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What's Hot in Workers' Comp

The Board Dismisses Petition that Sought Benefits for a Workplace COVID-19 Exposure for Lack of Jurisdiction, But Concluded that COVID-19 “Can Certainly Be a Compensable Occupational Disease in a Proper Situation.”

Cacchioli v. Infinity Consulting Solutions, (IAB No. 1501061 - Decided Mar. 9, 2022)

June 1, 2022

by Benjamin K. Durstein

The claimant tested positive for COVID-19 on June 19, 2020, and passed away on July 10, 2020, from what his surviving spouse alleges were COVID-related complications. The claimant was a 67-year-old, long-time employee who worked remotely during the beginning of the pandemic, but was returned to his office in June 2020. This was at a time when the Governor’s Executive Order either required or recommended that employers allow employees over 60 years of age to work remotely, if possible. It is alleged that there were no safety precautions at the claimant’s office and 50% of the workforce, including the claimant and co-workers with whom he was in close contact, contracted COVID from workplace exposure.

The claimant’s estate filed a lawsuit in Superior Court for wrongful conduct by the employer, which caused his death. His spouse also filed a petition before the Board, but the clear preference was to pursue the lawsuit. The court stayed the lawsuit in order to have the Board determine whether it had exclusive jurisdiction over the claim and, more specifically, whether COVID qualified as an occupational disease under the Workers’ Compensation Act.

At the hearing before the Industrial Accident Board, the claimant argued that his own petition should be dismissed for lack of jurisdiction. The Board agreed and reasoned that “in the limited office setting described in the petition in this case, there is no assertion that Claimant’s occupation produced a hazard of contracting COVID-19 distinct from and greater than the hazard attending employment in general.” However, the Board further advised that COVID-19 “can certainly be a compensable occupational disease in a proper situation.”

The IAB decision was not appealed and it is my understanding that the parties are currently attempting to negotiate a settlement of the Superior Court lawsuit. As of now, no decision of the Industrial Accident Board has found a fact pattern where COVID-19 constituted a compensable occupational disease, but there are multiple COVID-19 cases in litigation.


 

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