Benjamin K. Durstein

Mr. Fowler alleged that he suffered a compensable COVID-19 exposure while working as a “boxer” at a poultry processing plant. The Industrial Accident Board determined that the claimant carried his burden to prove that he more likely than not contracted COVID-19 in the cafeteria at work. However, under the Air Mod and Anderson analyses, in order to qualify as a compensable occupational disease, a claimant must show that the COVID-19 infection “resulted from the peculiar nature of Mr. Fowler’s employment,” meaning the job had “a hazard distinct from and greater than the hazard attending employment in general.” Mr. Fowler did not satisfy those requirements, and the petition was denied.

On appeal, the Delaware Superior Court further explained that the evidence showed that the employer’s cafeteria presented a greater hazard than that attending employment in general. However, the hazard was not distinct from that attending employment in general.

The Delaware Supreme Court followed that same line of reasoning and affirmed the decisions below. The court conceded that the employer’s cafeteria was a high-risk environment and essential workers, at the time, were at a higher risk than the general population. But the evidence to show that the hazard was distinct from employment in general was not sufficient. The claimant attempted to prove that COVID-19 was peculiar to the poultry factory work by referencing congressional reports showing the prevalence of COVID-19 in meat factories and the underreporting of meat industry companies when it came to COVID-19. However, the court noted that the studies neither referenced this employer as a source for that data nor explained what specifically about working in the meat industry caused COVID exposure, besides being in crowded places and in close proximity, like many other jobs. The court rejected the claimant’s last argument that the Board ignored that the exposure could have happened in both the box room and the cafeteria at work. The decision was affirmed. 

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