Covid-19 Compensability Update: Board Denies First Claim Litigated in Georgia
By: Jeff Stinson
In November 2020, I recorded a webinar about occupational disease in Georgia. At that time, there were less than 14 million reported cases of COVID-19 in the United States. As I write this article, we have now had nearly 80 million confirmed cases, and more than likely by May 1, we will reach the once unfathomable number of 1 million deaths in our country from this terrible disease.
When I recorded my presentation, I stated that I thought it would be difficult for someone to prevail on a workers’ compensation claim for COVID-19 in Georgia in light of the stringent occupational disease standard. Although anyone who handles workers’ compensation claims in Georgia, whether as an attorney, adjuster or risk management professional, has encountered cases where COVID-19 has been raised, until very recently no cases had been tried before the Board on the compensability of COVID-19.
On December 29, 2021, Judge Sharon Reeves issued the first decision in a workers’ compensation claim in Georgia in which the compensability of COVID-19 was litigated. Fortunately for those on the employer and insurer side of workers’ compensation in Georgia, the claim was denied, which should provide some further confidence that similar claims may not be successful.
The case heard by Judge Reeves was an interesting yet sad case. The case was actually brought by the widower of the employee, who alleged his wife contracted COVID-19 at work and later died as a result. The deceased employee worked in the control room at a jail and was reportedly exposed to an inmate who tested positive. The widower testified that his wife was only in contact with himself, their son and anyone she encountered at work. However, he also testified she had sought medical care for unrelated reasons, went to the gas station and got to-go food from restaurants. Evidence presented at the hearing showed the deceased employee also made 18 in-store trips to various retail stores, including grocery and drug stores. Representatives from the employer testified they had a mandatory mask policy and the deceased employee had little or no contact with inmates.
Although claims for a disease acquired at work are typically brought under the occupational disease statute, O.C.G.A. § 34-9-280, the claimant in this case attempted to recover under the theory that this was an occupational accident, and there was a specific event in which the deceased employee contracted COVID-19. Although it is not clear from the Award, it would seem as if the claimant’s attorney was attempting to circumvent the stringent requirements for a compensable occupational disease by pursuing this strategy.
In denying the claim, Judge Reeves appears to have considered the requirements for a compensable occupational disease, despite the claimant’s theory of recovery. Judge Reeves found that it was “equally likely Employee contracted the virus through community spread” and that the “circumstantial evidence fails to establish that it is more probable the Employee contracted the virus in the course of her employment than from some other source in the community.”
This decision is almost certainly going to be appealed and thus Judge Reeves’ decision may not be the end of the story. However, it reinforces what has long been my belief, as well as the beliefs of other attorneys in our firm: it is going to be very difficult for a claimant to prevail on a claim for COVID-19 under the Georgia Workers’ Compensation Act. To be clear, it is not impossible, but there likely needs to be a very unique set of circumstances in place in order for a claimant to have a viable chance at prevailing.
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