In order to seek workers compensation benefits in Wisconsin, an employee must experience an injury or disease occurring either “in the course of” the employment or “arising out of” the employment. In theory, that means it would be possible to contract the novel coronavirus and seek benefits as a compensable Wisconsin occupational disease.
For employees who are self-quarantining as a precaution, there is no injury or disease causing lost time. An employee must sustain an injury, or physical or mental harm caused by an accident or disease, to be entitled to workers’ compensation benefits under Wisconsin law. A sickness or flu may entitle an employee to sick pay benefits, but no injury or disease arose or was caused in the course of employment when an employee decides not to come into work for a sickness such as the flu. This means self-quarantining employees without a supported diagnosis are not entitled to workers compensation benefits.
In Wisconsin, if a claimant is pursuing a compensable disease like coronavirus, a causation test applies looking to whether work exposure was either “the sole cause of the condition” or “at least a material contributory causative factor in the condition’s onset or progression.” Shelby Mut. Ins. Co. v. Dep't of Indus., Labor & Human Relations of State, 109 Wis. 2d 655, 659–60, (Ct. App. 1982). Even one day of exposure can lead to an occupational disease claim. Guimeny v. Cty. Concrete Corp. & Zurich American Ins., Claim No. 2004-017501, (July 11, 2006). The courts have found these tests to be satisfied even where work only furthers the disease progress by a measure of 5%. Thus, these tests are easy to satisfy.
However, there are major causation issues regarding exposure. It would be very difficult to show where the worker was exposed, absent circumstance such as working in healthcare caring for infected patients. In order to support a claim, a claimant needs medical support linking exposure to the workplace. With coronavirus, at this point, there is not enough known about the incubation period for a credible medical opinion to be provided. As the Court explained in Pfister & Vogel L. Co. v. Industrial Commission, “[i]t is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed and concerning which witnesses can acquire positive knowledge. Under such circumstances the commission or the court can base its findings upon a preponderance of probabilities or of the inference that may be drawn from established facts." Pfister & Vogel L. Co. v. Industrial Commission, 194 Wis. 131, 133-134 (1927). “Preponderance of probabilities” meant that in a given situation the inferences are strong enough to point to a fact as a probability and not as a speculative possibility. Cheryl Gabriel, Applicant, No. 2005-010687, 2008 WL 412258, at *3 (Wis. Lab. Ind. Rev. Com. Jan. 31, 2008). Short of a single infected employee, even if multiple persons in a particular setting are sick, there may be a question as to who was the first, and from where the exposure arose. However, there are certain circumstances, such as exposure for employees in health care, where a claim is likely compensable and should be accepted. With that said, short of extraordinary circumstances or a credible medical opinion, claims related to coronavirus should be denied.
If an employee working in the healthcare field had direct contact with someone infected with the coronavirus, their exposure likely arises out of their employment and they likely have a compensable claim for workers compensation benefits.
If an employee must travel for work, there may be risk of exposure leading to a compensable workers compensation claim. Whether a traveling employee is deemed in the course of employment is based on a three-step analysis: (1) traveling employees are presumed to be in the course of employment at all times while on a trip (known as “portal to portal” coverage); (2) except when engaged in a “deviation for a private or personal purpose”; (3) and acts reasonably necessary for or incidental to living are not deviations. Wis. Stat. 102.03(1)(f). This means a traveling employee may be deemed in the course of employment during most of, if not all, of an employment-related trip, which greatly enhances the risk of exposure.
Regardless, there are similar issues with causation and exposure for traveling employees, meaning without a credible medical opinion providing support linking exposure to the workplace or a specific setting where an employee was traveling, claims can likely be denied.