Synopsis: What Is the “Compens-Ebola-ty” of the New Deadly African Virus in Workers’ Compensation?

Editor’s comment: We were in Dallas, Texas last week for the D/FW RIMS meetings and everyone is talking about the Ebola virus and its impact on workers’ compensation and possibly general liability for U.S. companies. As background, the Ebola virus is named after the river in the area it was first isolated in 1976. The first known cases in the United States were discovered in 1989. The condition of infection can be termed by doctors and scientists as “extreme amplification” where a host can be effectively consumed by a virus that grows so fast it can be seen growing by the human eye. Once it has been contracted, the fatality rate is about 70-90% although some progress has been made in counter-attacking it. There is no vaccine but scientists are working hard to find one.

Our readers are asking us when this medical condition would be compensable under workers’ compensation—to be academically accurate, the condition is a disease and therefore the focus would be on “exposure” and not an accident. Such a condition would be compensable under the appropriate workers’ compensation or occupational disease act. Some states, like Illinois have separate but parallel legislation; some states cover both accidents and exposures under the same act.

Two tests must be satisfied before an illness or disease can be considered occupational and thus compensable under WC or OD Acts.

First, the exposure causing or leading to development of the disease must be “occupational,” meaning it arose out of and in the course of employment.

Second, compensability of an exposure is wholly dependent upon the occupation and general or specific tasks of the employee. Illinois, Indiana and most states require the exposure arise out of or be causally connected to conditions “peculiar” of specific to the work.

To arise out of and in the course of employment is a function of the general or specific work tasks of the employee. Qualifying an exposure as occupational is the burden of the worker but the incidence and prevalence of a disease in many work populations can’t be ignored by employers. Either way, the employee or their counsel have to demonstrate they were at work when they were exposed to and later contracted the illness or disease.

Defining an exposure leading to illness or disease as compensable may ultimately require the Arbitrators/hearing officers to analyze expert medical opinion and admissible lay evidence. There is no singular test that can be applied to every case to declare an illness or disease as compensable or non-compensable, so most claims are judged on their own merits and circumstances. Please note the defense team at KCB&A has numerous experts on occupational diseases/exposures and we are happy to assist you in locating a great expert on your claims—simply send a reply.

Medical opinion indicating the conclusion an exposure leading to disease is occupational is not necessarily based on the medical condition but on the facts surrounding the patient’s sickness. Expert physicians and scientists will investigate:

The timing of the onset of symptoms in relation to work performed.
The nature of the work performed.
Co-workers with similar exposures or diseases:
Whether the exposure/disease is common to workers over a period of years in that particular industry;
If the employee has a personal proclivity that may lend itself to the illness such as asthma or an allergy; and
The habitus, age, personal habits and medical history of the worker. There is no question workers in poor physical condition, such as obesity, diabetics, tobacco/marijuana smokers and questionable family medical histories may be more likely to contract a disease or illness, clouding the causal relationship between occupation and disease.

How About Ebola?

Judged against the factors as we understand them Ebola is a very rare workers’ compensation exposure for U.S. workers. Unless it can be demonstrated the employee has an increased risk of contracting Ebola because of the nature of the job, this virus is not occupational and therefore won’t be compensable for most workers. Employees working in the healthcare and transportation industries may be able to prove such increased risk as they have little choice but expose themselves to this deadly and incurable virus as a regular part of their job duties. Beyond healthcare and transportation workers, not many workers may qualify for workers’ compensation or OD protection due to casual or random exposure to Ebola.

We feel many Arbitrators/hearing officers may apply more of a “reasonably foreseeable” standard which then opens up the potential for a raft-load of ancillary claims such as construction worker doing a renovation in a medical facility treating Ebola patients, regular business travelers, maybe even airline maintenance workers who clean the specific airplanes.

In the general liability field, limitation of liability clauses are apparently in increasingly wide use and most often cap or limit damages for which a plan or plan sponsor may be subject to liability. In California, for instance, courts appear to consider whether a limitation of liability provision violates public policy, or is otherwise unenforceable or whether the party seeking the limitation uses a standardized contract that doesn’t allow a covered individual to pay additional fees for protection against negligence or other torts which arise.

At present, the numbers of folks in the United States suffering from the disease remain very small and pale in comparison to other major diseases and causes of death in the U.S. Let’s hope that experience continues. If you need help investigating and defending occupational disease claims in the future, send a reply.

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Synopsis: Contract Employees In IL Not Provided Retaliatory Discharge Protections. Analysis by Matthew Gorski, J.D.

Editor’s Comment: We consider this a very important Illinois Appellate ruling on applicability of a contractual employee’s right to bring a retaliatory discharge action. The First District Appellate Court reversed a jury’s award of a whopping $1,000,500.00 to an assistant principal on the basis that a contractual employee is not entitled to the same protections as an at-will employee. At Goodlow Magnet School the principal and assistant principal signed a four-year employment contract which outlined the rights and duties of both employer and employee. At the beginning of the new principal’s four-year term, the principal decided to select a new assistant principal and not retain the existing assistant principal.

In 2001 the principal was Patricia Lewis and the assistant principal was Kenneth Taylor. As part of their various duties, they were required by law to report any suspected child abuse. One day, Lewis was sick and Taylor was sitting in as principal for Lewis. An incident occurred where a special education teacher allegedly kicked a second grader in the back of the leg. Another teacher reported it to Taylor. Taylor then reported it directly to the police after the teacher refused to report it. Lewis was upset about Taylor’s actions of reporting the incident to the police because he never conducted a fact-finding inquiry and the actions by the special education teacher were actually authorized by the second grader’s parents.

At the end of the term, Taylor’s contract was not renewed and he was effectively “terminated.” He filed suit against the school board, alleging a common-law claim for retaliatory discharge and a claim for violation of the Illinois Whistleblower Act. To establish a retaliatory discharge claim, an employee must prove that (1) the employer discharged him, (2) the discharge was in retaliation for his activities, and (3) the discharge violated a clear mandate of public policy. This is an act that mostly protects individuals who file a workers’ compensation claim or report illegal conduct by an employer or its agents. The jury found for Taylor on his retaliatory discharge claims and awarded him the substantial verdict listed above.

On appeal, the First District Appellate Court held retaliatory discharge only encompasses protection for at-will employees, not contractual employees. Since Taylor had a four year contract, he was considered a contractual employee, and therefore when the contract simply wasn’t renewed, he was unable to recover for retaliatory “discharge” or non-renewal.

We recommend Illinois employers consider the instant case, and various other factors into consideration when deciding to make your employees either contractual or at-will. There are positives and negatives for both types of employees. It is also always important to be clear and concise as to whether your employees are at-will or contractual employees.

This article was researched and written by Matthew G. Gorski, J.D. Matt can be reached with any of your questions or concerns regarding employment law, general liability defense, and workers’ compensation defense at mgorski@keefe-law.com.

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Synopsis: Was it a Real WC Reform or Another Fake Illinois “De-form?”

Editor’s comment: The Governor’s election ends in 15 days, folks. Your editor already “early-voted” and we recommend you vote as soon as possible and avoid the rush. We are trying to report the facts and remain as bipartisan as possible but you might note a slight shift to our reporting.

In 2011, we note there was a section of the new law which supposedly responded to the hilariously high level of workers’ compensation benefits being paid to state government workers. We reviewed two scathing reports, one by IL Auditor General William Holland and the other by Attorney General Lisa Madigan. Both pointed out how poorly our state government handled their workers’ comp claims. That hasn’t ended, to our understanding.

This is taken from the 2011 Amendments to the IL WC Act:

Sec. 405-411(e) There is hereby created within the Department of Central Management Services an advisory body to be known as the State Workers' Compensation Program Advisory Board to review, assess, and provide recommendations to improve the State workers' compensation program and to ensure that the State manages the program in the interests of injured workers and taxpayers. The Governor shall appoint one person to the Board, who shall serve as the Chairperson. The Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the President of the Senate, and the Minority Leader of the Senate shall each appoint one person to the Board.

Why put that in the legislation if you had no intention of doing it? From our research, it appears the WCPAB only met once in early 2012: http://www2.illinois.gov/cms/Employees/benefits/rm/Documents/State%20WC%20Advisory%20Board%20Agenda%20011212.pdf. It appears they never again met, in violation of the legislation above. We cannot find a listing of the required members on the web. So much for managing the program in the interests of taxpayers.

Why do we think the concept was dropped? Well, if you look at this report in 2012, you may note they outlined the State of Illinois had 18,000 pending state WC claims or about one pending claim for every three state workers. We consider that a staggering number of state WC claims. http://www2.illinois.gov/cms/About/Reports/Documents/2012_Transfer_Workers_Comp.pdf. We also understand they continue to annually spend more than $150M of your tax dollars in generous workers’ comp benefits to Illinois government workers. Someone in the current IL State administration stopped caring about spending/wasting taxpayer money on government workers a long time ago. Illinois government provides our state workers effectively “free” lifetime pensions, actually free or 100% taxpayer funded state retiree healthcare coverage for life and millions in WC benefits every year.

There are no subsequent updated reports about the IL State WC program anywhere in their many web pages. Basically, this means all of your State WC program is being handled in secret. This sort of hush-hush mismanagement is precisely what we have become used to in this nutty state.

If you aren’t sure, the secret-powers-that-be, including Governor Quinn are poised to raise our top income tax rate to 8%. If Gov. Quinn wins, we assure you this is going to happen in the November veto session in Springfield or in about one month from today. If you want higher taxes, tolls and government fees, vote for him. If you want to stop rising taxes and see better management in Illinois government, we recommend you vote for Bruce Rauner.

As an aside, while looking up other things, if you go to this web page http://www2.illinois.gov/cms/About/Reports/Pages/default.aspx, you will note the IL Department of Central Management Services has about $79M on deposit and the return they are getting on that gigantic sum of money is $733 a month!! That return is .011%!!! Again, do you want to keep the managers in place that can only find a .011% return on state funds?

We appreciate your thoughts and comments. Please post them on our award-winning blog.

KCBA Blog

10-20-14; The "Compens-Ebola-ty of the West Africa Virus under WC/OD; Retaliatory Discharge Ruling of Note, analysis by Matt Gorski; More Failed IL WC Reforms and much more