Superior Court overturns Board’s decision that had denied claimant’s petition alleging he contracted COVID-19 from workplace exposure.

In January 2021, we reported on the Board’s December 31, 2020, decision that was the first Delaware decision involving a claim for COVID-19. The Board had denied the claimant’s petition by finding that, while it was agreed the claimant had been diagnosed with COVID-19 and was medically unable to work, the claimant had, nevertheless, failed to meet his burden of proof. Both medical experts had testified that the claimant did have COVID-19. Dr. Bacon, the employer’s expert, actually testified that, in his opinion, the claimant had acquired COVID-19 from the work environment, most likely in the employer’s cafeteria where he was at lunch with many other employees. However, the Board rejected the claimant’s testimony as not being credible, since there were a number of inconsistencies, and further determined that the history of other possible exposures and the claimant’s self-isolation provided to Dr. Bacon was not accurate or reliable, thereby rendering his medical opinion flawed. 

On the claimant’s appeal, the Superior Court has now reversed and remanded the Board’s decision, finding it is not supported by substantial evidence nor free from legal error. The court stated that all expert testimony on causation had pointed in one direction, since both experts agreed that the claimant contracted COVID-19 from his workplace exposure, with their levels of certainty ranging from “no doubt” to a concurring agreement. The court took the Board to task for rejecting unrebutted expert testimony and instead relying on its own purported expertise and extrajudicial knowledge regarding the spread of COVID-19. They also criticized the Board for relying upon its determination that the claimant had additional contacts with the outside world and additional potential exposure to the virus from his daughter, despite a complete absence of any support in the record for those purported facts.

The court further based its reversal on the Board’s committing legal error by imposing an incorrect burden of proof on the claimant. The court stated that the correct burden is whether or not it is more likely than not that the claimant contracted COVID-19 from his workplace. But they stated that the Board, in essence, made the claimant prove beyond a reasonable doubt that he had contracted COVID-19 from workplace exposure, which is the wrong standard. The claimant was not required to negate all possible non-workplace exposures to COVID-19 to meet his burden. Rather, the court stated the claimant was only required to show that it was more likely than not that he had contracted COVID-19 from the workplace as compared to his outside activities.

However, the court did not agree with the claimant that an outright reversal of the Board’s decision was appropriate. Instead, they reversed and remanded the case for further proceedings. These proceedings will include Dr. Bacon’s testimony as to whether additional relevant contacts by the claimant, of which the claimant may not have been aware, would alter his opinion on causation and whether  the Board should consider only social contacts by the claimant that are supported by substantial evidence and should not speculate as to other possibilities. Also, they should weigh the relevant contacts in light of the unrebutted expert testimony. The court further noted that  if the Board finds that the claimant has met his burden to show that he contracted COVID-19 from workplace exposure, they must determine whether or not COVID-19 is an occupational disease. 

We will stay tuned and keep you updated for the next chapter on this important issue.
 

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