By: Ryan Lawson, Associate, Atlanta

As we progress through the flu season, many of us will see the inevitable sickness claim come across our desks.  We are then faced with the question of compensability and whether we are required to provide treatment and/or out of work benefits for a sick employee. While we find that the flu is clearly not compensable in Georgia, occupational “illness” is an interesting topic that is evaluated in a slightly different way than occupational “injury,” and knowing these differences can assist you in making the correct compensability decision on a file.

In Georgia, the first question to ask is whether the disease will be evaluated as an occupational injury or an occupational disease.  While this may seem to be a straightforward assessment, the Court of Appeals in Georgia has ruled that a man who inhaled noxious gasses on a single day at work prior to beginning to cough up blood suffered from an occupational injury. See Moon v. Liberty Mutual Ins. Co., 145 Ga. App. 629, 244 S.E.2d 148 (1978).  Later, in the case of Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102, 317 S.E.2d 189 (1984), the Court ruled that a man diagnosed with a disabling form of byssinosis (chronic narrowing of airways) after years of breathing in cotton dust suffered from an occupational disease.  The distinction drawn by the Court of Appeals seems to indicate that diseases that form over time will be treated as “illnesses,” whereas diseases that have an acute onset will be treated as “injuries.”

The importance of the distinction is that it is more difficult for a claimant to prove that they suffer from an occupational illness than it is to prove that they sustained an occupational injury. In fact, from 1920 until 1946 a claimant was not even able to recover for any illness, even if the illness was clearly related to their employment, unless they could prove that the disease arose directly from an acute injury (leg amputation caused sepsis, making the sepsis compensable, etc.).  The modern interpretation allows for compensation for occupational illness, but the claimant must meet the following 5 criteria: (1) A direct causal connection between the conditions under which the work is performed and the disease; (2) The disease followed as a natural incident of exposure by reason of employment; (3) The disease is not of a character to which the employee may have had substantial exposure outside the employment; (4) The disease is not of a character to which the employee may have had substantial exposure outside the employment; and (5) the disease must appear to have had its origin in a risk connected with the employment and to have flowed from the source as a natural consequence. O.C.G.A. § 34-9-280(2).

The application of this difficult to meet criteria led the Court of Appeals to reverse an award of compensation to an EMT who contracted Hepatitis B, despite his showing that EMTs are three to five times more likely to contract the disease when compared to the general population, as the EMT could not prove that the contraction of the disease was linked exclusively to any particular activity or employment. See. Fulton-DeKalb Hosp. Auth. v. Bishop, 185 Ga. App. 771, 365 S.E.2d 549 (1988). The fact that the Court of Appeals reviewed this “injury” as an “illness” is also telling as to the extent of the acute onset versus chronic development prong detailed above.

Relying on the holding in Bishop, supra, the flu – or the common cold for that matter – would be evaluated as an “illness,” which requires one to meet all five criteria listed in O.C.G.A. § 34-9-280(2).  Because the flu is of a “character to which the employee may have had substantial exposure outside the employment,” that is to say that the flu is easily contracted by the general population, it cannot meet the high standard for compensability and, therefore, is not compensable in Georgia.

Overall, when faced with a claim for occupational illness, the question of compensability is fact sensitive, and requires a quick investigation to reach the correct result.  While it is clear that claims for benefits on account of the flu should be denied, other types of occupational illness are not always as straightforward. If you have any questions regarding the compensability of any type of injury or illness, please feel free to contact our Atlanta office to review the specific facts of your case.