Nurse Showed COVID Was Work-Contracted, West Virginia Supreme Court Rules

The West Virginia Supreme Court has ruled 3-2 that a prison nurse is entitled to workers’ compensation benefits for her COVID-19 disease because she provided sufficient evidence that she contracted it in her workplace and not outside of work.

Brittany Foster did not have to prove that as a health care worker she was at greater risk of contracting COVID-19 in the workplace; rather her evidence that she did actually contract it from prisoners and co-workers was enough. The state’s high court overruled an Intermediate Appeals Court (ICA) that had denied the claim because it said she did not prove she was engaged in a profession having a statistically higher risk of COVID-19 infection in the workplace than outside of the workplace.

Foster’s workers’ compensation claim, based on her contention that she contracted an occupational disease, COVID-19, was found by the Workers’ Compensation Board of Review to be compensable. However, the ICA reversed the board’s decision, holding that a single medical risk factor study submitted by PrimeCare Medical of West Virginia, Inc. was dispositive of the case because Foster failed to disprove the study’s conclusion that health care workers’ exposure to COVID-19 in the workplace did not result in a higher occurrence of illness than that experienced by individuals who did not work in the health care field.

PrimeCare further argued that as a matter of law COVID-19 cannot be a compensable occupational disease because contracting COVID-19 is “a hazard to which workmen would have been equally exposed outside of the employment.”

The high court found that the ICA’s analysis was “clearly erroneous.” The justices said that statistical evidence as to the incidence of workplace-related risk vis-a-vis outside risk is relevant, but not dispositive, in determining whether the claimant’s exposure “came from a hazard to which workmen would have been equally exposed outside of the employment.” In deciding compensability, any such evidence may be considered, together with the parties’ evidence tending to prove or disprove that the claimant in fact contracted COVID-19 from exposure in the workplace, the Supreme Court opinion explained.

Under the West Virginia workers’ compensation law, a claim for work-related injury, disease, or death caused by or arising from COVID-19 may be held compensable, notwithstanding that workers generally were exposed to the disease outside of their employment, when a preponderance of the evidence establishes that the claimant contracted the disease in the course of and resulting from his or her covered employment and further establishes the other elements of the test set forth in the West Virginia code.

The West Virginia code includes a six-factor test that provides that occupational disease means a disease incurred in the course of and resulting from employment. The ICA and PrimeCare argued that Foster had failed to satisfy the fourth factor in the six-factor test that says that a disease is considered to have been incurred in the course of employment only if it is apparent to the rational mind, upon consideration of all the circumstances, that it “does not come from a hazard to which workmen would have been equally exposed outside of the employment.”

However, the high court dismissed ICA’s analysis as erroneous and concluded that an analysis of whether an occupational disease resulted from a claimant’s workplace exposure to COVID-19 is no different than the analysis employed in every case to determine causation, and hence compensability: whether the claimant’s evidence, including medical testimony and records, preponderates over that submitted by the employer.

The majority opinion written by Chief Justice William Wooton was joined by Justices Beth Walker and Charles Trump IV.

The dissenting opinion by Justice Tim Armstead was joined by Justice Haley Bunn. The dissent argued “because the clear purpose of the statute is to limit such claims, it is crucial that a claimant satisfy all six-factors included in the statute.” The dissent concluded that Foster had offered no evidence to address factor number 4 and that the majority “glosses over the purpose of this statutory provision, and, in doing so, potentially opens the door to an influx of claims arising from everyday diseases of ordinary life.”

Case Background

Foster, a licensed practical nurse working at the Southern Regional Jail, alleged that she contracted COVID-19, and had myriad complications thereafter, as a result of work-related exposure to both inmates and correctional/administrative personnel who tested positive for the disease. According to Foster, she was exposed during a July 30, 2020, staff meeting as well as when administering COVID-19 tests to inmates and staff.

It is undisputed that Foster did contract COVID-19 and was hospitalized for 15 days. Additionally, it is undisputed that during the relevant time. frame, Foster had come into contact with 20 individuals at work, both inmates and colleagues, who tested positive for the disease.

PrimeCare disputed that any, some, or all of the 20 work-related exposures caused Foster to contract COVID- 19, arguing that she may have also been exposed during the course of two non-work-related outings: a car trip to a drive-through zoo with her mother, father, and two nieces, or a trip to the emergency room. In this regard, however, Foster presented undisputed evidence that all of the other individuals in the car during the closed-window trip later tested negative for COVID-19, and that she was actually tested during her emergency room visit, with a negative result.

The ICA and PrimeCare maintained Foster did not satisfy condition number 4 because she did not disprove the risk factors study, Yet, the high court noted, the ICA failed to consider the review board’s exhaustive analysis of the myriad weaknesses of the study.

In essence, the ICA held that West Virginia code required Foster to prove that health care workers are at a higher risk of contracting COVID-19 from workplace exposure, and accordingly evidence supporting her claim that she in fact contracted the disease from workplace exposure was irrelevant; thus, she failed to meet the requirements of the fourth prong of the statutory test, and that was the end of the inquiry, according to the high court opinion.

In overruling the ICA, the Supreme Court said “it defies logic” to hold that because Foster was not exposed to a statistically higher risk of workplace exposure as a result of her profession, no amount of proof could satisfy her statutory burden to prove that in fact she contracted COVID-19 from known exposures at work. Rather, the court stressed, determining whether a disease is considered to have been incurred in the course of employment is to be made “upon consideration of all the circumstances and in the absence of known risk a claimant may still prove his or her case but without the benefit of a rebuttable presumption of causation.”

The West Virginia ruling comes about a month after the Massachusetts Supreme Court upheld workers’ compensation benefits for a utility worker over the protest of his employer’s insurer Travelers. Travelers argued that the risk of contracting COVID-19 was not inherent in the nature of the lineman’s job. But the Massachusetts court said the insurer failed to reasonably consider how the pandemic changed the working conditions for the lineman, including the fact that the state had declared a state of emergency and the lineman was one of the few “essential workers” who continued to work.

Topics Legislation Virginia COVID-19