Is COVID-19 an Occupational illness under Connecticut Workers Compensation?
Connecticut's workers' compensation law covers occupational diseases, which are defined as diseases peculiar to an occupation and caused by hazards greater than the run-of-the-mill risks of working in general. Occupational diseases have been covered by the Connecticut workers' compensation law since 1921. The current wording of the definition was, to all intents and purposes, enacted in 1927. The only amendment since then was enacted in 1969, when diseases stemming from radiation exposure were explicitly added.
Because the definition was enacted so long ago, there are no transcripts of the legislative debate that would enable us to divine the original intent behind the wording. But the definition appears to have been a response to a 1925 court decision that expanded the scope of covered diseases. The General Assembly may have wanted to provide more explicit guidance to compensation commissioners and courts. Connecticut's occupational disease definition and its history appear to be in the mainstream of all states, according to an authoritative treatise on workers' compensation law by Arthur Larson.
Many states define occupational disease by statute and some leave the definition to their state courts. But regardless of the definition's source, all have the common element of distinguishing between an occupational disease, which is compensable, and a disease that can just as easily be contracted in any work setting or in a nonwork setting. To be an occupational disease, an illness must be shown to have a special causal relationship to a particular kind of work.
The interaction between employees' allergies or preexisting weaknesses and workplace conditions provides one area of dispute in determining when an illness is an occupational disease. According to Larson's survey, the majority rule is that a claimant's allergy or preexisting condition does not affect the issue of whether an illness is an occupational disease so long as the other elements are present. But a minority of rulings hold that if a claimant's allergy or hypersensitivity contributed to his illness, there is no occupational disease.
The case of Evans v. Shelton raises issues relating to occupational disease and the relevance of a claimant's preexisting propensity to develop asthma. It involves an executive secretary to the city's mayor disabled by asthma allegedly caused by a combination of preexisting allergies and exposure to indoor air pollution at work. In contesting compensability, the city argued that the claimant's illness was not caused by her working conditions at city hall and that, even if it was, the injury was not compensable because asthma is not an occupational disease of executive secretaries or office workers. The workers' compensation commissioner decided in favor of the claimant. His findings do not address the issue of occupational disease. Instead, he appears to adopt the claimant's contention that her exposure to pollutants at work over a period of several years constituted repetitive trauma to her lungs. Repetitive trauma injuries are compensable under Connecticut law when the trauma are causally connected to employment and lead directly to a worker's injury.
Connecticut's workers' compensation law emphasizes the relationship of the employee's disease to a particular job in distinguishing an occupational disease from the general run of diseases. It does this by requiring that an occupational disease be peculiar to an occupation and that it be caused by factors that are greater than the normal hazards of “employment as such” (CGS § 31-275(15)). The Connecticut Supreme Court has elaborated on the statutory definition by describing occupational diseases as those that “attach to [an] occupation a hazard that distinguishes it from the usual run of occupations and [that] is in excess of that attending employment in general.” But, at the same time, according to the court, to be compensable, a disease “need not be unique to the occupation of the employee or the workplace; it need merely be so distinctively associated with the employee's occupation that there is a direct causal connection between the duties of the employment and the disease contracted” (Hansen v. Gordon, 221 Conn. 29 (1992)). Among the diseases found compensable under the Connecticut definition are hepatitis B for a dental hygienist, lung disease from cotton dust for a textile worker, and serum hepatitis for a lab technician. Among diseases recently found not compensable is stress-induced mental disease for a music teacher.
History of Law
When Connecticut adopted its workers' compensation law in 1913, it awarded compensation for work-related “personal injuries,” a term the original statute did not define. In 1916, the Connecticut Supreme Court, by construing personal injury to mean “both an accident and a bodily injury, as distinguished from a disease,” determined that occupational diseases were not compensable (Linnane v. Aetna Brewing Co., 91 Conn. 158).
In 1921, the General Assembly amended the workers' compensation law to cover “any disease which is due to causes peculiar to the occupation and which is not of a contagious, communicable or mental nature” (1921, P.A. Ch. 306, § 11). In 1925, the Connecticut Supreme Court, on its own initiative, broadened the definition to cover contagious diseases (De La Pena v. Jackson Stone Co., 103 Conn. 93). In 1927, the General Assembly once again amended the law and defined an occupational disease as “a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such” (1927, P.A. Ch. 307, § 7).
Because there are no transcripts of General Assembly proceedings for sessions before 1945, we cannot describe the debate on the 1927 amendment. But the 1927 change appears to have been partly caused by the De La Pena decision. The 1927 act explicitly specifies that the term “injury” covered “only accidental injury which may be definitely located as to the time when and the place where the accident occurred, and occupational disease as herein defined,” a statement that may have been a rebuke to the De La Pena court for going beyond the statute in 1925. The court seemed to take the 1927 act this way because, in 1936, it stated that the amendment was meant to limit the scope of the workers' compensation law as it applied to diseases and to “include in it only certain types which occupied a definite relationship to the occupation of the employee” (Madeo v. I. Dibner & Brother, Inc., 121 Conn. 664).
The 1927 definition remains essentially unchanged. In 1969, the General Assembly added a phrase that explicitly extends the law's coverage to any disease stemming from work-related exposure to radioactive material. Although the 1969 amendment seemed to broaden the occupational disease definition by changing it from an exclusive to an inclusive one (i.e., by changing the wording from “occupational disease means a disease peculiar to the occupation” and so forth to “occupational disease includes any disease. . .”), this change has since apparently been considered purely technical (Hansen v. Gordon, 221 Conn. 29, 34, Note 2).
The legislative record of the proceedings leading to the 1969 amendment shows almost no discussion of the change in the occupational disease definition. The new wording was part of a much larger bill, which was itself considered to be a “clean up” of a 1967 act that extensively revamped the workers' compensation law. The 1969 bill, like the 1967 changes, was sponsored by labor and in public hearings before the Labor Committee, it was referred to as the “AFL-CIO bill.”
The occupational disease wording changes were not mentioned in either the House or Senate floor debate on the 1969 bill. The House passed it on May 26, 1969 after only a short discussion entirely devoted to workers' compensation commissioners' salaries. The Senate passed the bill without debate on June 2, 1969. Two witnesses at the Labor Committee's public hearing addressed the proposed changes in the occupational disease definition that were later adopted. Both comments related to the explicit inclusion of radiation exposure (Labor Committee Hearing on HB 6311, March 28, 1969, pp. 215 and 228).
Occupational Disease Statutes and Definitions
Like Connecticut, most states did not include occupational diseases within the scope of their original workers' compensation laws. When workers' compensation laws were first adopted they typically covered only accidents But, as in Connecticut, the laws were gradually expanded either by legislatures or courts to cover diseases. Thus, the issue in most states is no longer the original one of how to distinguish between an occupational disease and an accident, since both are now compensable. Rather, it is how to draw the line between occupational diseases and other diseases that are common to all and not distinctly associated with work.
According to a leading treatise on workers' compensation law, Workmen's Compensation Law by Arthur Larson (M. Bender, 1952-present), many states define “occupational disease” in their workers' compensation statutes, some in a very detailed way. Among these are Connecticut, Massachusetts, California, Virginia, Illinois, Indiana, Nebraska, and Florida. Other states, such as New York, New Jersey, and Tennessee rely on courts for their definitions. Regardless of the source, however, the principal common element of all definitions is a distinction between an occupational disease and a disease that might just as easily be caught in everyday life or in any occupation. As the New York Supreme Court expressed it:
An ailment does not become an occupational disease simply because it is contracted on the employer's premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question. There must be a recognizable link between the disease and some distinctive feature of a claimant's job, common to all jobs of that sort (Harman v. Republic Aviation Corp. 298 N.Y. 285, 82 N.E. 2d 785 (1948)).
Because of this requirement to distinguish an occupational disease from diseases that can be contracted anywhere, the causes of a particular disease are crucial to any workers' compensation claim for occupational disease. Courts have often been called upon to decide the relative contributions of a claimant's work, his lifestyle, and his own and his family's medical history to his disease.
For example, a Virginia court awarded a claimant compensation for tendinitis based on her 24 years' work as a seamstress even though she had a family history of rheumatoid arthritis, because it was more likely than not that the disease was caused by the fact that her work required her to bend and flex her wrists repeatedly (Greif Cos. (GENESCO) v. Sipe, 434 S.E. 2d 314 (1993)). But in a Florida case, a hospital worker whose duties sometimes included cleaning medical equipment was not given compensation when he developed a rare and deadly form of meningitis. The Florida court ruled that there must be something more than a “logical relationship” between the claimant's work and the disease. A claimant must also show that the disease was found in higher numbers in his profession than in ordinary life (Glasrock Home Health Care v. Leiva, 578 So. 2d 776 (Fla. Dist. Ct. App. 1991)). And a Nevada court denied occupational disease benefits for a lung disease claimed to have been caused by environmental tobacco smoke in the claimant's casino workplace. In that case, the court held that the smoke was not incidental to the character of the business (Palmer v. Del Webb's High Sierra, 838 P.2d 435 (1992)).
Effects of Allergy or Preexisting Weakness
Considering the importance of the relationship between working conditions and illness in an occupational disease claim, it is not surprising that the issue of a claimant's preexisting weakness or allergy should frequently be raised as a defense against such claims. Larson writes that the issue of whether illnesses resulting from the effects of working conditions on a claimant's allergy, hypersensitivity, or preexisting weakness can be classed as occupational diseases is one “that continues to elicit some divergence of opinion. . . .” His survey shows that, in a minority of cases, claimants' allergies have categorically ruled out their occupational disease claims. But in a majority of cases, the rule is that an individual's allergy or weakness is not material if it is shown that particular employment conditions caused the injury.
In the minority camp, Larson cites cases from Delaware (employee's allergic condition mainly caused by his predisposition to the ailment and not to conditions at the auto assembly plant where he worked), Kansas (mill worker's sensitivity to wheat dust that aggravates a preexisting bronchial condition not an occupational disease), Kentucky (shortage of breath from continuous exposure to vapor from acid stripper and dust from a vinyl coating process not compensable if due to asthma or allergic reaction), Louisiana (cement worker's dermatitis due to congenital skin condition not compensable), Tennessee, Maryland (asthma from rubber fumes not known to have occurred in other rubber workers), Missouri (mill worker's asthma caused by prolonged exposure to wheat dust is not an occupational disease because his own allergy and innate sensitivity was a contributing factor), and North Carolina (no compensation when a worker develops an allergy to workplace substances).
Among cases conforming to the majority rule, Larson cites ones from Alabama, Alaska (compensation not barred because risk of a disease is not generally recognized or because only those unusually susceptible or predisposed will contract a given disease), Arizona, Colorado, Florida, Illinois (even if a claimant had an unusual sensitivity to phenothiazine, he is still entitled to workers' compensation if seizure disorder was caused by exposure to the chemical), Kentucky, Louisiana, Michigan (compensation awarded school teacher who suffered allergic symptoms when school room was painted), Montana, Nebraska (grain elevator employee's own susceptibility to wheat dust did not preclude compensation for emphysema), New Jersey, New Mexico (claimant compensated when inhalation of paint fumes at work activated claimant's allergy because inhalation hazards on his job were a degree beyond that prevailing in employment generally), New York (baker's bronchial asthma caused by exposure to dust, fumes, molds and yeast, to which he was allergic, is an occupational disease), North Carolina, Oregon, Pennsylvania, Tennessee, Texas (cement worker's allergic reaction to chromates in cement held to be an occupational disease), and Wisconsin.
But even though an employee's allergy is not usually considered to be a per se disqualification for a compensable occupational disease, the disease must still be caused by conditions that are found in a particular type of employment, and in some sense inherent in it, to a greater than normal extent, like the mill worker's exposure to wheat dust and the baker's to flour and yeast. That this is a key factor is illustrated by another New York case in which a high school teacher suffered an allergic reaction to construction dust when she was assigned to teach in an area of the building under construction. Her condition was found not be an occupational disease because the construction was a temporary, atypical situation. “It is not enough that the ailment is related to a particular place where the claimant happens to work for a time. This was not a risk of teaching but of being in a particular building at a particular time” (Dando v. Binghamton Bd. of Educ., 14 A.D.2d 1060, 490 N.Y.S. 360 (1985)). The same allergic reaction from a construction worker would more likely be considered an occupational disease.
EVANS V. SHELTON
This case involves a claim for workers' compensation by an executive secretary to the mayor of Shelton and part-time clerk of the city's board of aldermen. The claim was filed in the fourth workers' compensation commission district. A formal hearing was held on February 8, 1995. The sole issue in the formal hearing was whether the claimant's injury was compensable, an issue decided in the claimant's favor by Commissioner Frank Verrilli on June 5, 1995. The city filed a motion to correct the finding and award on June 16, 1995.
The claimant, Dolores Evans, maintains that she is disabled by asthma, which she attributes to repetitive trauma and repetitive acts. The repetitive traumas were exposures over several years to various fumes and irritants in her workplace, the Shelton city hall. The alleged exposures were the result of construction activity, including dust and fumes from paints, glues, pesticides, and solvents; and the effects of having a photocopy machine placed within three feet of her desk. Her claim is supported by medical testimony from her personal physician and a lung specialist appointed as an independent medical examiner (IME) by Commissioner Verrilli. The IME testified that Evans suffered from a recognized condition resulting from workplace exposure to “nonspecific irritants.” He also said she was predisposed to asthma because her airways were hypersensitive from allergies and recurrent viral infections. Her asthma developed
from her preexisting condition and the “additional burden” of environmental exposures in the workplace. Both doctors agreed that there was a causal connection between the claimant's workplace exposure to environmental irritants and the development of her asthma.
The city attacked the credibility of the medical testimony on the grounds that the claimant and the doctors could not identify a particular irritant with a time and place of the claimant's exposure at city hall and because the medical opinions were based entirely on the history and sequence of events related to the doctors by the claimant. The city argued the claimant's sequence and facts were incorrect and that therefore the medical testimony about the causes of the claimant's condition and its relationship to her work was valueless. The city maintained (1) that the claimant's hyperactive airway condition is a preexisting disease that was not made materially or substantially worse by her employment; (2) that she did not show that she has asthma, or if she has, that it arose out of and in the course of her city employment; (3) that her illness is caused by her preexisting condition and concomitant weakened resistance; (4) that she has no permanent partial disability of the lungs; and (5) even if her condition is caused by environmental irritants in the workplace, she has not shown the direct and distinct connection between the nature of her employment duties as a secretary and her illness required to meet the occupational disease definition.
The commissioner's findings generally agree with the IME's medical opinion as follows: (1) the claimant is predisposed to develop asthma; (2) her workplace exposures substantially contributed to her condition; (3) without the workplace exposure, her asthma would not be as bad as it is; (4) the claimant sustained a compensable injury to both lungs arising out of and in the course of her employment with the city of Shelton; and (5) she is entitled to workers' compensation benefits to be determined after further hearings. Commissioner Verrilli's decision does not address the occupational disease issue raised by the city. Instead, in paragraph 49 of his decision he states that “the medical evidence indicates that the claimant's condition was the result of repetitive trauma due to exposure to the nonspecific irritants in the workplace.” Injuries directly resulting from repetitive trauma are expressly considered compensable under the workers' compensation law if the trauma are work-related (CGS § 31-275 (16) (A)).
If you have been diagnosed with COVID-19 and have questions, feel free to contact me for a free consultation. If you are a front line health care worker and are working with Novel Corona virus patients on a day to day basis, my suggestion will probably be for you to file a claim.