WILMINGTON, Del. (Legal Newsline) - A Perdue employee who contracted COVID-19 at work can't earn Workers' Compensation benefits, Delaware's highest court has said in deciding COVID is not a compensable occupational disease.
The issue is popping up at state supreme courts across the country, with Colorado and Nebraska recently finding COVID sufferers can be entitled to Workers' Comp.
On June 24, the Delaware Supreme Court differed, in the case of Carl Fowler. He worked night shifts in early 2020 in Milford in the "box area," an L-shaped room 80 feet long and 50 feet wide with employees about six to eight feet apart.
About 650 of the plant's 1,400 employees also worked nights, often taking their lunch breaks at the same time. Fowler said there would be about 200 people in the lunch room, sitting "like a sardine can."
Perdue's safety manager said the lunch room held only up to 170 people and that employees did not sit shoulder-to-shoulder. The company increased housekeeping protocols and the janitorial staff to clean high-tough surfaces every two hours in March 2020, when the COVID state of emergency was declared.
On March 18, 2020, the first employee with COVID symptoms was sent home, though it wasn't confirmed until March 31. Perdue increased cleaning measures that month, but between March 28 and April 8, 24 employees tested positive for COVID.
Fowler caught COVID and was admitted to a hospital with respiratory failure, septic shock and an acute kidney injury. He was intubated and put on a ventilator. Further, he required dialysis for more than a month and developed gastrointestinal bleeding
He stayed in the hospital until June 9, 2020. He sought Workers' Comp benefits but the Industrial Accident Board found he had not proven he contracted COVID at work.
The Superior Court reversed that finding and remanded his case to the IAB, which then said COVID isn't a compensable occupational disease "under the circumstances of this case," but could be in others.
The Delaware Supreme Court previously found language in the state's Workers' Comp laws was unhelpful to define "compensable occupational disease," and looked at case law from other jurisdictions like New York.
That led to a 1965 decision finding it is a disease "resulting from the peculiar nature of the employment, i.e., from working conditions which produce the disease as a natural incident of the particular occupation, attaching to that occupation a hazard different from, and in excess of, the hazards attending employment in general."
An automotive plant employee tried to claim nasal inflammation was compensable 17 years later, but the Supreme Court rejected. It found allergic rhinitis didn't result from the "peculiar nature" of his employment but rather his own predisposition.
Using those two cases in Fowler's claim, the Superior Court found COVID wasn't a natural incident of working at a poultry plant and that COVID was not distinctive to its environment.
"The Superior Court correctly held that Fowler presented evidence sufficient to show that the cafeteria at Perdue presented a hazard greater than attending employment in general," Justice Karen Valihura wrote.
"However, the Superior Court also correctly held that Fowler lacked evidence sufficient to show that the cafeteria at Perdue was a hazard 'distinct from' that attending employment in general."
The lunchroom hazard of COVID was no more dangerous than any other store or social event, the courts held. The Superior Court noted an Ohio appeals court decision that COVID is not an occupational disease because it was a common illness facing the general public.
"The flaw in Fowler's case is that COVID-19 was not a 'natural incident' of, or an inherent and concomitant aspect of his job as an employee at Perdue," Justice Valihura wrote.
"In cases where courts have found that a disease qualifies as an occupational disease, claimants have established that they contracted the illness due to the peculiar nature of the job."