Alaska Statute 23.30.395(24) includes in its definition of an injury, “an
occupational disease or infection that arises naturally out of the
employment or that naturally or unavoidably results from an accidental
injury.” It is well established that a virus such as COVID-19, or
Coronavirus, is an illness that if contracted in the workplace, would
entitle the affected worker to workers’ compensation benefits that may
arise from the illness.
The Alaska Supreme Court, in *Delaney v. Alaska Airlines, *held that in
order to succeed in a claim for an “occupational disease” or illness, an
employee must show that: 1) the disease was caused by the conditions of
their employment; and 2) as a result of the conditions of the employment,
the risk of contracting the disease is greater than that which generally
prevails in employment and living conditions. In a claim for Coronavirus,
the Board would evaluate this two-prong test at the first step of the
compensability analysis. Both elements must be satisfied to create the
“preliminary link” between employment and the claimed workplace disease.
The Alaska Supreme Court described the rationale for requiring a
“preliminary link” before finding a worker is entitled to workers’
compensation benefits as, “… the idea is to rule out cases in which
claimant can show neither that the injury occurred in the course of
employment nor that it arose out of it, as where he contracted the disease
but has no evidence to show where he got it. In claims that are ‘based upon
highly technical medical considerations,’ medical evidence will likely be
necessary for the employee to meet their burden of showing a ‘preliminary
link.’”
In reviewing claims for Coronavirus, the Board would likely find that the
disease is a “highly technical medical consideration” and require some
medical evidence that the worker has contracted the virus. Once medical
evidence establishes that a person has the virus, they will also need to
show that they contracted it through the conditions of their employment.
The Alaska Supreme Court has held that this requirement is intended to bar
claims where an employee “has no evidence” that they contracted an illness
out of the course of their employment. Employees seeking benefits for
Coronavirus would likely need to prevail on one of the two theories of
compensability for occupational disease. If the employee can show evidence
of direct contact with a person positive for Coronavirus in the workplace,
the presumption of compensability will have attached. Or, alternatively, if
the employee can show that the condition of their employment exposed them
to a greater risk of contracting the disease than the general public, there
is also a good chance that the Board would find a preliminary link between
the employment and the disability or need for treatment, and the employer
and its carrier may be liable.
If the employee can establish the “preliminary link,” the employer must
rebut the presumption, or pay benefits on the claim. In *Huit v. Ashwater
Burns,* the Alaska Supreme Court held that rebutting the presumption
requires the employer to either eliminate the possibility that the illness
was related to the employment, or show that some other source outside of
the employment caused the disease. It will be difficult to rebut the
presumption in cases where the claimant can show direct contact with an
infected person in the workplace. In such instances, benefits will likely
need to be paid for any disability or need for treatment related to the
Coronavirus. Employers and their insurers should have more factual grounds
to dispute a claimant’s assertion that their workplace has placed them at a
greater risk for contracting the virus than the general population. Factors
to consider are how many people might the claimant come in close contact
with on an average day, were there safety precautions such as hand
sanitizing stations or masks, or other measures in the workplace to reduce
the likelihood of spreading the disease was acquired through work exposure.
We recommend that Alaska employers and their insurers and adjusters be
prepared for an influx of claims related to the Coronavirus. Actions are
being taken at the local and State level to minimize the spread of the
virus, and as a result of keeping people away from workplaces that have
high risks for spreading the disease, it could result in a significant
decrease in the potential burden on employers and their workers’
compensation carriers during this pandemic. Where possible, employers are
encouraged to take steps in reducing the possibility of spreading the
disease in the workplace. By doing so, it may improve chances of convincing
the Board that the person’s employment did not place the claimant at
greater risk of getting the disease than the general population.
Claims should be closely evaluated when they come in for whether they
satisfy the first step of the presumption analysis and create the
preliminary link between their employment and their illness. It will be
during that first step of the presumption analysis that employers will have
the best chance to successfully deny a claim, because once the presumption
has been attached, it may be difficult to successfully rebut under the
standard articulated by the Court in *Huit*.
Please feel free to contact us if there is more information we can provide
on this issue.
Below are informational links from the Division about how COVID-19 is
effecting Board and Appeals Commission procedures and from the State of
Alaska regarding its mandates which may affect medical care in workers’
compensation claims. Please note that these bulletins and mandates can
change.
http://labor.state.ak.us/wc/bulletins/20-02.pdf
http://labor.state.ak.us/wc/bulletins/20-02.pdfhttp://labor.state.ak.us/wc/bulletins/20-03.pdf
http://labor.state.ak.us/WCcomm/documents/AWCAC_Procedureal_Order_No1.pdf
http://dhss.alaska.gov/News/Documents/press/2020/SOA_03192020_HealthMandate005_ElectiveMedProcedures.pdf
We wish you all good health!
Meshke Paddock & Budzinski, P.C.
