Supermarket Manager’s Widow Must Pursue Va. WCA as Sole Remedy for Death Claim

Landover, MD (WorkersCompensation.com) – In Virginia, an occupational disease may include a disease that impacts the public in general if the employee’s development of the disease can be linked to the specific nature of his work conditions.

In Taylor v. Posey, No. 1042-22-4 (Va. Ct. App. 08/08/23, unpublished), though it was the height of the COVID-19 pandemic, a grocery store manager’s employer ordered him not to wear a mask at work, even after his doctor recommended he do so. The employer also allegedly refused to require customers to wear masks or stand six-feet apart.

The manager, who allegedly had medical conditions that made him especially vulnerable to COVID-19, was infected with the virus at work and died from complications related to the disease.

His wife, as the representative of the manager’s estate, sued the store for negligence. A trial court dismissed the case on the basis that the Workers’ Compensation Act was the wife’s exclusive remedy.
On appeal, the wife argued that this case did not fall within the WCA because COVID-19 is an ordinary disease of life anyone in the public could be exposed to.

The appeals court explained that the WCA provides the sole remedy against employers for employees injured within its scope. To fall within the scope of the WCA, an injury must occur by means of an accident arising out of and in the course of employment or occupational disease.

The term "occupational disease,” however, generally does not include an ordinary disease of life to which the general public is exposed outside of the employment, unless the disease:

(1) Follows as an incident of occupational disease;
(2) Is an infectious or contagious disease contracted through employment in health care or as emergency rescue personnel; or
(3) Is characteristic of the employment and caused by conditions peculiar to such employment.

Here, the court held, the manager’s condition fell into the third category and therefore was covered by the WCA.

Referencing the wife’s complaint, the court pointed out that, as a condition of employment, the store manager was surrounded by unmasked customers and co-workers who were not socially distancing. Moreover, the employer prohibited the manager from wearing a mask as he encountered these individuals as part of his job.

“He was, in fact, reprimanded for suggesting to customers that they wear masks and observe social distancing protocols,” the court wrote. In short, the court observed, he was left unmasked and unprotected in a closed space in which he was forced to be in contact with a steady stream of potentially infected people who were, themselves, unmasked and failing to observe social distancing.

This showed there was a recognizable link between the manager’s COVID-19 and his work environment. Because the manager’s illness followed as a natural result of his work conditions, the court held that it fell within the coverage of the WCA, including the act’s exclusivity provision.

Accordingly, workers’ compensation was the spouse’s sole remedy.

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