Is Covid-19 an Occupational Disease in Missouri? Umm, probably not, but.... A look at the Southern District's Decision in Johnson v. RBX Transportation.

On March 7, 2020, then Governor Mike Parsons announced the first case of COVID-19 documented in the state of Missouri.  Since then, legal practitioners in the state’s workers’ compensation arena have struggled with determining whether the corona virus could qualify as a work-related condition.  Last week, the Southern District Court of Appeals issued a decision in Gordon Johnson v. RBX Transportation, the first appellate decision attempting to resolve the issue.  In Johnson, the appellate court determined it was not.

Johnson was 65 years old at the time he last worked for the employer, and his job duties involved coordinating and dispatching loads of freight.  He spent his employment hours talking to customers over the phone, planning loads, and communicating with drivers.  On the evening of October 8, 2020, he began feeling symptoms of COVID-19, three days after meeting with his manager who was also experiencing symptoms.  Johnson tested positive the next day – as did another co-worker – and eventually developed severe symptoms that required hospitalization and precluded him from returning to the workforce.  The testimony was mixed as to whether the employer took safety precautions against COVID-19, and whether Johnson took precautions against the virus outside of work.

It was undisputed that by October 2020, there was a “major increase” in COVID-19 infections in the area.  In fact, all of the experts, including Johnson’s, agreed that by October 2020, COVID-19 was “an ordinary disease of life to which the general public is exposed outside of employment, “and that contracting the disease was “not inherent to the nature of the work itself.”  Although his expert did testify that the most likely source of exposure occurred at work, the employer’s experts disagreed. 

Johnson argued that because COVID-19 was a “communicable or contagious disease” refenced in Section 287.067.7, the Court did not need to determine whether it was an ordinary disease of life.  The Court disagreed:  “Nowhere in the statute does it imply or state that a communicable or contagious disease cannot also qualify as an ‘ordinary disease of life.” 

The Court then analyzed the case under previous precedent, including Cheney v. City of Gladstone, 575 S.W. 3d 308 (Mo.App. W.D. 2019), Vickers v. Missouri Dep’t of Public Safety, 283 S.W.3d 287 (Mo.App. W.D. 2009) and Smith v. Capital Region Medical Center, 412 S.W.3d 252 (Mo.App. W.D. 2013).  As the court noted in Cheney, this involves two separate issues: 

Whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee’s job which is common to all jobs of that sort.

Johnson relied on Cheney, Vickers, and Smith, supra, to argue that neither issue was fatal to his claim.  In Cheney, the Western District found that a firefighter who developed non-Hodgkin’s lymphoma (NHL) was entitled to benefits under the Act.  Ultimately, the Court relied on expert opinions that showed a link between exposures from firefighting and the development of NHL.  Johnson argued that the case stood for the proposition that medical evidence must only establish “a probability that working conditions caused the disease, although they need not be the sole cause.” 

The Johnson Court disagreed without much discussion, other than to refute the argument in a footnote.  It also disagreed with his argument that Smith and Vickers supported his claim.  He cited Vickers for the proposition that the virus was not an ordinary disease of life.  In Vickers, a laundry worker at a Veteran’s Home developed “C diff,” a contagious bacterium that affected only about one to three percent of the population.  The Vickers’ Court found this was not an ordinary disease of life.  Similarly, in Smith, Hepatitis C was found not to be an ordinary disease of life when a lab worker contracted the disease after working frequently with blood and blood products.

Because even Johnson’s expert had conceded these points, the Court had no trouble denying benefits:

After reviewing the entire record, this Court finds that the Commission did not err in finding that COVID-19 was an ordinary disease of life as of October 2020, and thus Appellant’s illness is only compensable if it follows as an incident of an occupational disease under Section 287.067.1.  Appellant has not established he had a greater or different exposure to the disease than the general public had in October 2020 or that there was a “recognizable link” between his exposure and features of his job that were common to all jobs of that type.

Although the Court denied benefits to Johnson in this case, it did appear to leave the door open for other COVID-19 exposure cases in certain situations.  At this point, it’s hard to envision a scenario where the virus would not be found to be an ordinary disease of life, although future variants may not meet that definition.  But it is not difficult to conceive of situations where there may be a “recognizable link” between the exposure and the job.  Health professionals and first responders easily come to mind, and, in fact, Missouri regulations allowed for a presumption for many in these occupations for a time.  As more data becomes available, practitioners will need to evaluate the literature on specific occupations in order to provide their experts with information to determine if a “Cheney” type probability can be proven.

Johnson will likely be appealed to the Supreme Court. You can read the Southern District's opinion here.

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