Under Iowa workers’ compensation law there are two ways in worker injured by COVID-19 can recover work comp benefits. The choice of method depends on whether the injury developed from a prolonged and passive exposure; or whether the infection was linked to a sudden, specific incident of exposure.
If a worker is injured as a result of a sudden and specific incident of exposure then the claim is handled as a regular workers’ compensation injury under Chapter 85.
If the injury is found to have developed from a prolonged and passive exposure, then the remedy is under Iowa Code Chapter 85A which deals with occupational diseases.
Iowa Code Chapter 85A defines occupational diseases as:
“. . . only those diseases which arise out of and in the course of the employee’s employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease.” (Emphasis added).
The fighting issue in most occupational disease cases is whether the employee would have been equally exposed to potential danger outside the occupation. My early estimate is that a health care worker who develops COVID-19 has a strong case. By contrast, a retail worker that develops Covid-19 probably has a weaker claim.
I am going to talk a little bit about how past cases have analyzed the question of whether the injury developed from a prolonged and passive exposure or a sudden and specific exposure.
- Chapter 85A: Prolonged or Passive Exposure.
Burris v. Anderson Corporation and Old Republic Insurance Company, File No. 5061159 (Iowa Workers’ Compensation Appeal Decision, January 23, 2020). In this case the claimant worked for over 30 years at a factory which manufactured doors and windows. The claimant was exposed to a number of chemicals at the plant that ended up damaging his kidneys. The claimant began receiving conservative treatment for his kidney problems in approximately 1994. The claimant underwent a kidney transplant in 2007. However, the claimant was able to work until November 11, 2015. The Commissioner ruled this was a prolonged exposure and compensable under Chapter 85A.
Neal v. Mercy Hospital, File No. 1015028 (Arbitration Decision, June 16, 1994). The claimant was employed by Mercy Hospital and in his 30+ year career came into contact with substantial amounts of asbestos. The claimant eventually developed asbestosis and pleural lung disease with calcification. The Deputy Commissioner ruled that this made it a Chapter 85A claim.
Feller v. Bunge Corporation and Ace American Insurance Company, File No. 5047545 (Arbitration Decision, November 18, 2018). The claimant developed severe asthma-like condition and vocal cord dysfunction. The claimant prevailed on his argument that his exposure to grain dust while working in a grain elevator for his employer qualified as an occupational disease under Iowa Code Chapter 85A.
Driscoll v. Cargill, Inc. and Old Republic Insurance Co., File No. 5058759 (Arbitration Decision, February 19, 2019). The claimant worked for Cargill for about 12 years as a boiler operator. In this job the claimant came into contact with fumes, coal dust, and bottom ash. The claimant developed COPD and asthma, and the Workers’ Compensation Commissioner concluded that she was entitled to benefits under Iowa Code Chapter 85A.
Frit Industries v. Langenwalter, 443 N.W.2d 88 (Iowa App 1989). The claimant worked as a maintenance lead man for Frit Industries from 1974 to 1982. Shortly before losing his job the claimant began suffering from migraine headaches, muscle fatigue, memory loss and irritability. The claimant was found to have elevated lead levels in his blood from exposure at work. After being removed from the lead exposure most of his symptoms improved, but he still suffered ongoing problems with his memory. The Court found that the lead intoxication and resulting injuries qualified as an occupational disease under Iowa Code Chapter 85A.
- Chapter 85: Sudden and Specific Exposure.
Perkins v. HEA of Iowa, Inc., 651 N.W.2d 40 (Iowa 2002). The claimant worked as a nurse at a retirement facility. A patient had a shunt in his leg that was leaking blood. The claimant was attempting to re-dress the shunt wound when the leg erupted and the claimant was sprayed with blood all over her body and in her mouth, eyes, and ears. The patient was infected with Hepatitis C and the claimant eventually developed Hepatitis C. The Court found that this constituted a sudden exposure which would be compensated under Iowa Code Chapter 85.
IBP, Inc. v. Burress, 779 N.W.2d 210 (Iowa 2010). Iowa workers who are exposed to brucellosis frequently recover under the Chapter 85A Occupational Disease statute. However, in the Burress case the Court found that the claimant developed brucellosis from hog blood coming into contact to a cut that he had on his own skin. The Court found that this qualified as a sudden exposure and therefore the claimant was entitled to compensation under Chapter 85.
If a worker, and especially a health care worker, suffers permanent disabilities as a result of COVID-19 the worker will have two different options for recovery under the Iowa workers’ compensation system. As a practical matter, it is always a good strategy to bring both a Chapter 85 claim and a Chapter 85A claim at the same time because of the difficulty in predicting how the Workers’ Compensation Commissioner will ultimately view the case. Under Chapter 85 it is important to give notice of a potential claim within 90 days of injury. Under Chapter 85A the time limit is potentially longer, but it is always better to give notice within 90 days of the onset of a potential occupational disease.