Summary: Over the summer a local mosquito-borne transmission of the Zika virus was reported in the Southern United States. Recently the first workers compensation claims associated with the Zika virus have arisen in Miami-Dade County in Florida. Soon these claims will be brought to court in order to determine the burden of proof and with whom the burden of proof lies. In the meantime city employees, including police officers, have found that they will not be granted workers compensation coverage after contracting the Zika virus on the job, because it is nearly impossible to prove that the virus was contracted while working.

Topics Covered:
Introduction
Workers Compensation Overview
Overseas Workers Compensation Claims
Foreign Voluntary Workers Compensation Coverage (FVWC)
Arising Issues
Relevant Caselaw
Conclusion

Introduction

The Zika virus, which caused the Zika epidemic in 2015-2016, is responsible for over 4,000 cases in the United States. Zika is mostly spread through the infected bite of an Aedes species mosquito. Most of the cases that have been treated in the United States occurred overseas, but local mosquito-borne virus transmission has recently been reported in the Southern United States. Symptoms of Zika include fever, rash, joint pain, and bloodshot eyes. Symptoms develop within a few days of contraction and last for up to a few weeks. Of serious concern is the possible link between Zika and microcephaly. It is suspected that if a woman contracts Zika during pregnancy, the virus can be passed from the mother to her fetus and can cause serious birth defects including microcephaly. No vaccine or medicine has been discovered for the Zika virus at this time. Now that the virus is present in the United States, there is potential for contracting the virus while working, which could give rise to workers compensation claims.

Workers Compensation Overview

Workers compensation is insurance that protects workers by providing wage replacement and medical benefits to employees who are injured in the course of employment. In exchange for the benefits of wage replacement and medical payments, the employee relinquishes her right to sue the employer for negligence. In order to receive workers compensation benefits a worker has to show that the injury, illness, or death occurred on accident, arising out of employment, and in the course of employment. Arising out of employment means that there has to be a causal connection between the work being performed and the injury sustained. This means that the employee would have the burden of proving the injury was caused by an increased exposure to the risk due to the employment conditions. In the course of employment means that the injury must take place in the employment period of time, in a location where it is reasonable for the employee to be, and while the employee is fulfilling work duties. In general it is required that adequate medical evidence be provided in order to show that the elements are proven.

Overseas Workers Compensation Claims

If an employee contracts Zika in the course of employment, workers compensation insurance would probably provide coverage for costs related to the treatment of the illness. Since Zika has been prominent in South and Central America, the occurrence for claims for workers compensation often occur overseas. An employer who must send employees to countries with active Zika risks should be aware of the potential risk and should administer education on the Zika virus and transmission to employees traveling to those areas. Employees should also be educated on infection prevention and the potential risks the virus would pose to spouses and other family members.

Foreign Voluntary Workers Compensation Coverage (FVWC)

Before Zika made its way to the Southern United States, all cases in the United States were contracted overseas. If a person contracted Zika while overseas for job purposes, their workers compensation from home might not cover all of their treatment and travel expenses if plans had to be changed due to the illness. Workers that are required to travel outside of the United States may also face health risks that they may not have to face in the United States.

Foreign Voluntary Workers Compensation Coverage is coverage that is necessary if the insured maintains a physical location in another country, or employs workers that are located outside of the United States, and can provide helpful coverage for employers who require their workers to travel overseas on a regular basis. Insurance of this type can be necessary in those cases because coverage provided for workers compensation in the US may be rather limited, and may not cover some of the sicknesses that could be encountered in foreign countries. Endemic diseases are generally excluded in workers compensation policies in the United States, but such diseases would be covered by a FVWC policy. Until cases of Zika were found to be transmitted within the United States, FVWC would have been a way for an employee to recover workers compensation benefits after contracting the virus while working overseas.

Arising Issues

The CDC announced this summer that Zika has been spreading in the continental U.S., specifically in Florida. As the number of Zika cases continues to rise in Miami, Florida, two local police officers are seeking restitution after they contracted Zika while on the job and were either denied coverage, or granted coverage just to later have that coverage revoked. Illnesses like the Zika virus, spread by a specific species of infected mosquito, make proving that the illness was contracted on the job very difficult. In fact, Florida officials have stated that officers must provide proof that they contracted the virus while on duty and “identify the specific infected mosquito” that caused their illness, and refuse to pay the medical bills of either claimant. Although the city claims that it is impossible to prove that either officer caught Zika while on duty, pools of Zika infected mosquitos have been found in Florida, and are trapped near the Miami Beach area. Miami-Dade County Mosquito Control has designated a Zika transmission zone which includes a large portion of Miami Beach.

Different species of mosquitos have different flight ranges. Generally a mosquito can travel around a mile per hour, and have a flight range of one to three miles. If a person lives and socializes in an area that is not considered a Zika transmission zone and lies miles away from a transmission zone, and that same person works in or near a known transmission zone and they contract the Zika virus, it is only logical to assume that they contracted the disease from a mosquito they encountered while working. Identifying the individual mosquito is not necessary. Asking an individual to provide the specific infected mosquito who bit them and caused the illness seems unreasonable when the symptoms of Zika do not surface for days after the bite. Since the complainants are first responding officers, and face a risk of exposure that is exponential in comparison to that of the rest of the population of Miami, a representative of the insurance regulators said the workers compensation insurer would be responsible for investigating the Zika claims from first responders.

Relevant Caselaw

In Union Pacific Railroad Company v. Nami, a railroad worker contracted West Nile virus while working outdoors in Texas. The work was being conducted in the “mosquito capital of the world” and the flooding associated with Hurricane Ike increased the amount of standing water, and therefore mosquito breeding grounds, located in the area. The employee argued that the employer failed to provide a safe workplace. The Railroad Company issued bulletins and warnings about the nature of the virus, the fact that it was spread by mosquito, the risks and symptoms of infection, and warnings to use mosquito repellent. In this case Nami was the only worker to contract the disease. The court decided that if the employer did nothing to attract the mosquitos and that the ferae naturae doctrine applied. The ferae naturae doctrine means simply that a property owner does not owe a duty to protect an invitee from wild animals indigenous to the area unless he or she possesses or controls the animal, attracts the animal to the property, or knows of an unreasonable risk and does not warn the invitee of the risk. Because the court decided that ferae naturae applied, the railroad company was found not to be liable for the employee contracting the West Nile virus. The court also decided that although mosquito repellant and long-sleeved shirts might have reduced the number of bites, neither would have prevented infection, and the company was not obligated to provide either.

The Miami case varies on many of the facts that arise in the Union Pacific Railroad case. In Miami, there were two officers that were infected, and there was no evidence of warnings, or trainings provided to the employees. Two officers were infected with the virus in the same general time period and area, and the city did not own the property on which the officers were infected. Because of these differences in facts, among others not mentioned, this case could be decided differently than the Union Pacific Railroad Company case. Union Pac. R.R. Co. v. Nami, No. 14-0901, 2016 WL 3536842 (Tex. June 24, 2016), reh'g denied (Sept. 23, 2016).

Conclusion

Soon these benefit battles will enter the courtrooms for litigation, and it will be legally decided with whom the burden of proof lies, and the extent of that burden of proof. Proving that an individual was not bitten by the infected mosquito while playing catch with their son, grilling out, or doing gardening is a high burden of proof, while requiring that the worker provide the specific mosquito that caused the contraction of the virus seems egregious. If it can be proven that a worker would not be exposed to the risk except for on the job, say they live in an area where there are no infected mosquitos, and only enter zones with infected mosquitos when going to work, the burden of proof should be satisfied. Workers compensation insurers should take these incidents in Florida as a sign that this is a problem that will arise again in the next Mosquito season, and perhaps work to prevent contraction of the virus in their insured workers so future litigation can be avoided.