First Responders Denied Workers’ Compensation in Zika Case

First Responders Denied Workers’ Compensation in Zika Case

The City of Miami Beach says that Zika infection is not a job-related injury and therefore not covered by workers’ compensation.

Bobby Jenkins, the head of the police union, says that two officers who lived outside the Zika hot zones but were on patrol inside the zones were recently diagnosed with the disease. In one cases, the City revoked workers’ compensation after initially promising to cover the injury; in the other case, the claim was promptly denied. So, the infected officers had to use union health insurance, which did not pay for missed work or deductibles. The City eventually reneged somewhat and reinstated the sick days. However, City Manager Jimmy Morales still refused to extend workers’ compensation benefits, arguing that the infected officers “must show that the exposure/bite took place while on duty and identify the specific infected mosquito.” He added that the two officers had not submitted the proper medical records to support their claims. Furthermore, “there is no presumption that Zika is an occupational disease,” he concluded.

Mr. Jenkins said the dispute is less about the two individual employees and more about future cases. “If we set the precedent for Zika, no one is gonna take care of it,” he opined.

Occupational Diseases

According to the Bureau of Labor Statistics, about 150,000 workers a year suffer from an occupational disease. Most of these cases come from the mining, manufacturing, and healthcare sectors, so that probably means lots of lung disease, repetitive stress injuries, like back and joint pain, and infectious diseases.

Florida has a rather strict occupational disease law. According to 440.551 of the Florida Statutes, workers’ compensation only pays for occupational diseases if:

  • Nature of Employment: Specifically, the type of employment must involve “a particular hazard of such disease that distinguishes it from the usual run of occupations,” or “the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations.” Healthcare workers fall under the first part of the standard because contract infectious diseases while on the job, such illnesses are clearly related to the nature of their employment. The relationship is not quite as clear for first responders, but they probably fall under the second part because if they are summoned to a hot zone, the response in and of itself is part of their employment. As for proof, although there may be no presumption, the injured victim only has to show cause by a preponderance of the evidence, which means more likely than not.
  • Contracted During Employment: Workers’ compensation typically does not pay for injuries sustained during commutes or otherwise.
  • Major Cause: In Florida, victims do not need to establish but-for causation in this area (they would not have contracted the occupational disease “but for” their employment), but it is close. Additionally, any recovery is reduced according to the proportion of work and non-work fault.

Also according to the statute, an “occupational disease” is “only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.”

There is a rebuttable presumption that first responders and other public service workers are especially vulnerable to occupational disease, probably due to the nature of that work. So, these workers are generally entitled to benefits in these situations, even if a court would have denied a private sector worker.

Obtaining Compensation

The reporting requirements come into play here. Typically, victims must immediately report injuries to their supervisors. With occupational diseases, the best practice is to provide this notice after the initial diagnosis, whether or not the doctor says the condition is job-related. Typically, workers then have two years to file workers’ compensation claims.

The claim is often resolved in a matter of weeks, but the outcome nearly always goes against the injured worker, at least in part. After an initial denial, victims can appeal to an administrative law judge, who conducts a thorough review based on all the facts while also hearing arguments of counsel. Insurance companies know that victims have a much better chance at this stage, so claims often settle favorably between the initial review and the ALJ phase.

Compensation includes money for both lost wages and medical bills. If the claims do not settle right away, and they almost never do, attorneys typically send letters of protection to medical providers, so victims do not have to pay for either emergency care or physical rehabilitation until the case is finally resolved.

For prompt assistance with a workers’ compensation claim, contact Barnett, Lerner, Karsen & Frankel.