Patti Miller Tereskerz, JD, PhD, MS, and Janine Jagge1; PhD, MPH

ABSTRACT

Approximately 800 000 needle-sticks and other sharp injuries from contaminated medical devices occur in health care settings each year, of which an estimated 16000 are contaminated by human immunodeficiency virus (HIV). Health care workers who are Occupationally            infected by HIV are at risk of being left without workers' compensation coverage. In some states, the definition of an occupational disease is so restrictive that infected health care workers are unlikely to qualify for benefits. For those who are able to meet the definition, compensation is often inadequate.  Recourse is also limited by statutory provisions that preclude health care workers from bringing civil suits against their employers

We recommend the amendment of legislation to provide more equitable remedies, including: {I) broadening the definition of occupational disease; (2) eliminating provisions that require a claimant to prove that (a) a specific occupational incident resulted in infection and (b) HIV is not an ordinary disease of life; (3) expanding the time for filing a claim; (4) assuring that lifetime benefits will be provided to the disabled health care worker; and (5) assuring that claims will remain confidential. (Am J Public Health. 1997;87:1558- 1562)

Introduction

There are over four million health care workers in the United States at risk of occupational infection by bloodbome pathogens, including human immunodeficiency virus (HIV), hepatitis B virus, and hepatitis C virus.2 Approximately 800 000 needle-sticks and other sharp injuries from contaminated medical devices occur in health care settings each year, of which an estimated 16000 are HIV-contarninated.3 Injuries occurring outside of hospitals in clinics and private office settings remain undocumented, and there is serious under- reporting of accidental exposures to blood and body fluids, with as many as 34% of exposed workers not reporting percutaneous injuries and up to 75% not reporting mucocutaneous exposures.4 Such underreporting may result from health care workers' fear of reprisal and job discrimination or from institutions' failure to provide effective reporting systems. Most health care workers will sustain several needle-sticks or other blood exposures during their careers. Many of those exposed will file claims for workers, compensation benefits. .

Health care workers are required to work with inherently dangerous medical devices that put them at risk of acquiring bloodbome pathogens. Yet many are unaware of the limitations of the worker’s compensation system until they apply for benefits.

Workers' compensation is governed and defined by state law. Disabled employees receive benefits for qualifying occupational illnesses and injuries, regardless of any fault of the employee. The employee also does not have to prove employer negligence to receive benefits. Employers in turn are usually insulated from liability for an occupationally acquired illness or injury.

Workers ' compensation benefits are potentially available to health care workers occupationally infected by bloodborne pathogens. This paper focuses on health care workers who are already occupation- ally infected with HIV and uses HIV as a vehicle to examine limitations of workers' compensation laws. However, many short- comings identified apply to other occupational diseases as well.

Limitations of Workers' Compensation Laws

The Exclusive Remedy Provision

Workers ' compensation laws have an exclusive remedy provision that precludes employees from bringing private suit against employers to recover damages for an occupational disease or injury.5 there are few published cases in which workers' compensation laws have been applied to my exposures or infections. Of the few decisions handed down, however, workers ' compensation has been upheld as the exclusive remedy for employees whose occupational exposure to HIY resulted in compassable workers' compensation claims.6.7 The practical result of the exclusive-remedy provision of workers' compensation laws has been to insulate health care institutions from liability for failing to provide available medical technology incorporating injury- or exposure- preventing features or for continuing to provide medical products known to be unsafe for employee use.

This problem is best illustrated by a Montana case 7 in which the claimant brought suit on grounds that the medical center where he worked required him to use a defective medical device, which was responsible for an injury he sustained. The claimant was injured by a needle included with an arterial blood gas kit that he used to draw blood from a patient infected with HIY. The claimant's supervisor agreed with a Radiometer America, Inc, sales representative to accept at reduced or no cost residual stock of arterial blood gas kits that were known to have a manufacturing defect that presented a risk of needle-stick injury to users. The defective kits were the only ones available for use in the unit where the claimant worked.

The claimant alleged that the sales representative and supervisor explained to some, but not all, of the workers using the kits that the devices were defective and had to be handled in a particular way to avoid injury. The inventoried kits were stored in boxes displaying the following handwritten warnings: "Free rejects?" "Yes," and "When using needle may screw past its mark into hub of serene [sic]-can still use, but be aware of thiS."7 Despite evidence that the claimant's injury was caused by the manufacturing defect, the court held that the workers ' compensation exclusive- remedy provision barred the claim.

This case illustrates that under the exclusive-remedy provision of workers' compensation laws, there is little legal incentive for health care institutions to purchase safety equipment that would reduce employees' injury risks. Most workers' compensation laws shield health care institutions from liability even when, because of economic incentive, defective equipment has been knowingly purchased and used and has resulted in injury to an employee. As stated by one legal analyst:

Where some employers can avoid more costly protections for their employees without incurring additional liability, they usually will do so. Employers generally will act only if given the monetary incentive to do so.8 (p89S)

While empirical data suggest that employers who fail to protect their employees can incur increased premiums for workers' compensation insurance, the myriad of complicated factors that con- spire to determine an employer's premium rate do not always accurately reflect the employer's safety record.9 Consequently, both aggregate safety data and empirical studies support the conclusion that the high costs of workers ' compensation have not motivated large numbers of employers to take injury prevention seriously, and occupational injury rates have not declined.9

Although negligence claims are precluded, there are two recognized exceptions to the exclusive-remedy provisions.1O First, if an employer intentionally injures an employee, the employee may elect to bring a private suit against the employer.11 However, an employer's failure to institute safety measures or even the intentional removal of existing safety measures that leads to injury has not been sufficient to demonstrate an intent to injure the employee. Therefore, the intent to injure must be distinguished from the intent to remove or not to institute a safety measure. 10

The second exception, recognized by some states, occurs because the employer fails to comply with the terms of the workers’ compensation act or is not a subscriber to the workers ' compensation program. 10 An employer that does not participate in the workers’ compensation program is not protected against suits for negligence and other causes of action

Meeting the Definition of an Occupational Disease

Whether an employee who has contracted an occupational infection qualifies for workers' compensation benefits depends on the relevant statutory definition of compensable occupational disease or injury. Hepatitis B has been used as a model for HIV on issues of legal liability.12 Therefore, it is likely that any precedents set for occupationally acquired hepatitis B will serve as the basis for court decisions for occupationally acquired HIV.

Conflicting decisions have been handed down in cases in which the court was asked to decide whether the hepatitis B virus met the definition of an occupational disease under workers ' compensation laws. Decisions have varied as a result of different statutory language in the jurisdictions where the cases are filed.

Some states have strict and specific definitions of "occupational disease." For example, benefits have been denied on the grounds that the claimant was unable to show that he or she did not have substantial exposure to the disease outside of employment or was unable to prove that hepatitis B is not an "ordinary disease of life" to which the public is exposed. 13

Other states have less stringent statutory requirements. For example, in Wuesthoff Memorial Hospital v Hurlbert, 14 the following criteria were ordered by the court:

I) The disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;

2) The disease must be actually contracted during employment in the particular occupation;

3) The occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or    the incidence of the disease must be substantially higher in the occupation than in usual occupations; and

4)  if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in

          the particular occupation than in the general public.14

In this case, the court found that there was substantial evidence that the claimant's hepatitis B was occupationally acquired and held that it was not necessary to demonstrate that a specific expo- sure caused the infection. The court held that the following evidence was sufficient to satisfy the four requirements outlined above: ( I) conditions characteristic of the claimant's occupation as a laboratory technologist exposed him to hepatitis B; (2) the claimant contracted the disease while employed in the laboratory; (3) the incidence of hepatitis B is substantially higher in the claimant's occupation than in other occupations; and (4) the incidence of hepatitis B is higher in the claimant's occupation than in the general public. 14

The Florida statute in this case defined an occupational disease (as did the Georgia statute recited in the previous case, cited above) to exclude all ordinary diseases of life to which the public is exposed. However, the Florida statute included a qualifying provision that reads, "unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. " 14 This qualifier allowed the Florida appellate court to rule

in favor of the claimant.

A North Carolina appellate court reached a similar conclusion in awarding workers ' compensation benefits to the widow and dependents of a deceased laboratory technician who often handled blood specimens that spilled on his fingers and who contracted serum hepatitis. 15 The court rejected the notion that an illness cannot qualify as an occupational disease because it is not unique to the injured employee's profession, noting that this has been the practice in several other jurisdictions. 16 Furthermore, this court did not require proof of a causal connection between a specific exposure and the resulting infection, noting that the assumption of causation must frequently be based on circumstantial evidence, including:

I) The extent of exposure to the disease or disease-causing agents during employment;

 2)  The extent of exposure outside employment;

            3)   And absence of the disease prior to the work-related exposure as shown by the employee's medical history .15(p475NC;p200SE)

The problem of meeting the definition of an occupational disease is not limited to workers occupationally infected with bloodbome pathogens. A Department of Labor study on occupational diseases found that "only five percent of those severely disabled from an occupational disease receive workers' compensation benefits," in part because of the difficulty in establishing the work- relatedness of the illness.17 Only 5% of income support for those severely disabled by an occupational disease is provided by workers ' compensation, with the major sources of support corning from Social Security (53%), pensions (21% ), veterans' benefits ( 17% ), welfare ( 16% ), and private insurance (1%).17 (Some persons receive support from more than one source.) Twenty-five percent of severely disabled workers receive no in- come support payments at all.17 For those disabled workers who receive workers' compensation payments, the average disabled worker must wait I year before receiving the first benefits payment. 17

Amount of Workers' Compensation

for Occupationally Acquired Diseases

Recovery under workers ' compensation laws usually does not provide full restitution. In contrast, while the claimant in a civil suit has no guarantee of success, damages, if they are recovered, may compensate the victim not only for lost income and medical expenses but also for pain and suffering. The goal of providing recovery in a civil suit is to make the victim whole. In comparison, workers' compensation generally pays for medical expenses, pays only a portion of the victim's wages, and provides no compensation for pain and suffering. In addition, a workers ' compensation claimant is precluded from recovering punitive damages in the face of gross negligence.

Courts have rendered different decisions with regard to allowing claims for emotional distress following potential exposure to HIV.I8-20 Scholarly review of this topic recommends against allowing claims for emotional distress}1

The Virginia workers ' compensation statute is typical22 and will be used to illustrate the limited level of compensation provided for a worker who is incapacitated as a result of occupational exposure to HIV.

An employee's compensation is fixed at 66.66% of his or her average weekly wages for the year prior to the date of injury, with a minimum of not less than 25% and a maximum of not more than 100% of the average weekly wage in the state}3 This means that higher income health care professionals receive only a small percentage of their current income.

In part, the rationale for providing only 66.66% of the worker's salary is that the compensation benefits, unlike wages, are not taxed. Unfortunately, this provision has an adverse impact on those who earn the lowest wages. Health care workers in the lowest tax brackets may pay little or no federal and state income tax. Consequently, at the lowest end of the salary scale, workers may be compensated at a level that represents as much as a one-third reduction in net income.

Second, in Virginia there are no provisions for lifetime benefits for those who contract HIV as a result of occupational exposure, except in the unusual case when the HIV infection manifests itself in ways for which there is permanent coverage as, for example, when the individual has permanent loss of both eyes or limbs as a result of the infection} 4 In Virginia, the maximum period of coverage is 500 weeks for the typical claimant with occupationally acquired HIV} 5

Third, the right to compensation is forever barred unless a claim for compensation is filed within 2 years after a positive test for HIV infection}6 This statutory provision is particularly unreasonable when applied to employees who become HIV positive but remain asymptomatic for years. The determining factor as to when a claim must be filed should be when benefits are needed, not when seroconversion occurs. Time limitations for filing a claim are also a problem for other occupational diseases where there is

a considerable period of time between occupational exposure and manifestation of the disease. 17

The problem of inadequate compensation is not limited to occupationally acquired HIV. In 1980, the Department of Labor reported that even though workers' compensation benefits are supposed to replace two thirds of an employee's lost income, a worker who became totally disabled for life and was able to prove that the disability was occupationally induced received on average approximately $9700 in total compensation compared with expected future earnings of $77 000.17

An HIV-positive health care worker runs the risk of revealing his or her HIV status when filing a claim and may jeopardize job security and confidentiality. Confidentiality is of extreme importance in the United States, where a worker's right to employment is not guaranteed by law and where there remain serious problems with discriminatory practice in employment and in obtaining and keeping health insurance.27-30 Because the disclosure of HIV status is required to qualify for benefits, health care workers face a difficult choice: either risk forgoing benefits by failing to file a claim within the designated time period, or risk the potentially adverse consequences of revealing HIV status before becoming symptomatic.

The confidentiality of workers' compensation records is an issue of current concern. In the past, workers ' compensation records have been placed in the public domain for the purpose of supporting workplace-safety improvements.31 In Virginia, a statute was adopted barring public access to these records. However, the records may still be open to the Employment Commission and any party that convinces the workers ' compensation commission of a legitimate interest in the records.32 Hence, a health care worker who may need future benefits has real disincentives to filing a claim owing to concerns about the incomplete protection of confidentiality.

Jane Doe's extensive struggle to maintain the confidentiality of her workers' compensation records is illustrative. Initially, no assurance was   provided that the number of individuals with access to her records would be limited. For 2 years, while this issue was being resolved, she received no benefits. Finally, as a result of media attention, the mayor of San Francisco intervened to restrict to four the number of people at the workers ' compensation office who would know her identity.1

Conclusion

Workers who are occupationally exposed to or infected by HIV and other bloodborne pathogens are vulnerable to being left without adequate workers’ compensation benefits, or even without any benefits. A major hurdle for health care workers is meeting the definition of an occupational disease, which varies among jurisdictions and in some cases is so restrictive that infected health care workers are unlikely to qualify for benefits. The issue for those meeting the statutory requirements is one of obtaining adequate compensation.

Health care workers have limited recourse for redressing these deficiencies. Workers' compensation laws shield health care institutions from liability from civil suits for occupationally acquired HIV. The exclusive-remedy provision minimizes employers' legal and economic incentives to purchase equipment or institute engineering systems that reduce exposure risk if the safer products or systems cost more than conventional products.

More equitable remedies are needed for health care workers who are occupationally exposed to or infected by HIV. We offer several recommendations for redressing these deficiencies.

Education of health care workers regarding the importance of reporting an occupational exposure to blood or body fluids is crucial since ineligibility for workers ' compensation benefits can be the direct consequence of failing to submit an incident report of an adverse blood exposure. All health professionals need to know the provisions contained in their state's workers' compensation laws and to determine when collective efforts to amend restrictive qualifying criteria are war- ranted on the basis of epidemiologic data. Professional organizations can play an important role in educating their members and in undertaking initiatives to amend existing legislation where necessary.

Revision of workers’ compensation laws is needed to broaden options for redress for all workers, not just those with occupationally acquired HIV.  Potential claimants should be allowed the option of filing civil suit or applying for workers' compensation specifically when it can be demonstrated for any occupational disease or injury that the employer: (I) knowingly or recklessly removed safety equipment from the workplace; (2) failed to provide available and effective safety equipment in the workplace; or (3) knowingly or recklessly introduced un- safe equipment into the workplace. Legal scholars have criticized the workers' compensation system's exclusive-remedy provisions for allowing unwarranted immunity for employers' willful and wanton misconduct for more than 10 years.8.33 Changes in the workers ' compensation system could productively begin with remedies for occupationally acquired HIV. The proposed amendments would provide legal incentives that currently do not exist for employers to provide protective equipment to employees.

We recommend the following changes in workers' compensation laws to provide more equitable remedies for workers with occupationally acquired HIV. We believe that these changes will also provide needed incentives for employers to provide protective equipment for employees.

First, the definition of occupational disease should be broadened where necessary so that every jurisdiction will allow compensation for employees who can reasonably demonstrate that they did not acquire the disease from another source and that their occupation put them at increased risk of the disease. Provisions that compel the claimant to prove that a specific occupational incident resulted in acquiring the disease and provisions that require the claimant to prove that the occupationally acquired disease is not an ordinary disease of life should be eliminated. This recommendation is not limited to HIV but should extend to all occupation- ally acquired diseases, given the problematic nature of qualifying for benefits for many occupationally acquired diseases.17

 Second, the time limit for filing a claim should be increased for asymptomatic workers who become HIV positive as a result of an occupational exposure. The time limit in such cases should be extended until the employee is disabled. This recommendation applies to states that do not have what is known as a discovery statute, which allows claims to be filed when the occupational disease is discovered or manifests itself, but instead impose an arbitrary time limit after exposure to filing claims.  Further study is needed to determine where time limits need to be extended for other occupational diseases in which there is substantial time between exposure and manifestation of the disease.

Third, benefits should be provided for a worker who has occupationally acquired HIV and is totally disabled for as long as the worker is disabled and unable to work.

Fourth, confidentiality of claimants receiving benefits for occupationally acquired HIV must be guaranteed by withholding their identities from public disclosure. Disclosure should be limited to those with an absolute need to know the claimant's identity in order to administer benefits or medical care.

The need for special statutory requirements for HIV with regard to the third and fourth proposed amendments is justified on the basis of the extraordinary features of HIV. Few diseases carry the stigma that HIV still does. Therefore, special statutory provisions are warranted to assure that HIV claimants' privacy rights are guaranteed. Otherwise, few valid claims will be made because of the claimant's fear of potential job discrimination and stigmatization by colleagues. Likewise, benefits should be provided for occupationally acquired HIV for the entire period when the worker is disabled because few diseases are so completely devastating with certain mortality. Precedent exists for awarding lifetime benefits in instances when occupational injuries have been particularly devastating.34

Increasing attention to the prevention of occupational blood exposures is an important way to reduce the need of health care workers for workers' compensation benefits. It has been estimated that over 80% of needle-sticks are potentially preventable by existing means that have yet to be implemented.2 Measures to prevent occupational blood exposures and infections should be directed to enforcing existing Occupational Safety and Health Administration regulations requiring employers to provide "engineering controls "35 when such technology is commercially available. In addition, health care facilities must provide reporting systems that motivate and encourage workers to report injuries.

While HIV has been the focus of this article, at least 20 other bloodbome pathogens have been documented in medical literature as being occupationally transmitted to health care workers- hepatitis B and hepatitis C the most serious and frequently transmitted among them.36 As was discussed, many of the issues raised here are also relevant to occupational infections by these other pathogens. The broad scope of this occupational hazard only serves to emphasize the need for change in preventing occupational blood exposures and in providing adequate and accessible compensation for those bearing the burden of risk at the front lines of health care.

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2.                         Occupational Exposure to Bloodborne Pathogens; Final Rule, 56 Federal Register 64055 (1991) (codified at 29 CFR Part 1910.1030).

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34. Va Code Ann. §65.2-503(C)(1-3). 35. 29 CFR 1910.1030 (1994).

36.           Jagger J, Hunt E, Brand-Elnaggar J, et al. Rates of needle-stick injury caused by various devices in a university hospital. N EnglJ Med. 1988;319:284-288.