A Suspicious Package can Raise More Than Fears of Anthrax.
Tennessee Bar Journal
February, 2002
Article
Cover Story
*12 A PACKAGE OF PROBLEMS
A Suspicious Package can Raise More Than Fears of Anthrax. It Could Also
Present a Potential Liability for an Employer.
James K. Simms IV [FNa1]
Copyright 2002 by Tennessee Bar Association; James K. Simms IV
*13 At last count, since the Sept. 11 attacks on the World Trade Center and the Pentagon, five people have died and more than a dozen have taken ill as a result of anthrax exposure. For every episode where there has been anthrax exposure, there have been countless hoaxes, instances where the "mysterious white powder" in the envelope was discovered to be something other than anthrax. The resulting "mysterious package" hysteria has left some employers and insurers wondering how best to handle these situations and what, if any, liability they may have under Tennessee's workers' compensation act. Is the employer responsible for the costs of testing that reveals that the employee was the victim of a hoax?
While this is uncharted territory in *14 Tennessee [FN1], it is not without its analogies that are instructive on this issue. Some might try to draw a comparison to the asbestos cases, particularly as to the narrow issue of whether an employer should be required to pay for prophylactic testing and treatment.
In Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91 (Tenn. 1994), the Tennessee Supreme Court addressed whether an employee who suffered from an asbestos-related disease was entitled to medical benefits for periodic evaluation of his pulmonary condition and any necessary subsequent treatment related to his disease. The court found that "preventative medicine in the form of examinations designed to lead to early discovery and thus enabling early treatment, clearly falls within the term 'reasonably required' medical care as contemplated in [Tenn. Code Ann. 50-6-204(b)]" [FN2] and the employee was therefore "entitled to medical benefits, to be furnished by the employer, for the periodic evaluation of his pulmonary condition and any necessary subsequent treatment related to his occupational disease." Ingram, 876 S.W.2d at 93. The court was satisfied that sections 50-6-204(b) and 303(a)(2) [FN3] "contemplate that an employee suffering from asbestos exposure in any of its manifestations is entitled to reimbursement for pre- disability medical expenses." Id. at 94. The court noted that Tennessee law does not "impose a requirement that the employee be disabled in order to qualify for medical treatment or benefits." Id. [FN4]
What distinguishes the anthrax cases from the asbestos cases is that the anthrax exposure is the result of an intentional act of terror by an outside party. Therefore, perhaps the cases where there is actual anthrax exposure are more analogous to the assault cases and the rules applied in those cases similarly should apply to anthrax cases. Whether an assault upon an employee arises out of the scope of employment "can best be divided into three general classifications: (1) assaults with an 'inherent connection' to employment such as disputes over performance, pay or termination; (2) assaults stemming from 'inherently private' disputes imported into the employment setting from the claimant's domestic or private life and not exacerbated by the employment; and (3) assaults resulting from a 'neutral force' such as random assaults on employees by individuals outside the employment relationship." Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn. 1998). Assaults with an inherent connection to employment are compensable. See e.g., W.S. Dickey Mfg. Co. v. Moore, 347 S.W.2d 493 (Tenn. 1961). Assaults stemming from inherently private disputes imported into the employment setting from the claimant's domestic or private life and not exacerbated by the employment are not compensable. See e.g., *15Brimhall v. Home Ins. Co., 694 S.W.2d 931 (Tenn. 1985). Assaults resulting from a 'neutral force' such as random assaults "may or may not be compensable depending on the facts and circumstances of the employment." Woods, 967 S.W.2d at 771; see Beck v. State, 779 S.W.2d 367 (Tenn. 1989) (random assault from third party compensable where the employment necessarily exposed the employee to public risks). Most of the cases of actual anthrax exposure ostensibly would fall into the third classification. That is to say, where an employee opens a piece of mail or a package containing a mysterious substance that in the end turns out to be anthrax, or is otherwise exposed to anthrax as a result of a terrorist act by one outside of the employment relationship, would not be compensable under the workers' compensation act. Every case of actual anthrax exposure would need to be analyzed according to its own facts and circumstances and there are some scenarios imaginable where anthrax exposure perhaps would be compensable under the workers' compensation act.
The anthrax hoax cases are distinguishable from the asbestos cases such as Ingram, supra, insofar as where there is an anthrax hoax, there is no exposure and no manifestation of disease, i.e., there has been no injury as that term is defined under the workers' compensation act. [FN5] There are cases where the issue was whether an employee suffers a compensable injury when he or she is exposed to potentially fatal contagious disease but has not yet contracted the disease. For example, in Doe v. City of Stamford, 699 A.2d 52 (Conn. 1997) a police officer was exposed to HIV when dealing with a criminal suspect, and was subsequently exposed to tuberculosis when dealing with a criminal suspect. The officer was tested, but did not test positive for either disease, but underwent follow-up testing and consultation. The court concluded that these exposures were compensable injuries under Connecticut's workers' *17 compensation act. However, it must be noted that in this case "the claimant concededly ha[d] sustained actual exposures to life threatening infectious diseases ..." Id. at 54. The court concluded that under workers' compensation law, "the injury suffered by the claimant is the exposure to potentially fatal contagious diseases. That injury is no less real or cognizable because it is not attended by puncture or abrasion." Id. at 56.
But without exposure the employer cannot be liable. According to a plain reading of Tenn. Code Ann. 50-6-301 [FN6] as well as cases from other jurisdictions analogous to such a situation, an employer should not be liable for testing where there was no exposure to anthrax. For example, in Williams v. State, 2 P.3d 543 (Wyo. 2000) a police officer came into contact with an individual's blood while attempting to break up a fight. The officer was reasonably concerned about hepatitis, AIDS, and other diseases spread through contact with body fluids of infected persons. In Williams, the Wyoming Supreme Court refused to require the employer to pay for testing. The court reached this conclusion because exposure to potential illness or communicable disease did not meet the statutory definition of injury.
Compare Williams with K-Mart v. Evenson, 1 P.3d 2.77 (Or. Ct. App. 2000). In Evenson, the claimant, a store manager, assisted a man in a wheelchair who had defecated and had feces and blood on his hands. The store manager had sores on her hands. The man later told the store manager that he was HIV-positive. The store manager went to the emergency room seeking medical treatment, which included testing and prophylactic treatment for HIV and hepatitis A and B. K-Mart paid the employee's medical bills on a "diagnostic basis," but denied the workers' compensation claim for lack of proof that she had contracted disease or suffered any actual symptoms. The Oregon Court of Appeals said K-Mart's position missed the issue, which should be whether the harm, damage or hurt is sufficient to require medical services or results in disability or death. That is to say, the controlling issue is not whether the claimant sought medical treatment, but whether such medical treatment was required. In Evenson, the claimant clearly was exposed to potentially life- threatening pathogens and the medical testimony established that the prophylactic treatment was necessary under the circumstances. The court concluded that the claim, therefore, was compensable under *18 Oregon's workers' compensation act.
The outcomes in Williams and Evenson are not inconsistent. In Evenson, it was clearly proved that the blood to which the claimant had been exposed carried the HIV virus and she was, therefore, exposed to the virus. In contrast, there was no such proof in Williams. Therefore, unless the employee is actually exposed to anthrax there is no liability for treatment, testing, etc. While it is debatable whether an employer would be liable for an employee's actual anthrax exposure under the workers' compensation act, without such exposure there is no "injury" and no resulting liability of the employer to pay for prophylactic testing and treatment.
[FNa1]. James K. Simms IV is an associate at Cornelius & Collins LLP, in Nashville, and is a member of the firm's employer-employee relations practice group. He received his bachelor of arts degree, magna cum laude, from David Lipscomb University and his law degree from the University of Tennessee. While in law school, he was the Lead Student Materials Editor for the Tennessee Law Review. The author would like to thank Blakeley D. Matthews, a partner at Cornelius & Collins, for the encouragement to pursue this as an article for publication. Simms can be reached at jksimms@cornelius-collins.com
[FN1]. There are cases in other jurisdictions that have held that contracting anthrax was compensable under workers' compensation laws. See e.g., Chicago Raw Hide Mfg. Co. v. Industrial Comm'n, 126 N.E. 616 (Ill. 1920) (compensation awarded for anthrax transmitted through a pimple on the neck); Hiers v. John A. Hull & Co., 164 N.Y.S. 767 (N.Y. App. Div. 1917) (compensation awarded for anthrax transmitted through a scratch on the hand).
[FN2]. Tenn. Code Ann. 50-6-204(b) provides that "[w]here the nature of the injury or occupational disease, as defined in 50-6-102, is such that it does not disable the employee but reasonably requires medical, surgical [or] psychological ... treatment or care, medicine, surgery ... and psychological treatment, medicine, medical and surgical supplies ... and other apparatus shall be furnished by the employer."
[FN3]. Tenn. Code Ann. 50-6-303(a)(2) provides as follows: "An employee who has an occupational disease shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident ..."
[FN4]. It should be noted that the Tennessee Supreme Court has stated that if the employee expects the employer to pay for them, the employee must "do no less than to consult his employer before incurring expenses called for by [50- 6-204]." Dorris v. INA Ins. Co., 764 S.W.2d 538, 541 (Tenn. 1989).
[FN5]. Tenn. Code Ann. 50-6-102(12) defines "injury" and "personal injury" as "an injury by accident arising out of and in the course of employment which causes either disablement or death of the employee and shall include occupational diseases arising out of and in the course of employment which cause either disablement or death of the employee."
[FN6]. Tenn. Code Ann. 50-6-301 defines "occupational diseases" as "all diseases arising out of and in the course of employment." The statute places six prerequisites to something being deemed an occupational disease and they are as follows:
(1) It can be determined to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
(2) It can be fairly traced to the employment as a proximate cause;
(3) It has not originated from a hazard to which workers would have been equally exposed outside of the employment;
(4) It is incidental to the character of the employment and not independent of the relation of employer and employee;
(5) It originated from a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected prior to its contraction; and
(6) There is a direct causal connection between the conditions under which the work is performed and the occupational disease. Diseases of the heart, lung, and hypertension arising out of and in the course of any type of employment shall be deemed to be an occupational disease.
Certifications of Specialization are available to Tennessee lawyers in all areas of practice relating to or included in the areas of Business, Employer-Employee Relations, Entertainment, Intellectual Property, Health Care, Personal Injury, Tort, Insurance, Product Liability, Wills, Estates, Trusts and Probate Law. Listing of related or included practice areas herein does not constitute or imply a representation of certification of specialization.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright © by Cornelius & Collins, LLP. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.
