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Few H1N1 Workers’ Comp Claims Likely to Succeed, Experts Say

By Joanne Deschenaux  10/16/2009

While there may be some successful claims in the health care industry, it is unlikely that employers or insurers will be paying out significant sums in workers’ compensation benefits for claims related to the H1N1 (swine) flu, two workers’ compensation experts told SHRM Online.

For most employees, “It’s a stretch. Carriers have taken the position that you are in no greater risk at work than you are in other public places,” according to Margaret Spence, chief executive officer at Douglas Claims and Risk Consultants, Inc., a South Florida risk management firm. “I don’t see that most people in an office environment will have a successful claim,” said Spence, a member of the Society for Human Resource Management’s Employee Health, Safety and Security Special Expertise Panel. “The carrier will say that it is not occupational. Your occupation did not create a greater risk than the general public would have.”

While agreeing that few employees were likely to seek workers’ compensation benefits related to H1N1 flu, “I am anticipating that we will see some claims from clients in the health care industry,” said Steve Murdock, a workers’ compensation attorney with Inman & Fitzgibbons Ltd. in Chicago. People who, as part of their jobs, come in close contact with those suffering from the flu may be able to show the necessary workplace link, he explained. That would include doctors and nurses working in hospitals, as well as individuals providing patient care in nursing homes and rehabilitation facilities. These individuals could show that they are at a greater risk of contracting the disease than someone in the general population, he said.

Those who work at a medical facility, but not in patient care, such as an employee in a hospital cafeteria, would be unlikely to prevail on an H1N1 claim, Murdock added, noting that these individuals, who are generally not in direct contact with patients, would not be at greater risk of contracting the illness than anyone else.

In addition to health care workers, there is at least one other group that might be able to show that their jobs put them at greater risk than the general population for contracting H1N1 flu, Spence said—teachers, especially those who are in classrooms with young children. A kindergarten teacher, for example, is likely to be in closer physical contact with students than a high school teacher, she noted. Particularly in the event that a school was closed because so many students had the flu, a teacher at that school might be able to collect workers’ compensation benefits.

Benefits Might Not Come to Much

Another reason employers and insurers are unlikely to see many H1N1 comp claims is the relatively low value of these claims, both Spence and Murdock pointed out. It may not seem worthwhile for employees who believe that they were sickened at work to seek benefits because of the small amounts of money involved. “A sick employee would need to be off about seven days,” Spence said, “and most states have three to seven day waiting periods before compensation would even kick in. Employees would be on the upside of the flu before they would even be eligible for benefits. The main exposure for the employer would probably be medical treatment.”

“We are not hearing about significant treatment” for most cases of H1N1 flu, Murdock said. Few sufferers have to be hospitalized, he noted, with most receiving palliative care at home. “In most cases, there should be no permanent disability.”

Of course, complications are possible, Spence said. For example, if a nurse who has an underlying medical condition contracts H1N1 flu, and becomes seriously ill, “that could become an expensive claim.”

And how about the possibility of comp liability for vaccine-related complications for employers who have chosen to make the H1N1 vaccine available to their employees? As long as you don’t make it mandatory, there should be no liability, Murdock said. “If someone gets sick from the vaccine, it’s not work-related.”

Investigate All Claims

Both Spence and Murdock cautioned that, although it is unlikely that most employees will be able to collect comp benefits for H1N1 flu, employers still need to take seriously any complaints filed.

If an employee comes and says, “I contracted the flu at work,” the employer “wants to fill out a notice of injury, noting that the employee is alleging H1N1 exposure, and file a claim with the carrier. Let the carrier make the decision,” Spence suggested.

Even if you think these claims have no merit, you can’t just ignore them, Murdock similarly advised. “If someone files it, you have to look into it. Is there something about that person’s employment that would increase the risk? Anytime you get a claim, it needs to be investigated and defended, whenever possible,” he stressed.

The Occupational Safety and Health Administration (OSHA) will soon be issuing a compliance directive that will specify which industries are at higher risk of infection with the H1N1 virus, Spence noted. Employers should monitor the OSHA web site and be on the lookout for this directive. Those employees in the specified industries will be more likely to have compensable workers’ compensation claims, she concluded.

Joanne Deschenaux is SHRM’s senior legal editor.

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