The Essential Worker and COVID-19 Compensability – A Delaware Perspective

Delaware Workers’ Compensation Practitioners had been waiting to see how the Industrial Accident Board would analyze Workers’ Compensation claims involving the contraction of COVID-19 within the workplace.  There are now two cases that have been litigated before the Industrial Accident Board addressing alleged contraction of COVID-19 within the workplace by an essential worker.  

The Delaware Supreme Court in Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965) defined the term “occupational disease” as “one resulting from the peculiar nature of the employment, i.e., from working conditions which produce the disease as a natural incident of the peculiar occupation, attaching to that occupation a hazard different from, and in excess of, the hazards attending employment in general.” Id at 442. The Court distinguished “ordinary diseases” which may readily be contracted in any occupation or in everyday life from employment and in doing do limited “occupational disease” to cases involving a distinct relationship of the disease at issue to the nature of the injured worker’s employment. Id.  Evidence that the injured worker contracted or aggravated the disease on the employer’s premises was “legally insufficient to find that it was an occupational disease”. Anderson v. General Motors, 442 A.2d 1359, 1360 (Del. 1982).

The Industrial Accident Board previously held in Cacchioli v. Infinity Consulting Solutions, IAB No.: 1501061 (March 9, 2022) that: “it is possible for COVID-19 to be considered an occupational disease in theory, although it depends on the circumstances of each case as to whether it is a compensable occupational disease”. 

In Carl Fowler v. Perdue Inc., IAB Hearing No. 1501167 (December 31, 2020), Claimant initially alleged that he contracted COVID-19 in the lunchroom while working for his Employer on or about 3/22/20. At the time of his injury, Claimant worked in the box room for Perdue spread out six to eight feet from other employees.  However, he would at times take his lunch break in the cafeteria of up to two hundred people, where employees were in close proximity to one another.  Following an Industrial Accident Board Hearing, the Board determined that Claimant did not meet his burden of proof that he contracted COVID-19 at Perdue and denied the Petition.  The Board did not address whether COVID-19 was an occupational disease in its Decision.  

Claimant appealed the Board’s Decision to the Superior Court of the State of Delaware.  The Court held that the Industrial Accident Board erred as a matter of law by applying an incorrect standard of proof; by failing to base its decision on substantial evidence; and acting as its own expert by speculating as to facts not in the record.  In particular, the Board improperly relied upon knowledge gained from extrajudicial sources to draw its own conclusions regarding causation of Claimant’s COVID-19 by speculating that “Claimant could have contracted the virus in many ways and in many places”; that because Claimant did not wear gloves at the gas pump or wash his hands immediately after that it was “just as possible that he contracted COVID-19 from exposure at Royal Farms”; that there are a “tremendous number of places where a person can contract COVID-19; and that Claimant’s trips to retails stroes, his physician’s office and a laboratory in the weeks leading up to his diagnosis were all places he could have caught COVID-19”; and “although these are all unknown factors and possibilities, those possibilities are just as likely places and circumstances that could have exposed Claimant to the virus.” Fowler v. Perdue Inc., Del. Super. Ct., C.A. No. K21A-01-002 NEP, Primos, J. (March 16, 2022).  The Court remanded the matter back to the Industrial Accident Board for additional testimony from Dr. Alfred Bacon as to additional contacts Claimant may have had prior to his contraction of COVID-19 and to determine how that would impact Dr. Bacon’s opinions with regard to causation.  The Court advised the Board to apply the preponderance of the evidence standard to determine whether Claimant contracted COVID-19 while at work.  An additional issue to be addressed on remand was whether COVID-19 is a compensable occupational disease in Delaware. 

Dr. Bacon, Employer’s medical expert provided additional testimony for the Remand Hearing that the peculiar hazard for Claimant was not his specific job, but was the fact that the cafeteria posed a hazardous environment where employees sat “shoulder to shoulder” eating and speaking for up to 30 minutes at a time.  Dr. Bacon indicated that this activity was no different to any other employment site.  The hazard posed was due to the amount of people in one space in a close proximity to one another and was not a hazard specific to Claimant’s actual work environment. The only other outside contact Claimant had was an office visit with his primary care physician unmasked.  However, Dr. Bacon believed the doctor’s office waiting room was a lower risk environment than the cafeteria at Perdue.  Dr. Bacon opined that Claimant contracted COVID-19 in the work environment despite no clear contacts with other employees known to be COVID-19 positive.  Additionally, Dr. Bacon testified that there was not a greater hazard of working at Perdue and eating in the lunchroom that contracting COVID-19 from the employment environment in general. 

Following the Remand Hearing, the Board held that Claimant met his burden of proof that it was more likely than not that he contracted COVID-19 in the cafeteria at Perdue, however the Board held Claimant failed to meet his burden of proof that COVID-19 is a compensable “occupational disease” under the facts of this case. Based upon Dr. Bacon’s opinion that the likelihood of contracting COVID-19 in the cafeteria at Perdue was approximately 10% with contact with in individual with the disease over a period of 15 minutes, which he opined was no different than contracting it “anywhere else where people are gathering to eat and drink, such as a restaurant or social gathering.”  Additionally, the Board cited to Dr. Bacon’s testimony that he was unaware of anything unique to a poultry processing plant or Claimant’s position that would increase his chances of contracting COVID-19 or that makes COVID-19 prevalent or less prevalent. The Board concluded that “all essential workers were at a higher risk than the general population because they were in the work environment, but Claimant’s work environment was no different than any other work environment.” Carl Fowler v. Perdue Inc., IAB #1501167 (12/28/22), (Order on Remand). As a result of the above findings, Claimant’s Petition was denied.  This matter has again been appealed to the Delaware Superior Court. 

In Carol Hudson v. Beebe Medical Center, IAB #1516467 (10/24/22), the Industrial Accident Board again addressed the issue of an essential worker in this context.  This case involved a nurse that was working on a COVID-19 unit in a hospital facility. Claimant had direct contact with COVID-19 patients within the course and scope of her employment.  Claimant alleged that she had multiple exposures while working to COVID-19 due to patients that were unmasked and on occasion her mask breaking although it was unclear as to the date in which she presented with symptoms.  The Board was troubled at the Hearing by inconsistences in testimony regarding the date upon which Claimant presented with COVID-19 symptoms.  

Evidence presented at the Industrial Accident Board Hearing supported that Claimant followed hospital safety protocols that had been implemented at the time and that she diligently wore her PPE while at work.  In this case, Dr. Bacon, the employer’s medical expert, testified that Claimant’s use of PPE as a nurse created a safer environment from individuals in general and mitigated the risk for Claimant as a health care worker.

Additional contacts that were identified in this case involved Claimant attending a funeral and going out to dinner prior to her presentation of COVID-19 symptoms.  Her son presented with symptoms at or around the same timeframe and died several days after. The Industrial Accident Board found that Claimant did not meet her burden of proof that she contracted COVID-19 within the workplace setting, relying upon the opinions of Dr. Bacon that Claimant more likely than not contracted COVID-19 from her son.  This matter is also on appeal to the Superior Court of the State of Delaware. 

Although to date we have yet to see a decision out of the Industrial Accident Board awarding benefits to an employee who allegedly contracted COVID-19 in the workplace,  as Delaware practitioners receive further insight from the Court as to the application of the standard of proof for occupational disease it will provide guidance as to the particular circumstances in which an injured worker and in particular the essential worker will prevail with a COVID-19 claim in Delaware.