State News : Alaska

We issued a newsletter on 9/27/21 describing our view that a two-part causation test applies in Alaska to occupational diseases cases such as COVID-19 claims. We discussed that to be compensable, an occupational disease 1) must be caused by the conditions of the employment, and 2) the employment must create a risk of contracting the disease that is greater than that which generally prevails in employment and living conditions. Under this test, if work presents the same risk of contracting a disease as generally exists in employment and living conditions (e.g., co-worker spread of a common contagious disease), the disease is not an “occupational disease” for benefit purposes even if acquired at work.

Because this test was adopted in Alaska Supreme Court cases issued in 1966 and 1985 and has not been significantly discussed since then, it was unclear if the Board would follow that case law or strike out in a different direction. However, on January 13, 2023, the Board issued a decision adopting the above two-part legal test, denying compensability of a COVID-19 claim by an employee of Chugach Electric Company who alleged she contracted it from a co-worker. See, Cheryl Rapp v Chugach Electric Company, AWCB No 23-0004 (January 13, 2023).

In that case, Ms. Rapp and a co-worker were employed as customer service representatives and worked in proximity to each other in office cubicles. They did their work by telephone and did not have physical contact with the public. The co-worker, Jenny, exhibited signs of illness and on 8/4/21 tested positive for COVID. Ms. Rapp began to experience symptoms of COVID on 8/13/21, nine days after her last exposure to Jenny. She tested negative for COVID that day. Symptoms progressed and by 8/16, Ms. Rapp lost her sense of smell. She tested positive for COVID on 8/17. Ms. Rapp claimed about two weeks of TTD benefits and medical costs related to her bout of COVID. Medical care for her COVID infection was minimal, consisting of three visits to her regular doctor. Ms. Rapp has since fully recovered.

The Board denied the claim under both tests described above. Based on medical evidence from an IME physician, the Board concluded it was more probable than not that Ms. Rapp’s COVID was not contracted at work because of the delay between the last exposure and the onset of symptoms. The Board also found that even if contracted at work, the risk of contracting COVID was no greater for Ms. Rapp than the risk generally present in employment and living conditions at that time. That is, co-worker spread of diseases in that kind of employment setting is common, and there was nothing about Ms. Rapp’s work that elevated that risk above that experienced by workers in general.

We view this case as significant because of the Board’s recognition that the two-part causation test described above applies to communicable diseases such as COVID, especially the second test which requires that the risk of contracting the disease through work has to be “greater than that which generally prevails in employment and living conditions.” Under this test, a worker can contract a disease such as COVID from a co-worker, yet the disease would not be “occupational” for benefit purposes if the risk of contracting it was no greater than the risk that generally exists in similar employment settings and living conditions. Since COVID was a pandemic, the risk of contracting it generally existed in both employment settings and in living conditions.

Bear in mind that each case is different and must be evaluated based on the facts presented. COVID can be a compensable occupational disease for some workers and not others. Evaluating the risk in each employment setting will be important in order to determine the best course of action in a particular case.