State News : Alaska

Alaska Statute 23.30.395(24) includes in its definition of an injury, “an occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury.” It is well established that a virus such as COVID-19, or Coronavirus, is an illness that if contracted in the workplace, would entitle the affected worker to workers’ compensation benefits that may arise from the illness.

The Alaska Supreme Court, in *Delaney v. Alaska Airlines, *held that in order to succeed in a claim for an “occupational disease” or illness, an employee must show that: 1) the disease was caused by the conditions of their employment; and 2) as a result of the conditions of the employment, the risk of contracting the disease is greater than that which generally prevails in employment and living conditions. In a claim for Coronavirus, the Board would evaluate this two-prong test at the first step of the compensability analysis. Both elements must be satisfied to create the “preliminary link” between employment and the claimed workplace disease. The Alaska Supreme Court described the rationale for requiring a “preliminary link” before finding a worker is entitled to workers’ compensation benefits as, “… the idea is to rule out cases in which claimant can show neither that the injury occurred in the course of employment nor that it arose out of it, as where he contracted the disease but has no evidence to show where he got it. In claims that are ‘based upon highly technical medical considerations,’ medical evidence will likely be necessary for the employee to meet their burden of showing a ‘preliminary link.’”

In reviewing claims for Coronavirus, the Board would likely find that the disease is a “highly technical medical consideration” and require some medical evidence that the worker has contracted the virus. Once medical evidence establishes that a person has the virus, they will also need to show that they contracted it through the conditions of their employment. The Alaska Supreme Court has held that this requirement is intended to bar claims where an employee “has no evidence” that they contracted an illness out of the course of their employment. Employees seeking benefits for Coronavirus would likely need to prevail on one of the two theories of compensability for occupational disease. If the employee can show evidence of direct contact with a person positive for Coronavirus in the workplace, the presumption of compensability will have attached. Or, alternatively, if the employee can show that the condition of their employment exposed them to a greater risk of contracting the disease than the general public, there is also a good chance that the Board would find a preliminary link between the employment and the disability or need for treatment, and the employer and its carrier may be liable.

If the employee can establish the “preliminary link,” the employer must rebut the presumption, or pay benefits on the claim. In *Huit v. Ashwater Burns,* the Alaska Supreme Court held that rebutting the presumption requires the employer to either eliminate the possibility that the illness was related to the employment, or show that some other source outside of the employment caused the disease. It will be difficult to rebut the presumption in cases where the claimant can show direct contact with an infected person in the workplace. In such instances, benefits will likely need to be paid for any disability or need for treatment related to the Coronavirus. Employers and their insurers should have more factual grounds to dispute a claimant’s assertion that their workplace has placed them at a greater risk for contracting the virus than the general population. Factors to consider are how many people might the claimant come in close contact with on an average day, were there safety precautions such as hand sanitizing stations or masks, or other measures in the workplace to reduce the likelihood of spreading the disease was acquired through work exposure.

We recommend that Alaska employers and their insurers and adjusters be prepared for an influx of claims related to the Coronavirus. Actions are being taken at the local and State level to minimize the spread of the virus, and as a result of keeping people away from workplaces that have high risks for spreading the disease, it could result in a significant decrease in the potential burden on employers and their workers’ compensation carriers during this pandemic. Where possible, employers are encouraged to take steps in reducing the possibility of spreading the disease in the workplace. By doing so, it may improve chances of convincing the Board that the person’s employment did not place the claimant at greater risk of getting the disease than the general population.

Claims should be closely evaluated when they come in for whether they satisfy the first step of the presumption analysis and create the preliminary link between their employment and their illness. It will be during that first step of the presumption analysis that employers will have the best chance to successfully deny a claim, because once the presumption has been attached, it may be difficult to successfully rebut under the standard articulated by the Court in *Huit*. Please feel free to contact us if there is more information we can provide on this issue.

Below are informational links from the Division about how COVID-19 is effecting Board and Appeals Commission procedures and from the State of Alaska regarding its mandates which may affect medical care in workers’ compensation claims. Please note that these bulletins and mandates can change.

http://labor.state.ak.us/wc/bulletins/20-02.pdf

http://labor.state.ak.us/wc/bulletins/20-02.pdfhttp://labor.state.ak.us/wc/bulletins/20-03.pdf

http://labor.state.ak.us/WCcomm/documents/AWCAC_Procedureal_Order_No1.pdf

http://dhss.alaska.gov/News/Documents/press/2020/SOA_03192020_HealthMandate005_ElectiveMedProcedures.pdf 

We wish you all good health!

Meshke Paddock & Budzinski, P.C.