Workers’ comp claims must pass test

When an employee files a claim seeking workers’ compensation benefits, the employer, through its insurer, may deny such benefits if it believes the injury is not compensable under the Workers’ Compensation Act.

Some reasons for denying such benefits are factual in nature. For example, an insurer may deny an employee benefits due to the belief that the injury was not caused at work. Other reasons for denying benefits are legal in nature. For example, an employee who was injured at work but only missed five (5) days of work will be denied benefits since legally one must miss more than five days of work to receive such benefits.

What happens when the parties (employee and employer) agree that an injury occurred at work, however do not agree on whether such an injury is compensable? Simply said, it is a legal dispute which will be heard by a judge at the Industrial Accident Board.

If a machine operator contracts tuberculosis from an infected coworker, is this compensable? This scenario was recently heard by a three-judge panel of the Department of Industrial Accidents (the level above the single judge). In summary, the panel found the worker was not entitled to workers’ compensation benefits. Let me explain why.

In workers’ compensation, a personal injury includes infectious or contagious diseases, like tuberculosis, if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment. With regard to the machine operator, the panel concluded that contracting the disease was not a hazard inherent in his employment. The panel noted that nothing made tuberculosis essentially characteristic of the employee’s job.

The panel remarked that the danger of exposure to germs from co-employees while working in close contact is a condition common and necessary to a great many occupations. As such, without the hazard of contracting tuberculosis being ‘essentially characteristic of the employment,’ such an exposure as in the machine operator’s case cannot support an award of workers’ compensation benefits.

This seems to make sense. Otherwise, every illness contracted at work would make the employee eligible for workers’ compensation benefits, even the simple cold or flu lasting more than five days. Of course if the hazard of contracting such diseases by an employee is inherent in the employment then the employee will have an injury or disease that is compensable under the Workers’ Compensation Act. For example, a nurse or other health care professional that contracts a disease on the job will have a compensable injury.

Although this case was limited to the illness of tuberculosis, it clearly has vast implications. It will make no difference of what illness was contracted on the job. If contracting disease is not inherent in the employment, then the employee will not have a legally compensable injury.
Other issues may be argued to curb this seemingly rigid rule, however the rule will be difficult to overcome. The issue to be argued is what is “inherent in the employment”?

What if employees are in close working proximity to each other, work in a building that has controlled heating or air conditioning, in a building with windows that cannot open for fresh air, in a building that has poor maintenance such that the cleaning filters are rarely changed, in a building that has a drug store for sick individuals? Would that scenario make a difference? What if the employee has an immune problem, making the employee more susceptible to disease? Wouldn’t contracting such diseases by that employee be arguably inherent in the employment?

Although the machine operator case was held in favor of the employer, in a future case, the facts could be such that an employee’s contracting a disease could arguably be held to be inherent in the employment, even where the job does not seem to be inherently dangerous in contracting illness.