What's Hot in Workers' Comp
On remand, the Industrial Accident Board concluded that a COVID-19 workplace exposure at a poultry processing plant did not qualify as a compensable occupational disease.
Fowler v. Perdue, Inc., (IAB No. 1501167) (Dec. 28, 2022)
February 1, 2023
Mr. Fowler alleged that he suffered a compensable COVID-19 exposure at work. After an initial Industrial Accident Board hearing, the Board denied the claimant’s petition because it did not find his testimony about other potential exposures or histories provided to the doctors to be credible. The Superior Court reversed and remanded the decision because the Board had rejected unrebutted medical expert testimony and had improperly relied on its own expertise and extrajudicial knowledge of facts not in the record.
Dr. A. Bacon provided additional medical testimony at the remand hearing. Based on that testimony, the Board determined that the claimant carried his burden to prove that he more likely than not contracted COVID-19 at work. However, the claimant did not prove that his occupation attached a hazard of COVID-19 greater than that attendant to employment in general. Specifically, the Board reasoned that: (1) the cafeteria setting (where the claimant alleged his exposure occurred) was no different than anywhere else people gather to eat and drink at work or otherwise; (2) there was nothing about the poultry processing plant or industry to make the risk unique or different; (3) all essential workers were at a higher risk at the time of the exposure than the general population, but this was no different than any other work environment; (4) every employer of essential workers will have an environment, such as the cafeteria, that creates risks; and (5) there was no testimony that the 4.3% infection rate at Perdue was higher than anywhere else.
The Board’s decision is again on appeal to the Superior Court.
What’s Hot in Workers’ Comp, Vol. 27, No. 2, February 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.
