News

By: Guy Alton Wade

While Coronavirus is not an accidental injury as contemplated in the Workers’ Compensation Act, it may be considered an “occupational disease” if it meets the statutory definition for a compensable claim. 

In Ark. Code Ann. 11-9-601(e)(1)(A), “Occupational disease” is defined as “any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee or naturally follows or unavoidably results from an injury as that term is defined in this chapter.” Subpart (B) sets out, “However, a causal connection between the occupation or employment and the occupational disease must be established by a preponderance of the evidence.” It further provides: (2) “No compensation shall be payable for any contagious or infectious disease unless contracted in the course of employment in or immediate connection with a hospital or sanitorium in which persons suffering from that disease are cared for or treated.” (3) “No compensation shall be payable for any ordinary disease of life to which the general public is exposed.” 

The key consideration is a determination of when and where did the exposure and contraction of the disease occur. In making that determination, the statue provides further guidance at (g)(1), where it states that, “An employer shall not be liable for any compensation for an occupational disease unless: (A) The disease is due to the nature of an employment in which the hazards of the disease actually exist and are characteristic thereof and peculiar to the trade, occupation, process, or employment and is actually incurred in his or her employment.” Generally, occupational diseases are treated as gradual onset injuries. As a result, a claimant would need to show that the major cause of the disease was the work and not other exposure. This goes back to the causation analysis required by statue as opposed to generalized exposure to an ordinary disease of life experienced by the general public. 

 Obviously, certain occupations require that employees work in close connection to those that have either tested positive with COVID-19 or are suspected but unconfirmed cases of COVID-19. In this regard, the Governor recently issued Executive Order 20-19 which amended Executive Order 20-03. This Order notes that in addition to those who contract an occupational disease in connection with a hospital or sanitorium, it may also include “first responders and front-line healthcare workers to seek workers compensation for exposure to COVID-19 in the line of duty and outside of those settings.” This order still mandates proof of a causal connection between the contraction of the disease and the claimant’s work in order to be entitled to workers’ compensation benefits. With respect to workers’ compensation benefits specifically, once it is determined that the exposure and development of the occupational disease was caused by the work, then the claimant would be entitled to consideration for the applicable indemnity and medical benefits as would attend any work-related injury claim. 

If an employee believes they are disabled in conjunction with contracting an occupational disease, then there are also procedural guidelines set out. Ark. Code Ann. 11-9-603(a)(2)(A) provides that, “[W]ritten notice shall be given to the employer of an occupational disease by the employee, or someone in his or her behalf, within ninety (90) days after the first distinct manifestation thereof.” Timely notice however, can be waived by the employer if not raised at the first hearing or proceeding. Notice is likely necessary to permit the timely investigation of the circumstances related to the contraction, development and causation in connection to a claimant’s work or any unrelated cause.