Ariz. Worker’s Death from COVID Ruled to Have Arisen from Job

Phoenix, AZ (WorkersCompensation.com) -- While much of life and work has returned to what it looked like before 2020, there will always be reminders of how severe the pandemic was at its height.

For example, in Western Millwork v. Industrial Commission of Arizona, No. 1 CA-IC 22-0038 (Ariz. Ct. App. 09/21/23), a worker contracted a fatal case of COVID-19 on the job despite precautions like social distancing, speaking through closed doors, and wearing masks.

A design engineer for a manufacturer died from COVID-19. At the beginning of the pandemic, the manufacturer kept its employees working at the office regularly but established safety guidelines based on CDC guidance, which included:

+ Requiring face masks when not in one's office.
+ Promoting social distancing.
+ Requiring employees to stay home if sick or exhibiting COVID-19 symptoms.
+ Instructing employees to get tested and stay home until they received the results.
+ Employees keeping their office door closed while working.

Due to a kidney transplant more than 15 years earlier, the engineer took immunosuppressants. The engineer also had a pre-diabetes diagnosis. Believing that he was at a heightened risk, the engineer was nervous about contracting COVID and wore a mask, socially distanced, and limited his amount of time in public.

While in his office, the engineer met with a coworker who was not wearing a mask and with whom he had a conversation that latest "anywhere from no more than a minute" to less than 10 minutes.

Allegedly, the conversation took place through a closed door and with the engineer's chair positioned six feet from the door. According to a supervisor, at the time of the conversation, the other employee "was visibly ill" and did not feel well. Over the next two days, this employee called out sick and took a COVID test but returned to work before receiving the results. Eventually, this employee received a positive result.

Several days later, the engineer and his wife ran an errand and had dinner with another couple. One member of the dinner party, who was also the engineer's coworker, tested positive for COVID nearly a week later.

Following the dinner, the engineer awoke in the night with a fever. Although he felt well enough to go to work the next day, the engineer took a COVID test, which came back positive. The engineer's condition deteriorated, resulting in hospitalization and eventually death within a month.

The engineer's wife filed for a workers' compensation claim, and the employer and its carrier denied it. The wife requested a hearing with an administrative law judge.

At the hearing, the wife's medical expert testified that the engineer likely contracted COVID from the other employee with whom he spoke at the office. On the other hand, the employer's expert disagreed, opining that the engineer did not contract COVID from the office conversation at issue.

The ALJ found in the wife's favor, concluding that the engineer “sustained a sufficient special exposure to COVID-19 [from the office conversation] in excess of that of the ‘commonalty,’ meaning more than the general populace." Thus, the ALJ determined that the engineer was killed by an accident that arose out of and in the course of his employment.

The employer appealed to court.

Although Arizona has enacted legislation governing workers' compensation claims for communicable diseases, including HIV, MRSA, spinal meningitis, and tuberculosis, the state has not enacted a statute governing workers' compensation claims for COVID-19. As a result, for a worker (or their surviving spouse) to recover, the injury or death must stem from an accident arising out of and in the course of the worker's employment.

Workers' Comp 101: Going back to Reilly v. Indus. Comm'n, 389 P.2d 920 (Ariz. 1965), Arizona has acknowledged that "accident" and "occupational disease" are not mutually exclusive. In the Reilly case, the court held that "when an employee develops a disease and the “disease is definitely work-connected,” the “disease is the result of an ‘accident’ within the terms of our Workmen's Compensation Act, and is compensable.” 

Arizona courts have held the following diseases have been compensable injuries, when traced to employment:

(1) Pneumonia -- Dunlap v. Indus. Comm'n, 363 P.2d 600 (Ariz. 1961)
(2) Lyme disease -- Montgomery v. Indus. Comm'n, 840 P.2d 282 (Ariz. Ct. App. 1992)
(3) Allergic reactions -- Lorentzen v. Indus. Comm'n, 840 P.2d
(4) Hepatitis -- Barber v. Indus. Comm'n, 544 P.2d 703 (Ariz. 1976)

Rejecting the employer's argument that COVID was not compensable because it was widespread, the court found that the engineer was in his office working when the conversation with the infected employee occurred and thus, "the ALJ correctly concluded that [the engineer] contracted COVID-19 in the course of his employment."

Likewise, the court also agreed with the ALJ that the engineer's death from COVID arose out of his employment because he "sustained a sufficient special exposure to COVID-19 [at work] in excess of that of the 'commonality.'"

According to the court, the following evidence supported the ALJ's decision in the wife's favor:

(1) The engineer contracted COVID-19 from an infected coworker while in the office and on duty.
(2) The engineer's job required him to have contact with project managers.
(3) The record did not support that the engineer was exposed outside of work to anyone infected with COVID during the relevant time.
(4) The engineer's death certificate listed his immediate cause of death as COVID-19 pneumonia with secondary causes as renal transplant patient, diabetes, and hypertension.

"The record, thus, supports that [the engineer's] work activity resulted in COVID-19, which then combined with [his] preexisting conditions to cause his death," the court wrote. "[The engineer's] employment was a contributing factor to his death, satisfying the “arising out of” requirement.

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