to obtain benefits under the law, it will not be impossible and I believe it will bring around the overhaul that the definition of occupational disease is needing under the IIA so that it is not so narrow and difficult for injured workers to open claims and receive treatment and benefits under.
CITATIONS:
[1] Jacopo Prisco, Radium Girls: The dark times of luminous watches CNN (2017), https://www.cnn.com/style/article/radium-girls-radioactive-paint/index.html (last visited Feb 3, 2021).
[2] Rebecca Hersher, Mae Keane, One Of The Last ‘Radium Girls,’ Dies At 107 NPR (2014), https://www.npr.org/2014/12/28/373510029/saved-by-a-bad-taste-one-of-the-last-radium-girls-dies-at-107 (last visited Feb 3, 2021).
[3] Id.
[4] Jacopo Prisco, Radium Girls: The dark times of luminous watches CNN (2017), https://www.cnn.com/style/article/radium-girls-radioactive-paint/index.html (last visited Feb 3, 2021).
[5] Id.
[6] JurisMagazine, The Radium Girls: A Tale of Workplace Safety Juris Magazine (2019), https://sites.law.duq.edu/juris/2019/12/01/the-radium-girls-a-tale-of-workplace-safety/ (last visited Feb 3, 2021).
[7] Jacopo Prisco, Radium Girls: The dark times of luminous watches, CNN, Dec. 19, 2017, https://www.cnn.com/style/article/radium-girls-radioactive-paint/index.html
[8] Id.
[9] Id.
[10] La Porte v. United States Radium Corp., 13 F. Supp. 263, 264 (D.N.J. 1935)
[11] Nelson v. Dep’t. of Labor & Indus., 198 Wash. App. 101, 110 (Div. 2 2017) (quoting Flanigan v. Dep’t of Labor & Indus., 123 Wash.2d 418, 422, 869 P.2d 14 (1994)).
[12] Kevin Hollenbeck et al., A Study of Occupational Disease Claims within Washington’s Workers’ Compensation System (2013), https://research.upjohn.org/cgi/viewcontent.cgi?article=1031&context=up_technicalreports (last visited Feb 3, 2021).
[13] Id. at 27
[14] Id. at 28
[15] Id.
[16] Id.
[17] Seattle Can Co. v. Dep’t of Labor & Indus. of Washington, 147 Wash. 303, 305, 265 P. 739, 740 (1928)
[18] Id.
[19] Id.
[20] Kevin Hollenbeck et al., A Study of Occupational Disease Claims within Washington’s Workers’ Compensation System (2013), https://research.upjohn.org/cgi/viewcontent.cgi?article=1031&context=up_technicalreports (last visited Feb 3, 2021).
[21] Id. at 28
[22] Id. at 30
[23] Id. at 30
[24] 53 Wn.2nd 698; 336 P.2d 382; 1959 Wash. LEXIS 326.
[25] 5 Wn. App. 80; 664 P.2d 1311; 1983 Wash. App.
[26] Id.
[27] Id.
[28] Dennis v. Dep’t of Labor & Indus., 44 Wn. App. 423, 722 P.2d 1317 (1986) and 109 Wash.2d 467, 470, 745 P.2d 1295 (1987)
[29] Id.
[30] RCW 51.08.140
[31] 189 Wash. 2d 187, 190, 399 P.3d 1156, 1159 (2017)
[32] 32 Wash. 2d 472, 473, 202 P.2d 448, 449 (1949)
[33] Id.
[34] LaRose v. Dep’t of Labor & Indus., 11 Wash. App. 2d 862, 866, 456 P.3d 879, 882, review denied, 195 Wash. 2d 1025, 466 P.3d 779 (2020)
[35] RCW 51.32.180
[36] Dennis v. Dep’t of Labor & Indus., 109 Wash.2d 467, 481, 745 P.2d 1295 (1987).
[37] Simpson Logging Co. v. Dep’t of Labor & Indus., 32 Wash.2d 472, 479, 202 P.2d 448 (1949).
[38] Intalco Aluminum v. Dep’t of Labor & Indus., 66 Wash.App. 658, 833 P.2d 390 (1992) (The Division One court held that under the IIA, the injured worker was not required to identify the precise chemical in the workplace that caused her disease)
[39] Tim Church, Inslee announces workers’ compensation coverage to include Washington Governor Jay Inslee (2020), https://www.governor.wa.gov/news-media/inslee-announces-workers-compensation-coverage-include-quarantined-health-workersfirst (last visited Feb 3, 2021).
[40] Cal. Exec. Order No. N-62-20, 4 (2020)
[41] Washington State Department of Labor & Industries, Workers’ Compensation Coverage and Coronavirus (COVID-19) Common Questions, https://www.lni.wa.gov/agency/outreach/workers-compensation-coverage-and-coronavirus-covid-19-common-questions (last visited Feb 3, 2021).
[42] Id.
[43] Id.
[44] Dennis v. Dep’t of Labor & Indus. of State of Wash., 109 Wash. 2d 467, 483, 745 P.2d 1295, 1304 (1987)
[45] Id. at 1303
[46] Intalco Aluminum v. Dep’t of Labor & Indus., 66 Wash.App. 658, 833 P.2d 390 (1992) (The Division One court held that under the IIA, the injured worker was not required to identify the precise chemical in the workplace that caused her disease)
[47] Washington State Department of Labor & Industries, Workers’ Compensation Coverage and Coronavirus (COVID-19) Common Questions, https://www.lni.wa.gov/agency/outreach/workers-compensation-coverage-and-coronavirus-covid-19-common-questions (last visited Feb 3, 2021).
[48] Dennis v. Dep’t of Labor & Indus. of State of Wash., 109 Wash. 2d 467, 481, 745 P.2d 1295, 1303 (1987)
