Is a Legionnaire's Infection Compensable Under Workers' Compensation in New York?

An investigation into the outbreak of Legionnaire's disease in New York has determined one of the city's historic hotels was ground zero for the infection that has sickened 128 people so far. Testing of bacteria found in 25 patients matched the strain found in the hotel's cooling tower. People catch Legionnaire's disease by breathing in aerosolized Legionella bacteria.

Unfortunately, if you worked at or around the hotel in question and became ill by the disease, you may not be compensated by workers' compensation for your damage or losses.

Workers' Compensation and Occupational Disease

Physical injuries stemming from on-the-job accidents are the most common workers' compensation claims. However, the insurance also covers illnesses employees may contract from the workplace. The illness must meet specific requirements to qualify for compensation, though. According to the New York State Workers' Compensation Board, the illness must have arisen as a natural part of the job and be the result of the conditions the worker was exposed to.

For example, a coal miner who contracts black lung would be eligible for workers' compensation benefits because it is a disease caused by long-term exposure to coal dust, something that naturally occurs as an element of the job.

Unfortunately, this rule means that people who contracted Legionnaire's disease from being exposed to the Legionella spores pouring out of the cooling tower may not be covered even though that exposure was the result of them being in or around the hotel for hours at time. First, the exposure to the spores was not a natural outcome of working at the facility. It was an unexpected event that no one could have predicted happening.

Second, common life diseases such as colds and influenza are not eligible for workers' compensation because of how prevalent they are. Although many people heard about Legionnaire's disease for the first time since news of the outbreak in New York broke, the disease is actually somewhat common. The Center for Disease Control estimates 10,000 to 15,000 people are infected by it every year. However, that number may be as high as 100,000 cases per year because the disease is often mistaken for and misdiagnosed as pneumonia.

For these reasons, claims related to losses caused by or expenses resulting from a Legionnaire's infection may be rejected by the workers' compensation in New York.

A Silver Lining

In New York, workers' compensation is the exclusive remedy for workplace injuries.  This means employees cannot file personal injury lawsuits against their employers if the claims are paid for by workers' compensation, even if the injury was caused by employer negligence. The only exception to this rule is if the employer intentionally or deliberately caused harm to employees.

The fact that a Legionnaire's infection may not qualify for workers' compensation means that an affected employee is free to bring a personal injury lawsuit against the employer for damages. This may be a better option since you won't have to prove you were sickened at work. You could have been sickened anywhere, but you would have to prove:

• The company had a duty of care to you
• The company breached that duty of care
• That breach lead to your illness
• Your illness resulted in damages
• The company's breach was a direct or proximate cause of your damages

This will involve proving the Legionella that infected you was the same strain found at the site in question. This may be challenging since Legionella bacteria can travel a minimum of 6 kilometers from the point of origin, and was found at multiple sites in the city. You would have to either eliminate all other possible ways of being infected or test the DNA of the bacteria that infected you against the samples taken from the affected sites.

For a greater understanding of how workers' compensation handles occupational diseases or assistance with filing a claim or lawsuit, connect with a law firm like Franco Law Firm in your area.