With the exception of medical professionals, we recommend that any Coronavirus related claims be denied. K.S.A. 44-5a01(b) defines occupational disease as follows:
"Occupational disease" shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. "Nature of the employment" shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases, ….
The key terms are “nature of the employment”, “special risk”, and “ordinary diseases of life. As a general rule, virus related illnesses would not be viewed as compensable due to consideration as an ordinary disease of life and condition to which the general public is or may be exposed to outside of the particular employment. However, “nature of employment”, i.e. medical professionals, can create a particular and peculiar hazard of disease in excess of the hazard of such disease in general. No published Kansas Court of Appeals or Supreme Court virus related occupational disease cases were found; however, the Appeals Board for the Division of Workers’ Compensation has found compensability in a limited number of claims involving medical professionals.
In Amilio L. Rojas v. ADIA/Nursefinders of Wichita, an Appeals Board for the Division of Workers’ Compensation decision, claimant, a nurse's aide for respondent, worked with patients suffering from contagious shingles. Shingles stems from the same virus which causes chicken pox. Claimant's first known exposure appeared to occur on approximately March 20, 1993 with a second known exposure period alleged on April 17 or 18, 1993. Claimant became symptomatic with chicken pox on April 20, 1993. It was claimant's contention that these exposures to shingles lead to his contracting of chicken pox which resulted in significant scarring on his face.
The Appeals Board found that the nature of claimant's employment did involve a particular and peculiar hazard the general public would not normally be exposed to or have personal contact with patients with shingles as a part of their employment. In so finding, the Appeals Board held claimant did contract an occupational disease stemming from a special risk of such disease connected with claimant's employment and was therefore entitled to compensation.
In Susan D. Holcomb v. Olathe Medical Services, Inc., another Appeals Board for the Division of Workers’ Compensation decision, claimant had been employed by respondent as a nurse practitioner since August of 2000. While working at one of respondent's facilities in April 2006, claimant was exposed to a patient that was diagnosed with the mumps virus. A few days after this exposure, claimant herself came down with the virus. Following her exposure to the mumps virus, claimant rather quickly lost her hearing and thereafter began to experience face pain (trigeminal neuralgia), vertigo and tinnitus. The claim was found to be compensable and benefits awarded.
Early claims involving business travel to hotspots and claims involving medical professionals having a greater incidence of exposure based on the nature of their role as a provider to coronavirus patients have a greater likelihood of being found compensable. However, with the increased reporting of community spread, the argument of special risk stemming from the nature of employment becomes diluted. Now reported as a pandemic with increasing odds of exposure, coronavirus should probably be argued to be an ordinary disease of life and any associated claims denied placing the burden of proof on the claimant to establish a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general.
To summarize, our position in Kansas is as follows:
- Virus related illnesses are generally not compensable as workers’ compensation claims;
- We would therefore recommend that any claims made be denied;
- We need to keep in mind that the coronavirus is creating a novel and fluid situation.
While we stand by our position, we can foresee scenarios where the virus could create potential liability. Therefore, please feel free to reach out with specific scenarios and we will continue to update you.