Maine Turnpike Worker Connects COVID Infection to Working with Maskless Coworker

Augusta, ME (WorkersCompensation.com) -- Back when COVID was going around freely, if you came down with it, how could you be sure where you caught it?

In Wooten v. Maine Turnpike Authority, No. 24-5 (Me. W.C.B. App. Div. 03/14/24), Maine's Workers' Compensation Board's Appellate Division found that a worker's close contact with an infected coworker was enough to show that she came down with it from her job, not out in the world of pandemia.

A worker for the Maine Turnpike Authority was diagnosed with COVID-19 on Sept. 28, 2021, which was one day after she experienced symptoms. The worker testified that she believed that she contracted COVID-19 at work from contact with an infected coworker.

The worker's diagnosis evolved into COVID-pneumonia, which required hospitalization for nearly two weeks. Roughly two weeks after that, the authority terminated the worker because she had exhausted her sick leave.

The worker sought wage loss benefit and medical payments related to her COVID-19 illness. The ALJ granted the workers' petitions, concluding that a claim based on a COVID-19 diagnosis can be brought as a personal injury rather than an occupational disease. The ALJ ordered the authority to pay total incapacity benefits and medical bills.

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The ALJ based the decision on facts showing that:

(1) The worker worked in the same general area of the office as an infected individual for approximately hours over the course of two days.
(2) The infected individual was coughing and sneezing while at work on these two days while unmasked.
(3) The worker was also unmasked and at various times working within two feet of the infected coworker.

The authority appealed to the appellate division, arguing that rather than the personal injuries provisions, the occupational disease provisions of state workers' compensation law should have applied.

In Maine, a personal injury is compensable if it arises out of an in the course of employment. On the other, under the occupational disease law, an employee must not only establish that their disease arose out of and in the course of employment but also that it was due to "causes and conditions characteristic of a particular trade, occupation, process, or employment."

The appellate division agreed with the ALJ that COVID could come under the personal injury provisions, citing precedent cases, including:

Pickering v. State of Maine, No. 17-11 (Me. W.C.B. App. Div. 2017), in which a panel upheld an award granted to an employee who had contracted Lyme disease at work.

Flaherty v. City of Portland, No. 19-31 (Me. W.C.B. App. Div. 2019), in which the appellate division affirmed an ALJ's decision concluding that an employee's cancer diagnosis was a personal injury.

The court emphasized that state law recognizes various diseases as potentially compensable, including:

> Cardiovascular injury or disease and pulmonary disease
> Communicable diseases
> Certain specified types of cancer
> Mental stress, in certain circumstances
> Disease that is either aggravated by or contracted through a work activity

Regarding whether the worker's COVID was contracted in the course of her employment, the appellate division found enough evidence of causation to uphold the ALJ's ruling.

"The only known contact [the worker] had with an infected individual within the relevant time was at work over a two-day period," the court explained. "That individual was symptomatic and unmasked, and at times worked in proximity (within two feet) of [the worker]."

Given the worker's exposure to the coworker, the appellate division found no error in the ALJ's conclusion that the worker established that it was more likely than not that her COVID infection arose out of and in the course of employment as it could "properly be said to be a 'consequence of industrial activity' as opposed to 'a consequence of life in general.'"

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