What's Hot in Workers' Comp
Special Workers' Compensation Alert - Delaware
In Carl Fowler v. Perdue, Inc., (IAB Hearing No. 1501167- Decided Dec. 31, 2020), the first Delaware decision involving a claim for COVID-19, the Board denies the claimant’s petition by finding that, while it was agreed that the claimant had been diagnosed with COVID-19 and was medically unable to work, the claimant failed to meet his burden of proof that it was more likely than not he contracted it at his place of employment.
This case came before the Board on the claimant’s DCD petition, alleging the claimant developed COVID-19 due to workplace exposure and it qualifies as an occupational disease. The parties agreed that the claimant did have COVID-19, but the employer disputed that it was compensable.
The claimant, a 55-year-old man, testified that he had worked for the employer only from January 2020 until he contracted COVID-19 in late March of 2020. He worked in the box room, sending boxes down a conveyor belt on the night shift and had a 30-minute meal break, where he went to the lunch room on a regular basis along with about 200 other employees. He never wore a mask at work. He also testified that prior to the onset of his symptoms on March 27, 2020, while away from work he did not socialize with friends, go out to eat or do any shopping. The testimony of the claimant’s wife shows that the claimant developed chest pains on March 29, 2020, and was given a COVID-19 test at the emergency room, which turned out to be positive, and that the claimant’s symptoms were much worse by April 4th, when he was taken to the hospital ambulance. The claimant was admitted to Bayhealth Hospital in respiratory distress and developed a number of serious complications, including septic shock, and he had to be placed on a ventilator. The claimant was hospitalized from April 4 to June 9, 2020, and then spent several weeks in a rehabilitation facility.
As far as the medical evidence presented, Dr. Brown, the claimant’s family physician, testified that the claimant’s respiratory issues and pre-existing diabetic and cardiac issues were aggravated by COVID-19. He further testified that the most likely exposure and explanation for the COVID-19 diagnosis was the workplace. He did concede, however, that he was unable to give that opinion to a reasonable degree of medical probability without having a further discussion with the claimant and obtaining information as to where it is likely he came into contact with the disease. Dr. Brown admitted to only having a brief conversation with the claimant about his contacts or use of personal protection equipment.
The employer had a defense medical examination of the claimant performed by Dr. Bacon, a Board Certified Internist specializing in infectious diseases, who was actually deposed by claimant’s counsel. Dr. Bacon testified that he believes the claimant acquired COVID-19 from the work environment and specifically believes that the claimant most likely contracted COVID-19 during the cafeteria exposure, where he was at lunch with many other employees. Like Dr. Brown, Dr. Bacon’s history obtained from the claimant was limited.
The employer’s evidence consisted of the testimony of its safety manager. This witness testified that March 28th was the earliest date for which any employee tested positive for COVID-19. The testimony also showed that between March 18th and April 15th, 124 employees were taken out of work and all of them later testified positive for COVID-19. However, the claimant was the only COVID-19 positive employee who worked in the box room on the night shift.
The Board assessed this case as being “incredibly fact-intensive.” It is significant that they found that the claimant’s testimony was not credible since, for instance, he said he never went out to the store, but his wife testified that he went to Walmart and both of them went to Royal Farms at least weekly. The Board concluded that the history provided to Dr. Bacon was not accurate or reliable regarding the alleged self-isolation by the claimant. Dr. Bacon also failed to ask the claimant when he had last dined outside the home or had contact with anyone outside of the home; therefore, he did not have complete or accurate information from which to give an opinion as to the source of the COVID-19 exposure. The Board, likewise, found that Dr. Brown had agreed he needed further information to provide an opinion within a reasonable degree of medical probability on the causation issue. The Board concluded that, without knowing the details of the claimant’s work and personal contacts, Dr. Brown was unable to provide a reliable opinion regarding how the claimant contracted COVID-19.
The Board understandably proceeded cautiously on the causation issue and stated that, since the evidence showed the claimant and his family had numerous contacts outside of his place of employment in the weeks leading up to his diagnosis, the claimant had not met the burden that it is more likely than not he was exposed to COVID-19 at his place of employment. The Board reasoned that the COVID-19 virus is prevalent throughout the United States and the world, so they believe the claimant could have contracted it in many ways and in many places. Finally, the Board stated that, since they conclude the claimant did not meet his burden of proof regarding the exposure, they do not need to address whether COVID-19 constitutes an occupational disease under the Act.
The upshot of this case is that there were too many loose ends in the evidence presented for the Board to find that the claimant’s COVID-19 condition was the result of workplace exposure.
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