NEBRASKA SUPREME COURT QUESTIONS WHETHER COVID-19 IS AN ORDINARY DISEASE OF LIFE

In the recent decision Thiele v. Select Medical Corp., the Nebraska Supreme Court addressed the narrow issue whether COVID-19 is an “ordinary disease of life to which the general public is exposed,” pursuant to the Nebraska Workers’ Compensation Act. The employee was a “nurse liaison” at a hospital in March and April of 2020, and contracted COVID-19. In a rare, fractured opinion, the Court provided no clear answer or binding authority. Instead, three justices endorsed one opinion, considered the lead opinion, the result of which was that the trial judge should not have dismissed the employee’s claim on summary judgment, but instead should have allowed the case to proceed to trial. Another justice concurred with the result of the lead opinion (that the case should have been allowed to proceed to trial), but it was not clear whether that justice was concurring with the reasoning of the lead opinion, or just the result. And three justices dissented with the reasoning and result of the lead opinion. This decision does little to resolve the ongoing debate as to whether a COVID-19 illness can be considered an occupational disease under the Nebraska Workers’ Compensation Act.

“Occupational disease” is defined in Section 48-151(3) as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and excludes all ordinary diseases of life to which the general public is exposed.” (Emphases added).

The issue upon which each opinion focused was whether the employee’s COVID-19 was an “ordinary disease of life to which the general public is exposed.” The lead opinion, endorsed by three justices, adopted a new proposition of law that, when determining whether an illness is an “ordinary disease of life,” the proper focus is on the period of exposure prior to contraction or onset of symptoms, and not the circumstances at the time of the hearing. It held that it was error for the trial judge to have focused on the prevalence of the virus at the time of the hearing in 2022, rather than when the employee contracted the virus in April 2020. The lead opinion explained that COVID-19 was not yet widespread in Nebraska in April 2020, and at that time employees in healthcare facilities were contracting COVID-19 at a higher rate than in the general population. Therefore, the employee's job as a nurse liaison heightened her risk of exposure to COVID-19 compared to the general public. As such, there was a genuine issue of material fact as to whether the employee’s contraction of COVID-19 was “an ordinary disease of life to which the general public is exposed,” meaning that the employee should have been allowed to present her case at a trial.

The three justices who dissented reasoned that COVID-19 cannot be considered anything other than an ordinary disease of life, regardless of the time period in question. The dissent pointed out that there was no authority to support the new rule adopted by the lead opinion, that when determining whether an illness is an “ordinary disease of life,” the proper focus is on the period of exposure prior to contraction or onset of symptoms, and not the circumstances at the time of the hearing.  It pointed out that from the outset of the pandemic, COVID-19 has always spread in the same way, just like the common flu; any person-to-person interaction carries the risk of contracting COVID-19. Thus, COVID-19 is an “ordinary disease of life to which the general public is exposed,” and it was proper to dismiss the employee’s petition and not allow her to proceed to trial.

The concurring justice agreed with the result of the lead opinion, that a genuine issue of material fact existed as to whether COVID-19 is an ordinary disease of life, and, as such, the trial judge should have allowed the case to proceed to trial. As the dissent pointed out, the concurring justice “stop[ped] short of endorsing the reasoning of either the lead opinion or the dissenting opinion. Because there is not majority support for the reasoning of any of the opinions issued in this appeal, there is not yet binding legal precedent in Nebraska on the compensability of COVID-19 as an occupational disease, nor is there consensus on the proper frame work for determining when a contagious disease falls within the statutory exclusion for ordinary diseases of life.”

It is important to understand what the decision did not hold. It did not hold that COVID-19 is or is not “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment.” It did not hold that COVID-19 is or is not an “ordinary disease of life.”

At most, this decision held that, when determining whether an illness (including COVID-19) is an “ordinary disease of life,” the proper focus is on the period of exposure prior to contraction or onset of symptoms, and not the circumstances at the time of the hearing. Whether that holding will be upheld by a majority of justices when the issue is before the Court in the future is anything but clear.

If you have questions about occupational diseases or the compensability of COVID-19 in Nebraska, please reach out to Dallas Jones, Micah Hawker-Boehnke or Makenzie Falcon at (402) 475-1075.