Are Zika Claims Compensable in Texas?
Imagine that you have contracted Zika, the mosquito-borne disease that can be passed on to children as microcephaly or even to sexual partners. Is the disease compensable?
A recent Dallas Observer article examines the question whether the child of a compensably injured employee can recover under comp, and – quite appropriately – suggests that such a recovery is unlikely. The article assumes as a part of its premise, however, that the injured employee’s claim would be compensable:
Suppose a woman is pregnant and she contracts Zika in a workplace environment,” [California personal injury attorney, Robert] Ryan says. “Now, she would typically be covered under workers’ compensation because it would be considered an industrial injury or illness . . ..
But is the Observer’s assumption truly correct? Would the contraction of Zika from an alleged workplace mosquito bite actually be compensable? We think that this would be an unlikely outcome under the Texas workers’ compensation act.
For there to be a compensable claim, the Texas act requires that the claimant prove 1) that the injury occurred while the employee was furthering the business of the employer; and 2) that the injury originated in a risk or hazard of the employment.
To prove that a Zika injury occurred while the employee was furthering the business of the employer, the claimant would be required to prove not only that the bite occurred while he was furthering the business of the employer but also that the mosquito that bit the claimant while at work was infected with the Zika virus. This stringent requirement was recognized by the Texas Supreme Court in, Schaefer v. Texas Emp. Ins. Ass’n, 612 S.W.2d 199, 203 (Tex. 1980).
In that case, Schaefer was employed as a backhoe operator and a plumber. He worked primarily in rural areas of Nueces County. Routinely, he was required to crawl and tunnel underneath houses to repair or install plumbing. At least once a month during the course of his employment, he worked in soil contaminated with the feces of birds, other fowl, sheep, goats, dogs, cats, and humans. In addition to these conditions, the owner of the plumbing shop where he worked raised birds commercially in a shed attached to the back of the shop to which Schaefer was exposed.
Schaefer filed a claim for workers’ compensation benefits after he was diagnosed with atypical tuberculosis, a bacterial disease. Incidence of this disease is extremely rare, approximately three cases per million population annually. Certain groups, however, are more susceptible to the bacteria causing the disease than others. For instance, persons engaged in dusty occupations, such as coal miners and sandblasters, have been shown more likely to contract the disease because their immune mechanisms are weakened by inhalation of silicon dioxide. There is also a higher incidence of disease among farmers who work in dirty environments, especially those contaminated by fowl droppings, for reason of their increased exposure to the organism.
The case made its way to the Texas Supreme Court where the court found that there was a “crucial deficiency” in Schaefer’s proof of causation. Specifically, the court concluded that “the evidence fails to establish that any bacteria was present in the soil where Schaefer worked.” Thus, Schaefer stands for the proposition that an injury from exposure to bacteria or viruses has not been established until the claimant proves that the actual transmission of the bacteria or virus occurred at work.
The court recognized that this requirement may be challenging to prove. However, the court wrote: “The fact that proof of causation is difficult does not provide a plaintiff with an excuse to avoid introducing some evidence of causation.”
In addition, even if a claimant could prove that the Zika virus was transmitted to the employee while he was in the course of employment, he must also prove that the injury arose from (or originated in) a risk or hazard of the employment before the illness would be compensable. This element was examined in Texas Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.—San Antonio 1998, no pet.).
In that case, Simon was working as a mechanic in a repair shop when he suffered a sting from a bee that had found its way into his Coke can. Simon, who had once been a bee keeper and had suffered many stings without incident, had an immediate and severe allergic reaction to this sting and was taken to the hospital, where he died shortly after arrival. His widow filed a claim for workers’ compensation death benefits. The Division found the claim to be compensable and the carrier filed suit for judicial review. The trial court granted the claimant’s Motion for Summary Judgment and denied the carrier’s motion.
On appeal, the carrier argued that the appellate court should reverse the trial court and render judgment that the claim was not compensable. The court of appeals did reverse the judgment, but the court only remanded the case to the trial court because the court reasoned that a fact question had been presented on the question of compensability.
What the parties now disagree about is whether the injury arose from Simon’s employment.
The question under this prong of liability is whether the injury would have occurred if the “conditions and obligations of employment had not placed the claimant in harm’s way.” We believe fact issues remain on causation, and therefore Judge Canales was correct to deny TWCIF’s summary judgment motion.
In its analysis, the court found that a fact question existed over whether the injury originated in the employment, writing:
The Appeals Panel decision demonstrates that evidence of a relationship between the injury and employment did exist and was offered. According to that opinion, there was testimony that workers threw their garbage, including soda cans, into a trash can near the repair shop. In addition, a Damco employee testified before the Panel that bees would sometimes gather near the area. See Williams, 378 S.W.2d at 113 (wasps commonly flew around place of employment and deceased was stung while at work, so causal relationship existed between the two).
Simon requires that an injury resulting from a mosquito bite be shown to have occurred because the work placed the employee in a place of greater risk than the general public before the consequences of the bite will be considered compensable.
In conclusion, not only would Texas be unlikely to recognize a workers’ compensation carrier’s liability for the injuries sustained by a child or sexual partner of an employee who contracted Zika while in the course and scope of employment, the carrier’s liability for the virus itself presents significant challenges of proof for an injured worker to overcome.
FOLIO
