Workers’ comp is exclusive remedy for COVID-19 claim

Where appellant sued in circuit court for wrongful death, alleging that workplace conditions caused her decedent to contract a fatal case of COVID-19, workers’ compensation is the exclusive remedy for the claim.

Background

Appellant is the administrator of her deceased husband’s estate. She “alleged that her husband served as a grocery manager and that he contracted a fatal case of COVID-19 while working at Giant.

“In response, the defendants filed a plea in bar arguing that the circuit court lacked subject matter jurisdiction over the case because, under Code § 65.2-307, the administrator’s exclusive remedy was governed by the Workers’ Compensation Act.

“The circuit court agreed with the employer and held that the claims fell within the exclusive purview of workers’ compensation. Accordingly, the court sustained the employer’s plea in bar and dismissed the complaint.”

Discussion

“Under definitions set out in the Workers’ Compensation Act, Code § 65.2-101, ‘[i]njury’ means ‘only injury by accident arising out of and in the course of the employment or occupational disease.’

“This appeal focuses on whether Taylor suffered a disease that should be treated as a covered illness under the Act.

“The term ‘occupational disease’ typically ‘means a disease arising out of and in the course of employment’ but does not include an ‘ordinary disease of life to which the general public is exposed outside of the employment.’ …

“The administrator contends that COVID-19 is an ordinary disease of life – and nothing in her pleadings suggests that Taylor contracted an ‘occupational disease.’

“Nonetheless, even an ‘ordinary disease of life’ can be treated as a covered ‘occupational disease’ under the Act in appropriate circumstances.

“For example, asthma might not generally be considered an occupational disease; however, if a worker is subjected to a release of noxious fumes which triggers an asthma attack, the injury could be covered by workers’ compensation. …

“Under Code § 65.2-401, for an ordinary disease of life to qualify as a compensable disease, the disease must have arisen ‘out of and in the course of employment’ and, in addition, it must ‘follow[] as an incident of occupational disease,’ be an ‘infectious or contagious disease contracted’ through employment in health care or as emergency rescue personnel, or be ‘characteristic of the employment and … caused by conditions peculiar to such employment.’”

Decision

The court must decide “whether the complaint alleges facts that would support a finding that Taylor’s condition qualified as a covered disease under Code § 65.2-401. …

“Here, we conclude based on the pleadings that the facts, as alleged, do make out a claim that would support a legitimate workers’ compensation recovery such that the exclusivity bar does apply.

“We reach this conclusion based on the third prong of Code § 65.2-401(2). The language of this section requiring the disease to be ‘characteristic of the employment’ and ‘caused by conditions peculiar to such employment’ has been construed somewhat broadly. …

“The facts alleged here are that ‘[a]fter the outbreak of the COVID-19 pandemic, Mr. Taylor remained quarantined at home with his wife, except for when he was at work at Giant.’

“The complaint asserts that, as a condition of employment, Taylor was surrounded by unmasked customers and co-workers who were not socially distancing. He was prohibited from wearing a mask as he encountered these customers and co-workers as part of his job.

“He was, in fact, reprimanded for suggesting to customers that they wear masks and observe social distancing protocols. Even after he provided a doctor’s note supporting his need to wear a mask when dealing with the public, Giant balked.

“Taylor was not only left to work in these perilous conditions, but he was actively prevented from taking action himself to reduce the risk.

“Ultimately, at the core of the administrator’s complaint she alleges that, based on Giant’s actions, Taylor was left unmasked and unprotected in a closed space where he was forced to be in contact with a steady stream of infected people who were, themselves, unmasked and failing to observe social distancing.

“In our view this does present a ‘recognizable link’ between the disease and the claimant’s work environment. …

“Moreover, Giant allegedly subjected Taylor to these conditions despite his doctor’s note and knowledge of his vulnerabilities. …

“The case before us involves a long list of workplace conditions that, taken as true, were alleged to be the direct cause of Taylor’s illness and death.

“His illness can be seen, if the administrator’s allegations are proved, to have followed as a natural incident of his work as a result of the exposure occasioned by his work conditions.

“Accordingly, we agree with the circuit court that the exclusivity bar of the Workers’ Compensation Act applies to this claim. Thus, the circuit court properly dismissed the administrator’s complaint.”

Affirmed.

Taylor v. Posey, et al., Record No. 1042-22-4, Aug. 8, 2023. CAV (unpublished opinion) (Friedman) From the Circuit Court of Fairfax County (Devine). Alan Shachter for appellant. John H. Carstens for appellees. VLW 023-7-317, 12 pp.