Is a COVID-19-related death compensable under workers’ compensation law? The Arizona Court of Appeals ruled that it can be as long as the legal requirements of compensability are met.
The court’s decision in a case involving a worker who died from COVID-19 due to exposure at work affirmed an administrative law judge’s ruling that granted workers’ compensation benefits to the widow.
Employees continued to work in office during pandemic
In October 2020, Kenneth Zerby was working as a design engineer for Western Millwork. He typically worked four or five days a week in Western’s offices.
When the COVID-19 pandemic began, Western kept its employees working in the office and established safety guidelines based on guidance from the U.S. Centers for Disease Control and Prevention. These guidelines included:
- requiring employees to wear face masks anytime they weren’t in their own office
- promoting social distancing, and
- requiring employees to stay home if sick or exhibiting COVID-19 symptoms.
Employees experiencing COVID-19 symptoms were instructed to get tested and stay home until they received the results.
Worker took precautions because of prior medical issues
Zerby, like many of his co-workers, typically kept his office door closed while working. He felt he was at a heightened risk and was nervous about contracting COVID-19 because of a prior kidney transplant and being diagnosed as pre-diabetic. For these reasons, Zerby took precautions by wearing a mask, social distancing and limiting the amount of time he spent in public.
On Oct. 7, 2020, Zerby underwent a regular medical examination and was deemed to be in good health. He drove to Colorado by himself on Oct. 9, 2020, and spent the night at a hotel so he could unlock a storage unit for movers. He was still healthy when he returned home.
From Oct. 12 through Oct. 14, 2020, Zerby returned to work. He took time off on the following two days to move into a new residence. His wife directed the movers while he observed from a safe distance.
Exposed to sick co-workers inside and outside of workplace
While Zerby was working on Oct. 12, 2020, a co-worker who was visibly ill went to Zerby’s office and had a conversation with him. The co-worker was out sick for a few days following the conversation and returned to work before receiving the results of a COVID-19 test. The co-worker eventually received a positive result and informed Western.
On Oct. 17, 2020, Zerby’s supervisor and the supervisor’s wife and brother stopped by to visit Zerby and his wife at their new home. Later the same day, Zerby and his wife had dinner outside at a restaurant with another co-worker, who tested positive for COVID-19 one week later.
Zerby woke up on the night of Oct. 18, 2020, with a fever. He felt well enough to go to work the next morning. That’s when he learned that the co-worker he’d spoken to in his office had COVID-19. Zerby took a COVID-19 test the next day, which came back positive. His condition deteriorated rapidly, and he was hospitalized on Oct. 27, 2020. He died about two weeks later.
Judge rules worker’s COVID-19-related death compensable
After his death, Zerby’s wife filed a workers’ compensation claim, alleging that her husband contracted COVID-19 from a co-worker while at work. Western and its insurer, Cincinnati Insurance Company, denied the claim.
At a hearing in front of an administrative law judge, medical experts for both parties argued over the characteristics of COVID-19 and the likelihood of Zerby’s exposure at work.
The judge found in the wife’s favor, “determining that Zerby contracted COVID-19 in the course and scope of his employment leading to his death.”
This finding was “based on the fact and medical testimony provided, that Zerby ‘sustained a sufficient special exposure to COVID-19 on Oct. 12, 2020 in excess of that of the commonalty,’ meaning more than the general populace.”
The judge found that the wife’s medical expert testimony was “more probably correct and well-founded where it differs from” Western’s medical expert testimony.
Court: COVID-19 can constitute ‘accident’ under comp law
On review with the Arizona Court of Appeals, Western argued that COVID-19 should be treated like valley fever – a respiratory disease caused by fungal spores so common they can’t be accurately traced. Because it is so difficult to trace, valley fever isn’t covered under workers’ compensation laws.
The appeals court disagreed, finding that “COVID-19 – like pneumonia, Lyme disease, allergies, and hepatitis – can constitute an ‘accident‘ under the workers’ compensation statute, even if COVID-19 does not qualify as an occupational disease.”
Unlike valley fever, COVID-19 can be traced to specific people, according to the appeals court. That means COVID-19 can’t be treated in the same manner as valley fever, despite the fact it was essentially everywhere when Zerby contracted the disease.
That led the court to rule that death or injury from COVID-19 is compensable if the statutory requirements for establishing workers’ compensation are met.
