Workers’ comp changes sought for HCWs with HIV
Occupationally infected workers face legal obstacles
Health care workers who have been occupationally infected with HIV often encounter frustrating legal obstacles to collecting workers’ compensation benefits, but a radical new movement is seeking a two-pronged solution: to change workers’ comp laws nationwide, and to pressure hospitals into purchasing devices that can prevent HIV-contaminated needlesticks.
Many HCWs who sustain needlestick injuries that result in HIV seroconversions, as well as other occupational diseases, "are unaware of the limitations of the workers’ compensation system until they apply for benefits," says Patti Miller Tereskerz, JD, PhD, MS, director of health law and safety for the Health Care Worker Safety Research and Resource Center at the University of Virginia in Charlottesville.
Tereskerz, who recently co-wrote an article calling for legislation to reform the workers’ comp system,1 says she hopes bringing the issue to the forefront will provide legal incentives for hospitals to purchase safer needle devices designed to prevent the injuries that can transmit bloodborne pathogens such as HIV.
Presently, the "exclusive remedy provision" of workers’ compensation laws precludes employees from suing employers to recover damages for an occupational illness or injury. State laws allow disabled employees to receive benefits for qualifying occupational injuries and illnesses, while shielding employers from liability. What Tereskerz proposes is "more equitable remedies" that, among other things, would allow HCWs who have seroconverted from HIV-infected needlesticks from conventional devices to file civil suits against their hospital employers.
"The pitfalls of the exclusive remedy provision have been debated in the legal literature, but have not been looked at before exclusively from a bloodborne pathogens perspective," Tereskerz tells Hospital Employee Health. "Many legal scholars in the past have argued for removing exclusive remedy provisions because they are a disincentive for instituting safety."
Safety devices are more expensive than conventional ones, and many hospitals choose not to purchase them for financial reasons.
"They say even if X number of people are stuck, they’re covered under workers’ comp, so they don’t have the incentive to buy those devices. But they would if they undertook that same economic analysis and saw that each of those persons could sue them for millions of dollars. It would then become economically feasible to buy safety devices," says Tereskerz, who also is of counsel with Buck, Hogshire & Tereskerz Ltd. law firm in Charlottesville.
We have to attack it from all fronts’
Late last year, Rep. Pete Stark (D-CA) introduced the Health Care Worker Protection Act of 1997 in Congress. The legislation would require hospitals to use needles that meet certain safety standards for preventing needlesticks, or face losing Medicare funds. (See HEH, January 1998, p. 6.) If the bill is enacted into law, it could minimize the need for changes in workers’ comp laws to pressure hospitals.
"We have to attack it from all fronts federal and state and do everything we can to enhance safety," she says. "We’re looking into ways that would provide legal incentives to invest in safety devices and prevent needlestick injuries."
In addition, Tereskerz points out that workers occupationally infected with HIV often have significant problems collecting workers’ compensation due to the law’s restrictive definition of an occupational disease. Using hepatitis B as a legal liability model for HIV, she notes that conflicting court decisions have been handed down as to whether HBV met the definition of an occupational disease under workers’ comp laws. In Georgia, for example, benefits were denied on the grounds that a claimant could not prove she was not exposed to the disease outside of employment or that hepatitis B is not an "ordinary disease of life" to which anyone could be exposed.2
Statutory requirements are less restrictive in other states. In a Florida case, the court found that a hospital worker’s HBV infection was occupationally acquired without requiring proof that the infection was caused by a specific exposure.3
Another problem of the workers’ comp system is the amount claimants can expect to collect, which Tereskerz says is often inadequate. While civil suit claimants, if successful, may collect damages for pain and suffering in addition to lost income and medical expenses, workers’ comp laws do not provide full restitution.
"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," she explains.
Workers get fraction of salaries
Using the Virginia workers’ comp statute as an example of the limited compensation provided to workers who are incapacitated due to occupational HIV infection, Tereskerz notes that both high- and low-income HCWs receive only a small fraction of their salaries. Also, lifetime benefits are not provided, with the maximum period of coverage being only 500 weeks. In addition, HIV-infected workers must file a claim within two years after a positive HIV test, a provision she calls "particularly unreasonable when applied to employees who become HIV-positive but remain asymptomatic for years."
Confidentiality is also problematic. HIV-positive HCWs risk revealing their HIV status when filing claims, which may jeopardize job security.
Most HCWs do not find out about these issues until they need to file a claim, Tereskerz says. For that reason, she is launching a nationwide initiative calling for the following changes in workers’ compensation laws that could also motivate employers to provide protective equipment:
• The definition of occupational disease should be broadened to allow compensation for employees who can "reasonably demonstrate" that their occupation put them at risk for the disease. They should not have to prove that the disease was caused by a specific exposure incident, or that the disease is not an "ordinary disease of life."
• The time limit for filing claims should be extended for occupationally infected HIV-positive asymptomatic workers until such time as they become disabled.
• Benefits should be provided for totally disabled occupationally infected HIV-positive workers for the length of the disability.
• Confidentiality of claimants receiving benefits for occupationally acquired HIV must be guaranteed. Their identities should be withheld from public disclosure and should be limited to those who need to know to administer benefits or medical care.
Tereskerz says she plans to begin the initiative this year in her home state of Virginia, and then to seek support from HCWs and other professional associations.
William Borwegen, MPH, health and safety director for the Washington, DC-based Service Employees International Union, agrees that the workers’ comp system is inadequate for meeting the needs of injured HCWs.
"Not only is it inadequate in compensating the injured worker, but also in acting as any type of credible [encouragement] to health care institutions to buy safer devices," he says. "They just look at it as an insurance premium they pay. It’s not experience-based enough, so employers don’t have to pay increased premiums of enough consequence to act as an incentive for a safer program."
References
1. Tereskerz PM, Jagger J. Occupationally acquired HIV: The vulnerability of health care workers under workers’ compensation laws. Am J Public Health 1997; 87:1558-1562.
2. Fulton-DeKalb Hosp Authority v. Bishop, 185 Ga App 771, 365 SE2d 549 (1988).
3. Wuesthoff Memorial Hospital v. Hurlbert, 548 So2d 771 (1st Dist Ct Fla 1989).
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