Exclusive remedy: Workers’ Compensation Act bars COVID-19 death claim

A wrongful death suit alleging that workplace conditions caused a grocery store employee to die of COVID-19 was barred by the Workers Compensation Act, the Court of Appeals of Virginia has held.

The circuit court said workers’ compensation was the exclusive remedy for the claim. On appeal, Judge Frank K. Friedman rejected the store’s “all or nothing” analysis but found that dismissal was warranted.

“[The decedent’s] 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.” Friedman wrote. “Accordingly, we agree with the circuit court that the exclusivity bar of the Workers’ Compensation Act applies to this claim.”

Friedman was joined by Chief Judge Marla Graff Decker and Judge Richard Y. AtLee Jr. in Taylor v. Posey, et al. (VLW 023-7-317).

COVID-19 death

Ricky Taylor was employed by Giant, a retail grocery store chain. In March 2020, the Virginia governor deemed businesses like Giant to be essential during the pandemic. Ricky contracted COVID-19 in April 2020; he died the following month from complications arising from COVID.

As administrator of her husband’s estate, Brenda Lee Taylor sued Giant for wrongful death. Because Ricky quarantined at home when not working, Brenda claimed he must have contracted COVID-19 at Giant.

Per the complaint, Ricky was “highly vulnerable” to catching COVID-19 but Giant let customers shop without masks or distancing, reprimanded Ricky for asking customers to do so, failed to sanitize the store and didn’t monitor employee COVID infections.

Further, Taylor said Giant prevented Ricky from wearing a mask and, when given a doctor’s note, said he could only wear a mask in a back room or be transferred.

Agreeing with Giant that workers’ compensation was the administrator’s exclusive remedy, the circuit court dismissed the case.

Legitimate claim

“Determination of whether a tort claim is encompassed by the Act requires analysis of whether the allegations meet the requirements of a workers’ compensation claim as set forth in Code § 65.2-307(A),” Friedman explained.

But whether an employee’s injury fell within the purview of the act and whether the claim is compensable are different questions.

“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.”

— Judge Frank K. Friedman

“In other words, courts analyzing the question are not asked to determine whether the injury actually merits a workers’ compensation award, but instead we must consider whether the facts, as alleged, would demonstrate a legitimate workers’ compensation claim … such that the exclusivity bar would apply,” the judge said.

Under the act, “injury” means “only injury by accident arising out of and in the course of the employment or occupational disease.” In general, occupational disease “means a disease arising out of and in the course of employment.” It doesn’t include an “ordinary disease of life to which the general public is exposed outside of the employment.”

‘Occupational disease’

Friedman pointed out the allegation that COVID-19 is an ordinary disease of life and that nothing in the complaint suggested 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,” the judge wrote.

Under the act, an ordinary disease of life may qualify as a compensable disease if it arose “out of and in the course of employment” and must “follow[] as an incident of occupational disease.”

Additionally, it must either 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.”

Taylor argued that her claims didn’t fit any of those factors.

Relying on the General Assembly’s 2021 amendment of the act entitling health care workers, first responders and correctional officers to a presumption of coverage for COVID-19, Giant said it would be illogical for the act to not cover all COVID-19 cases.

Giant reasoned that because any ordinary disease of life could be covered under the act, the complaint’s recognition of COVID-19 as an ordinary disease of life automatically triggered the act’s exclusivity provisions.

“Giant’s ‘all or nothing’ logic with respect to coverage for COVID-19 cases is generally inconsistent with Virginia workers’ compensation analysis and is ‘particularly unavailing’ in light of Lopez [v. Intercept Youth Services, Inc.] and Middlekauff [v. Allstate Ins Co.] …,” Friedman noted. “In short, the case law does not support the employer’s categorical approach to COVID-19 and, instead, instructs courts to undertake a fact-specific analysis of the complaint to determine whether the exclusivity provision should apply.”

‘Recognizable link’

Here, the court found the allegations supported a legitimate workers’ compensation recovery based on the language requiring the disease to be “characteristic of the employment” and “caused by conditions peculiar to such employment.”

While that language has been “construed somewhat broadly,” Friedman said the court has rejected an employer’s suggestion that it foreclosed recovery for ordinary diseases except in the most “egregious” circumstances.

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

Giant purportedly subjected Ricky to these conditions despite a doctor’s note and knowledge of his vulnerabilities.

“As the Supreme Court observed in Lopez, ‘[a]n employer’s refusal to protect employees from a known, dangerous condition on the premises can also create a peculiar risk under some circumstances,” Friedman wrote.

Because Taylor’s illness could be seen to have followed as a natural incident of his work, Friedman said the exclusivity bar of the act applied and agreed that the circuit court properly dismissed Taylor’s claim.