2. “In the course of…" is a function of the timing and location. Did the injury occur:
- During the worker's operations/activities for the employer – regardless of the time of day; and
- At a location the employer could have expected the employee to be? If so, then the injury was in the course of employment; and
3. “Within the scope of employment." This test more specifically defines the first two tests by: 1) analyzing the motivations of the worker; 2) analyzing the employer's direction and control over the actions of the worker; and 3) analyzing the employer's ability to foresee the activities of the worker. If the employee was acting under the employer's presumed direction, control, knowledge and expectations, then the injury will likely be considered “occupational."
These three tests apply to occupational injuries. However, if the employee suffers injury or dies due to an illness, one additional test must be satisfied before the illness or disease qualifies as occupational and is considered compensable under workers' compensation:
- The illness or disease must arise out of or be caused by conditions “peculiar" to the work.
Qualifying as “occupational" is only the first hurdle, for an illness to be considered occupational, the more important hurdle is whether the illness or disease is “peculiar" to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers' compensation. An illness or disease is “peculiar" to the work when it is found or limited almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee's working conditions (the surroundings).
For example, black lung disease in the coal mining industry is a disease that is peculiar to the work of a miner. Coal miners are subject to prolonged exposure to higher-than-normal concentrations of coal dust leading to black lung disease. This makes the disease peculiar to the coal mining industry.
Another example of an exposure “peculiar" to the work is a healthcare worker contracting an infectious disease such as HIV or hepatitis as a result of contact with infected blood. The worker's unusual or “peculiar" exposure to such diseases results in an illness that is occupational and compensable (primarily because the general public is not subject to the same level of exposure on a regular basis).
Qualifying an illness or disease as occupational and, more importantly, peculiar to the work (and thus compensable) may ultimately require industrial commission or court intervention to sort medical opinion from legal facts. No one “test" is available to declare an illness or disease compensable or non-compensable; each case is judged on its own merits and surrounding circumstances.
Concluding that an illness is occupational, peculiar to the work and ultimately compensable is not necessarily based on the disease or illness in question but on the facts surrounding the worker's illness. Factors investigated and considered by medical professionals and the court include:
- The timing of the symptoms in relation to work: Do symptoms worsen at work and improve following prolonged absence from work (in the evening and on weekends);
- Whether co-workers show or have experienced similar symptoms;
- The commonality of such illness to workers in that particular industry;
- An employee's predisposition to the illness (an allergy or other medical issue); and
- The worker's personal habits and medical history. Patients in poor medical condition (overweight, smokers, unrelated heart disease, etc.) and/or with poor family medical histories may be more likely to contract a disease or illness than others in similar circumstances. Bad habits and poor medical history (and heredity) cloud the relationship between the occupation and the illness. For example, smokers may be ill-equipped to fight off the effects of illnesses to which others may have no problem being exposed.
Only if it is proven that the employee has an increased risk of contracting an illness or disease due to the peculiarity of his or her job might such illness or disease be considered occupational and thus compensable. Remember, compensability as an occupational illness requires something about the job that increases the risk of exposure and illness (including death).
Which Policy Responds to Qualifying Occupation Illnesses and Diseases?
Employees may be exposed to the harmful condition for many years before the illness manifests. It is also possible that the employee doesn't contract the disease until years after the exposure ends. The workers' compensation policy specifically states that the policy in effect at the employee's last exposure responds to the illness even if the employee is working for another employer or even retired at the time the illness or disease manifests itself.
Last updated: February 12, 2021