Late on 25 March 2021, and as anticipated in Claire Lawlor's article on 8 March 2021 looking at Long Covid and the question of classification as an occupational disease, the Industrial Injuries Advisory Council (IIAC) published Position Paper 48, an interim report looking at COVID-19 and occupation. The IIAC's role is as an independent statutory body advising the Secretary of State for Social Security on matters relating to the IIDB scheme, principally relating to amendments or additions to the list of prescribed diseases for which benefit may be paid. This involves consideration of the medical and epidemiological evidence as to whether it can be demonstrated that disease can be attributed to occupational exposure with reasonable confidence, "reasonable confidence" being interpreted as being based on the balance of probabilities. Whilst undertaken for the primary purpose of looking at prescription for benefits purposes, the interim IIAC report is useful as a review of the contemporary research linking COVID mortality and infection to occupational settings and thus will be of interest to insurers, public bodies and corporate entities who may face COVID-19 infection claims now or in the future.
The headline conclusions from the report are that: –
Some workplaces and therefore workers are at high risk of COVID-19 due to high levels of exposure relating to job and workplace characteristics
Higher infection rates are found in workers in Healthcare, Social Care and Transport (particularly relating to the first wave of the pandemic).The risk of suffering severe effects from COVID-19 is also increased in social care and transport workers in the UK
Analysis based on UK death certificates between March and December 2020 show a more than doubling of risk in several occupations, especially for males, including social care, nursing, bus and taxi driving, food processing, retail work, local land national administration and security
The large number of RIDDOR disease and death reports for COVID-19 for these occupations mirrors the death data; RIDDOR also provides evidence of high numbers of cases in other occupations such as education
There is a clear association between several occupations and increased risk of death from COVID-19 but the consistency and extent of the mortality data and the lack of adjustment for factors such as deprivation means that the evidence is too limited and of varying quality to justify prescription at this stage
Information regarding any link between occupation and risk of disability, specifically, following COVID-19 is "currently scarce"
However, the evidence of a doubling of risk in several occupations “indicates a pathway to potential prescription” and the IIAC will recommend prescription if and when there is strong of evidence that occupational exposures can cause disabling disease on the balance of probabilities
The basis of the report
The report sets out the review undertaken by the IIAC of the available evidence, and notes that several countries have now recognised COVID-19 as a work-related disease, including Belgium and Norway considering it to be a compensatable occupational disease.
The IIAC notes that consideration for prescription is complicated by the fact that, unlike some occupational diseases, COVID-19 cannot be regarded as uniquely occupational, in the sense that infection can occur in a number of community-based settings outside the occupational setting. Further, even when caused by occupation, the symptoms are indistinguishable from the same disease occurring in someone who has not been exposed to a hazard at work.
Perhaps curiously, the report suggests that "there is no indication to date that COVID-19 due to occupational exposures is more or less likely to result in post-COVID-19 syndrome than is the case for non-occupationally transmitted COVID-19”, despite also concluding that, "the risk of suffering severe COVID-19 is also increased in social care and transport workers in the UK".
Much of the research data upon which the report is based is taken from death certificates and the analyses reported by the UK Office of National Statistics (ONS) in its 3 bulletins reporting analyses of deaths for England & Wales involving COVID-19 by occupation, covering the period up to 20 April 2020, the period 9 March to 25 May 2020 and the period 9 March to 28 December 2020. Cause of death is coded using the ICD-10 standard, and occupational characterisation was coded using the Standard Occupational Classification 2010 (SOC 2010). The IIAC also looked at the HSE data on RIDDOR reporting – this has numerous shortcomings in particular due to acknowledged under-reporting of cases and some misapplication in the coding of applicable industry sector; further the HSE technical summaries omit data notified before to 10 April 2020. However, the IIAC considered that the RIDDOR data did provide useful additional information and also markedly correlated with the ONS mortality data.
Greater reliance was placed on the death data because of the relatively lower quality of the infection-only data. As the report notes, access to testing in the UK and in many other countries was limited in the early months of the pandemic with certain sectors such as healthcare being prioritised. The report notes that compared to health and social care workers, much less information has been published so far about risks of infection in other groups of workers. Although many of the studies of healthcare workers have shown high rates of infection, few studies have made any direct comparison with a control population.
Thus a focus on occupational mortality data based on death certificates and mortality studies is probably inevitable, and the ONS reports throughout 2020 and in early 2021 were among the first occupational date to emerge in the UK. Nevertheless, other studies and data relating to infection and hospitalisation rates by occupation were also evaluated, subject to acknowledging the limitations involved.
The report contains tables setting out what can be concluded from the available research as to relative risk, or RR, in various occupational sectors. This is broken down into occupations with 20 or more deaths recorded, and those with fewer than 20 deaths recorded.
It is worthy of note that there are some 14 occupational sectors in which RR is more than doubled, where there have been 20 or more deaths, including care workers and home carers, restaurant and caring establishment managers and proprietors, transport workers with a public-facing role such as taxi, bus and coach drivers, shopkeepers, food & drink operatives, elementary construction occupations, cleaners and shopkeepers. Looking specifically at transport, the report notes that it is transportation workers with a public facing role, such as bus and taxi drivers, who have had worse outcomes, as opposed to transport workers without such a public-facing role (e.g. van and lorry drivers).
There are also substantially elevated RR figures for some other occupations in areas where there have been fewer than 20 deaths recorded, notably bakers and flour confectioners, publicans, butchers, some police officers, hairdressers and bank and post-office clerks.
As the IIAC report notes, however, the ONS death rates have been adjusted for age and sex, but not for other factors such as deprivation, region and ethnicity.
Although it is not the role of the IIAC to offer advice on precautions and prevention, the report does contain a section dealing with these issues. The IIAC refers to the BOHS Risk Matrix containing guidance on the types of control measures which should be adopted based on likelihood and duration of exposure. The usual risk management precautions, including wearing face coverings, maintaining physical distance between workers and good ventilation, are emphasised, although the report acknowledges that because transmission may occur by multiple routes, "complete prevention for workers is not feasible." The report also notes that "while exposure levels vary in different work places, exposure is difficult to quantify."
With respect of vaccination, the report notes that "overall preventive potential of these strategies remains unknown."
From a claims perspective, the fact that the IIAC adopts a “doubling of risk” or statistical approach to the balance of probabilities when assessing the evidence for prescription does not mean that courts, when asked to assess causation in individual cases, will necessarily do the same, and the causation landscape remains one of the key challenges which claimants will have to surmount in pursuing infection claims.
What the report does do, perhaps, is reinforce predictions as to which sectors and jobs, beyond the health and care sector, may be the first for early exploration by claims management companies and the claimant market generally.
As for the IIAC, the report indicates that it will continue to monitor the data and revisit the question of prescription when better data is available relating not just to death but also infections, and links with disability and severe disease; however the language used appears to anticipate that occupational attribution and therefore prescription for benefits purposes at least is likely. In this respect the IIAC will not just be looking at the usual array of respiratory symptoms, but recognises that it is now accepted that COVID-19 is "a multi-system inflammatory condition which impacts on every system in the body. Pulmonary fibrosis, cardiac injury, thromboembolic disease including pulmonary emboli and strokes, and encephalopathy are all recognised.”