Insight, analysis & opinion from Joe Paduda

Oct
26

Swine flu and workers comp

While there will be differences due to jurisdictional rules, I’d be surprised if we don’t see Workers Comp cover many health care workers who get the flu.
Health care workers are getting inoculated due to their higher risk, the prevention information you mention indicates they are at risk due to their employment status, and there’s no question of their increased exposure risk.
The Federal government’s website, flu.gov, directs workers who are exposed to flu to contact their state work comp boards for questions on eligibility and coverage – that direction alone may encourage sick workers to file for comp, and if they were exposed at work and the exposure meets specific criteria, they may well have a compensable claim.
In addition, lower paid workers who do not have health insurance may – and I emphasize MAY – be more likely to claim WC for flu as they have no other coverage.
My sense is in many jurisdictions and for many claimants, swine flu would be compensable – if it can be demonstrated that the contact was ‘during the course of or arising out of employment’. And for health care workers, that shouldn’t be too difficult to prove.
Jon Coppelman wrote a good synopsis of this some months ago – here’s an excerpt from his piece:

In order for the flu to be a compensable event under comp, certain requirements must be met:
: the individual must be “in the course and scope of employment” when exposed to the virus
: the exposure must arise out of work (as opposed to being a totally random event)
: work itself must put the individual in harm’s way

My sense is in many jurisdictions and for many claimants working in health care service delivery, swine flu will be compensable – if it can be demonstrated that the contact was ‘during the course of or arising out of employment’. For health care workers, that shouldn’t be too difficult to prove.


5 thoughts on “Swine flu and workers comp”

  1. I think there are three groups of workers who may contract swine flu in the ocurse of and arising out of work: healthcare workers, transportation workers,and office workers who are assigned as skeleton crews to come to the office.
    But in most states there were be a serious problem with coverage, H1N1 is a disease. In veritually every state, either the disease will not be covered due to legal exclusion, or the procedural barriers to getting the claim covered a substantial.
    Both these problems have severely complicated World Trade Center cleanup worker claims.

  2. I would expect this to vary widely from state to state, depending on burdens of proof in occupational disease cases, whether by statute or case law. In states where the burden of proof is on the worker, it could be a high hurdle indeed.

  3. I don’t doubt that H1N1 will likely be considered compensable in a number of jurisdictions. However, I think the overall exposure to the workers compensation system is minor.
    99% of the cases will be a few days off work and little to no medical treatment. The lost time probably won’t exceed the waiting period in most jurisdictions.
    There will be no PPD associated with the condition either.
    Worst case is someone ends up in the hospital and dies. These will be rare in the health care field as those workers are the first ones to receive the vaccine and they know the precautions to use to avoid contracting the flu.

  4. Good points, Mark. It will be interesting to see if more compensable cases show up in those Canadian jurisdictions where there is no waiting period for lost time benefits. We might add that there will be some seasonal flu cases occurring too, and there will not always be a diagnosis of which flu variant caused the illness.
    All this goes out the window if there is a death. The incentive to pursue a claim in that case would be very strong, as the benefits at stake could be very large.

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Joe Paduda is the principal of Health Strategy Associates

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