Gelman: Can Comp System Be Vaccinated Against Flu?

Tuesday, February 27, 2018 | 0

This flu season has been epidemic. It has severely affected the occupational health network and created challenges not foreseen by the crafters of the 1911 workers’ compensation acts in New Jersey. 

Jon L. Gelman

Particularly compelling are issues surrounding how the benefits system can adapt to meet the effort of maintaining a healthier workplace and avoid the consequences caused by this communicable illness.

Business and schools have been forced to close or curtail operations. Illness and fatalities in the workplace have escalated. Workforces have been diminished, and bystanders and co-workers have been infected.

A focus of attention is that ill workers who become infected on the job report to work sick because a benefit structure is not in place to compensate them for lost time for illness, during early onset of the flu, when they are most contagious.

Most jurisdictions impose a waiting period before temporary workers’ compensation benefits are paid, but the system is out of sync with the flu. An ill worker must be out of work and under medical care for a certain period of time before temporary disability benefits are payable. New Jersey imposes a seven-day waiting period before benefits are paid.

Furthermore, most occupational disease claims are denied and then delayed by litigation.

The complications for the workforce have become very serious, especially in the health care industry, i.e. hospitals. Nurses, physicians and aides in the critical care setting such as the intensive care can not only cause their co-workers to become ill but create complications that lead to death. Those with compromised immune systems become endangered.

Such action places patients in a life-threatening situation. The created burden of this risk, and the complications generated, become enormous.

Infectious diseases, including tuberculosis and pneumonia, have long been considered compensable events in the workers’ compensation setting.

The earliest compensable pulmonary diseases appear to have been infectious in nature. Prior to the general amendments to the statute, the court attributed those illnesses to "accidental events." 

In Richter v. E.I. Du Pont De Nemours & Co. (1937), an employee who worked in a cold, damp, unheated garage/storage building for three hours on a January afternoon while suffering from a head cold contracted pneumonia, from which he died approximately 10 days later. Compensation benefits were awarded to his widow based upon the reasoning that the exposure suffered by the decedent was greater than that which persons generally in his locality were exposed.

The three-hour “exposure” in this case was still interpreted as an accident rather than as an occupational exposure as we now understand the terminology.

The compensation system nationally has been slow to react to the emerging threat of infectious diseases. Whether it be influenza, Ebola, tuberculosis, smallpox, antibiotic-resistant infection, Zika or something else, the workers’ compensation system needs to adapt to these emerging developments.

An initial issue to focus on would be the expeditious payment of temporary disability benefits immediately after the disease is diagnosed objectively, while working in occupational environments where contagion exists, i.e. confirmed by quick laboratory testing such as a throat swab. Then invoke workers' compensation jurisdiction and commence temporary disability payments at once. This would require that the ill worker cease work immediately.

The workers’ compensation system must adapt to changes in the workplace and medicine. Emerging infectious disease is but one example of where an immediate change is necessary to meet the legislative intent of this social insurance system. Such changes will benefit all stakeholders and the public health.

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.