When Nebraska reported its first presumptive case of Covid-19 in March of 2020, Nebraska’s workforce responded in a way that virtually no one could anticipate. Hundreds of employers temporarily closed their doors while those defined as “essential workers” continued to try and work in a pandemic unlike any other that the United States had seen within the last century. As cases of Covid-19 continued to increase among Nebraskans, many of us in the workers’ compensation circle questioned whether an employee contracting Covid would be a compensable disease under the Nebraska Workers’ Compensation Act. The answer to that question would be speculated about by lawyers for years. However, in December of 2022, Judge Fridrich issued what is believed to be the first case analyzing whether Covid-19 is a compensable disease pursuant to the Act. The answer, according to Judge Fridrich, is no.
Christine Thiele (hereinafter the “claimant”) filed a Petition in the Nebraska Workers’ Compensation Court alleging she contracted Covid-19 while working as a nurse liaison at a critical care recovery hospital in Omaha. Her Petition specifically alleged that Covid-19 was an occupational disease caused by her work and that she was entitled to benefits as a result of that exposure. While not specifically noted in the Order, it appears that claimant suffered rather significant disability as a consequence of getting Covid-19. In response to her Petition, the employer filed a Motion for Summary Judgment and argued that Covid-19 is not a compensable occupational disease as that term is defined by Nebraska law.
By way of quick background, in Nebraska, a work “injury” includes occupational diseases. The Act defines an occupational disease as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” § 48–151(3). Stated another way, there are essentially two factors that must exist before the Court will classify a disease as a compensable occupational disease. First, the disease must be “due to causes and conditions which are characteristic of and peculiar to a particular occupation.” Second, it cannot be a disease that is an “ordinary diseases of life to which the general public is exposed.”
Historically, occupational disease cases are relatively few and far between. However, a few cases need to be discussed in order to understand the framework applied in an occupational disease case. In Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 78 112 N.W.2d 531, 535 (1961), the Supreme Court of Nebraska held that emphysema (a lung condition) caused by exposure to wheat dust in a grain elevator was an occupational disease. In holding as such, the Nebraska Supreme Court recognized that the wheat dust was both peculiar to and characteristic of the operations of a grain elevator. Four years later, the Nebraska Supreme Court similarly held that contact dermatitis (a superficial inflammation) caused by exposure to cleaning chemicals, was characteristic of and peculiar to the occupation of dishwashing (the job the employee in that case held). Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 792, 795, 135 N.W.2d 470, 472 (1965). Nearly twenty years later, a third occupational case was before the Nebraska Supreme Court. In Osteen v. A.C. & S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981), an employee developed mesothelioma as a result of his exposure to asbestos. In affirming that mesothelioma caused by exposure to asbestos was an occupational disease, the Nebraska Supreme Court highlighted that the incidence of mesothelioma is almost negligible in the population at large.
In his 2022 Covid-19 decision, Judge Fridrich discussed the three aforementioned cases and noted that all three involved employee contacts with a foreign substance over multiple years. While he recognized that mesothelioma, emphysema and contact dermatitis can be contracted outside of work, he also noted that they are commonly associated with some sort of substance unique to the injured worker’s occupation. Judge Fridrich noted the same was not true of Covid-19.
Unlike a substance like asbestos, Judge Fridrich noted that Covid-19 is not caused by a tangible substance but instead is from the same family of viruses that causes the common cold. He wrote, “While COVID-19 is more prevalent in the health care field, it is not characteristic or peculiar to healthcare workers. It is characteristic and peculiar to people, and people are found in every workplace.” (emphasis added). To her credit, the employee pointed out that Covid-19 was originally believed to be more prevalent in health care facilities at the beginning of the pandemic which is when she contracted the disease. However, Judge Fridrich fairly responded to that argument and noted that even though it may have been more prevalent to health care workers in the start of the pandemic, it was still something everyone was susceptible of contracting and it has always been spread by people. In light of the same, Judge Fridrich held that Covid-19 was not “characteristic of and peculiar to” claimant’s employment as a nurse liaison.
Even though Judge Fridrich arguably did not need to address whether Covid-19 is an ordinary disease of life in light of his finding that it was not characteristic of and peculiar to the claimant’s particular employment, he did address the same in his decision. To aid in that discussion, Judge Fridrich first discussed a Texas claim involving an employee that caught a cold at work. Amann v. Republic Underwriters, 100 S.W.2d 778, 780 (1936). In that case, the Texas Court discussed that a cold is a result of germs which attack the body. Because germs are in the “atmosphere surrounding us, at all times,” the Texas Court noted that the common cold is not an occupational disease. Judge Fridrich noted the similarities between Covid-19 and the common flu – mainly that both are a virus that “can be found literally anywhere…” Relying on the same, as well as Defendant’s expert that concluded that Covid-19 is an ordinary disease of life, Judge Fridrich similarly concluded that Covid-19 is an ordinary disease of life and therefore not a compensable occupational disease.
The purpose of including occupational diseases as a compensable “injury” in Nebraska is to recognize that some employments involve a unique hazard that manifests itself as a disease rather than an acute injury like a broken bone. However, the Nebraska Workers’ Compensation Act has never been intended to be a form of health insurance, thus why ordinary diseases of life are not compensable. Given the sheer number of people who have been impacted by Covid-19, and the plethora of places that it can be contracted, Judge Fridrich’s decision is certainly in in line with not only Nebraska law on occupational diseases, but it is also consistent with the medical science which is known about Covid-19. The decision in Theile v. Select Medical Corporation, 2022 WL 17915481 (Neb. Work. Comp. Ct.) is currently being appealed to the Nebraska Court of Appeals and a decision is not anticipated for quite some time. Whether the Court of Appeals will agree with Judge Fridrich is yet to be seen, but there is certainly good reason to affirm the decision.
If you have questions about a case involving Covid or an occupational disease, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.