LINCOLN, Neb. (Legal Newsline) - The Nebraska Supreme Court overturned the denial of a woman’s claim for workers compensation over a COVID-19 infection early in the pandemic, although dissenters including the court’s chief justice said the opinion misinterpreted the law and may not have any legal effect.
Christine Thiele, a nurse serving in an administrative role at Select Specialty and Bergen Mercy hospitals in Omaha, filed for disability benefits two years after contracting COVID-19 in April 2020. The Nebraska Workers Compensation Board denied her claim, ruling Covid wasn’t an occupational disease.
Thiel appealed and the Nebraska Supreme Court reversed the dismissal of her case, with three of the seven justices signing off on an opinion that, at least in early 2020, COVID was still rare enough to be considered a particular risk for healthcare workers.
A fourth justice concurred in the result but only to the extent the case presented a material fact question that couldn’t be resolved on summary judgment. Three other justices, including Chief Justice Michael Heavican, dissented, saying the term “occupational disease” doesn’t apply to diseases that are prevalent in the community and the Workers Compensation Board was correct to dismiss Thiele’s claim.
Nebraska law excludes from the definition of occupational disease ““all ordinary diseases of life to which the general public is exposed,” said the dissenting opinion, written by Justice William Cassel.
“The employer presented competent medical evidence that COVID-19 is an ordinary disease of life to which the general public is exposed not just currently, but also when Thiele contracted the disease in April 2020,” Justice Cassel wrote.
Because only three justices agreed with the central reasoning of the majority opinion, the dissenters said, “there is not yet binding legal precedent” on whether COVID is an occupational disease or how to determine when a contagious disease is considered an ordinary disease of life.
Writing for the majority, Justice Lindsey Miller-Lerman said Thiele’s expert witnesses, including her treating physician, provided enough evidence that healthcare workers were at higher risk of contracting COVID-19 in early 2020, when there were only about 400 cases diagnosed in Nebraska. While Thiele didn’t see patients, she said she worked in rooms where other employees were unmasked and delivered donuts to the intensive care unit at a hospital.
Whether COVID-19 is an occupational disease must be assessed by the conditions in April 2020, the court said, not when she got her hearing before the workers compensation board in 2022. By then COVID had “mutated into milder and more widespread variants” and vaccinations were available.
The majority cited court opinions from other states holding infectious diseases including hepatitis, tuberculosis and meningitis were compensable workplace injuries. But the dissenters said those decisions had no bearing on the law in Nebraska, which specifically excludes diseases to which the general public may be exposed.
The Nebraska Supreme Court court previously rejected a suit by a man who claimed he contracted leptospirosis at a meatpacking plant, but allowed the case of a man who contracted emphysema after working in a grain elevator and another involving mesothelioma presumably caused by asbestos.