A three-judge panel sided with the widow of an employee of Western Millwork who died of COVID-19, ruling that “death or injury from COVID-19 is compensable where the statutory requirements for workers’ compensation are met.”

Judges Michael S. Catlett, Paul J. McMurdie and Michael J. Brown upheld a ruling that Kenneth Zerby’s case of COVID-19 could be traced back to his workplace with a reasonable amount of certainty, given the information available at the time. Western Millwork and its insurer, Cincinnati Insurance Co., argued that by the time Zerby contracted the virus, it was so widespread that he could have contracted it elsewhere, including during activities during his personal time.

Per a judge’s opinion filed on September 21, “contracting 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.” In support of their opinion, they pointed to a case from 1968, Montgomery v. Industrial Commission, in which the claimant was able to demonstrate that his employment subjected him to an increased risk of contracting Lyme disease.

Background

Zerby was a designer engineer for the Phoenix-based company and worked “four or five days a week” even after the pandemic started.

According to the judges’ opinion, Western Millwork “kept its employees working at the office regularly, but established safety guidelines based on Centers for Disease Control and Prevention (CDC) guidance,” including social distancing and requiring employees to wear a face mask when not in their own offices. The company’s guidelines instructed employees who were feeling unwell to remain at home until a COVID-19 test could be administered and the results returned. Zerby, who was taking immunosuppressants and had been diagnosed as pre-diabetic, felt “he was at a heightened risk” and followed the precautions recommended by his employer and the CDC, including wearing a mask, social distancing, and limiting his amount of time in public.

Zerby’s widow, Diane, noted that at the beginning of October 2020, Zerby’s doctors had given him a clean bill of health and after a short trip with minimal contact with others, he remained healthy.

In mid-October 2020, one of Zerby’s coworkers reported to work, refrained from wearing a mask, and had a conversation with Zerby. Though the court summary of the case indicates it is unclear whether the conversation between Zerby and his ill coworker took place with Zerby’s office door open or through a closed door, a “supervisor testified the co-worker was visibly ill and did not feel well.” The coworker called out sick the next two consecutive days – two of which Zerby was in the office – and returned on the third day, before results of a COVID-19 test were available. Zerby was out of the office when the coworker returned, a planned absence related to a personal matter.

The coworker later reported that the test results were positive.

The Saturday immediately following Zerby’s scheduled absence from work “Zerby’s supervisor, along with the supervisor’s wife and brother, visited Zerby and wife; the group talked inside and outside Zerby’s home,” court documents said. Later, Zerby and his wife “ran a personal errand and were joined by another couple. After, the group had a 90-minute dinner outside at a restaurant.” The next evening, Zerby began feeling ill and shortly thereafter learned of his coworker’s positive COVID-19 test.

According to court documents, Zerby tested positive for COVID-19 on or about October 20 and on October 23 “an emergency room doctor ordered a chest x-ray and recommended that Zerby return to the emergency room immediately for any worsening or new symptoms.”

Zerby was hospitalized on October 27, 2020, and died on November 25, 2020.

Ruling

When Diane Zerby filed a workers’ compensation claim, Western Millwork and Cincinnati Insurance Co. denied it. In turn, she requested a hearing with an Administrative Law Judge (ALJ), during which a medical expert testified that “an individual with COVID-19 is contagious two days before symptoms appear. He opined that the risk of contracting COVID-19 from an infected individual varies based on proximity and length of exposure.”

The medical expert went on to testify that Zerby “likely contracted COVID-19 from an infected co-worker during a conversation on October 12, 2020, and not from the dinner party Zerby attended on October 17.”

A medical expert for Western Millwork and its insurance company refuted this, testifying that, “unless there is coughing or sneezing, one requires ‘about 15 minutes of contact, direct contact with a person, and you need to be fairly close.’” According to the medical expert, the CDC says contact must be under six feet to contract the disease. For this reason, “Zerby could have been exposed to the virus any time after October 4,” the expert alleged.

The Administrative Law Judge ruled that, following a careful review of the testimony of the medical experts, the testimony by Diane Zerby’s medical expert “is more probably correct and well-founded where it differs from employer’s medical testimony” and that “Zerby’s COVID-19 illness and death arose from and was related to his employment to a reasonable degree of medical probability.”

Western Millwork and Cincinnati Insurance requested a special action review, placing the case before Judges Catlett, McMurdie and Brown. The judges, collectively, point out that no one was arguing that COVID-19 is an “occupational disease,” which would be covered by workers’ compensation, and doesn’t represent “the ordinary diseases to which the general public is exposed,” which would not be covered. Though “the legislature has enacted statutory provisions governing workers’ compensation claims for specific communicable diseases,” the judges opine that COVID-19 had not been addressed by the state legislature yet, “leaving A.R.S. § 23-1021 to supply the governing standard.” For Diane Zerby to obtain compensation, her husband must have been injured or killed by an “accident arising out of and in the course of his employment,” which the judges identified as, “the statutory phrase at the crux of this case.”

Ultimately, the judges opined that Zerby’s widow is entitled to compensation, because, “This is a mixed risk case. Zerby’s risk of work-related exposure from interacting with potentially infected co-workers in person combined with his underlying medical condition resulted—legally and medically—in his death from COVID-19.”

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