NCCI Court Case Update

Colorado—COVID-19 as Occupational Disease

On May 2, 2024, the Court of Appeals of Colorado, in Life Care Centers of America v. Industrial Claims Appeals Office, ruled as a matter of first impression that COVID-19 can be considered an occupational disease under the state Workers’ Compensation Act.

In this case, an employee who worked at a skilled nursing facility died after contracting COVID-19 in May 2020, at a time when the facility was experiencing a COVID-19 outbreak. The employee’s surviving spouse filed a workers compensation (WC) claim and the administrative law judge (ALJ) awarded benefits reasoning that the employee suffered a compensable occupational disease causally related to the employment.

On review, the appellate court considered Colorado statute 8-40-201, which provides the definition for occupational disease under WC. The court found that based on the definition, a claimant must establish a reasonable causal connection between contraction of the disease and the employment, and that it is sufficient that the claimant presents facts and circumstances indicating a reasonable probability that his disease was proximately caused by the conditions of the employment. The court concluded that there was sufficient evidence presented that the employee contracted COVID-19 at work and affirmed the ALJ finding of compensability.

Nebraska—COVID-19 as an Occupational Disease or Ordinary Disease of Life

On April 19, 2024, the Supreme Court of Nebraska, in Thiele v. Select Medical Corporation, held that to determine whether a workers compensation (WC) claimant’s COVID-19 infection is a noncompensable ordinary disease of life or a compensable occupational disease, courts must look at the prevalence of the disease at the time of infection.

In this case, an employee petitioned for WC benefits alleging that her contraction of COVID-19 in March 2020 was compensable as an occupational disease that arose out of her employment as a nurse. The Workers Compensation Court dismissed the case on the basis that, at the time of the hearing in 2022, COVID-19 was an ordinary disease of life and thus not compensable as an occupational disease.

On review, the Nebraska Supreme Court noted that Nebraska statute 48-151(3) excludes from the definition of occupational disease all ordinary diseases of life to which the general public is exposed. Nonetheless, the court reasoned, although the same diagnosis is also common in the community, a work-related injury may be a compensable occupational disease because the employment has characteristics that greatly raise the worker’s risk, and the injury suffered by the worker is the natural result of that risk. The court also noted that the law permits a WC award for occupational disease due to a period of brief exposure. Therefore, the court said, the issue of compensability, including whether the disease is an ordinary disease of life, should be judged at the period of exposure and not years later.

With that, the court concluded that the Workers Compensation Court erred when it found that the nurse’s WC claim was not compensable on the basis that COVID-19 was an ordinary disease of life at the time of the hearing in 2022. However, the court found that the record in the case contained genuine issues of fact as to whether, at the time of the nurse’s infection in 2020, COVID-19 was a compensable occupational disease or a noncompensable disease of ordinary life.

West Virginia—Apportionment of Disability Awards

On April 22, 2024, the Supreme Court of Appeals of West Virginia, in Duff v. Kanawha County Commission, clarified that employers bear the burden of proof when seeking to apportion disability awards in workers compensation (WC).

In this case, an employee was evaluated as having a 25% whole person impairment. The lower courts, applying West Virginia statute 23-4-9b, granted a 13% permanent partial disability (PPD) award due to the employee’s preexisting conditions. West Virginia statute 23-4-9b provides that when an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, and thereafter suffers a compensable injury, the prior injury shall not be taken into account when fixing the amount of compensation.

On appeal, the supreme court reasoned that while proof of a preexisting condition is necessary to apportionment, it is not itself sufficient, as the statute requires proof of the degree of “a definitely ascertainable impairment.” The court found that pursuant to the language of the statute, the employer has the burden of proving that apportionment is warranted by showing that the claimant “has a definitely ascertainable impairment resulting from” a preexisting condition. According to the court, this requires the employer to prove that the preexisting condition contributed to the claimant’s overall impairment after the compensable injury, and the degree of impairment attributable to the claimant’s preexisting condition. ​

With this decision, the court reversed rulings by the Intermediate Court of Appeals and the Workers’ Compensation Board of Review and ordered a 25% PPD award as the employer failed to carry the burden necessary for apportionment.

For more information on other cases monitored by NCCI’s Legal Division, visit previous Court Case Updates and Court Case Insights under the Legal section of INSIGHTS on ncci.com.

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