Winner, Winner, Chicken Dinner… and Victory defeating COVID-19 Claim!
What we have all been waiting for, hoo wee! What may just be the very first Delaware IAB decision in a case advancing COVID-19 as an occupational illness. Filed against none other than Delaware’s own original Blue Hen employer, the Perdue Chicken Factory. The case is Carl Fowler v. Perdue Inc., IAB Hr’g No. 1501167 (Dec. 31, 2020) — and don’t you just love that an employee of the chicken plant is named Fowler?
So in a case that the Board warns is “incredibly fact-intensive”, the employer prevails — and since the Board found that the claimant did not meet his burden of proof regarding exposure, they decline to reach the issue of whether “Covid-19 is an occupational disease within the meaning of the Delaware Workers’ Compensation Act.”
Both sides of the vee will likely find some takeaways in both the presentation of this claim and the outcome, noting that both sides had seasoned counsel who offered colorable support for their positions. The claimant’s expert was Dr. Barrington Brown, board-certified in family medicine; the defense medical expert was Dr. Alfred Bacon, III , a board-certified internist specializing in infectious disease. The claimant at age 55 was on the more severe end of the spectrum for someone who had survived the disease, and at the time of the hearing, had been disabled for months. He worked in the box room at Perdue which by nature would have limited any close contact with fellow workers, but would take his breaks in the Perdue cafeteria, which might house up to 200 people at a time eating meals.
In denying benefits based on a failure of proof of exposure at work, the Board highlighted the following:
They did not find claimant credible in terms of potential exposure elsewhere, with some contradiction between claimant’s testimony and that of his wife with regard to trips to Walmart, and noting additional trips to Royal Farms, as well as discrepancies as to when claimant started self-isolating.
There was no evidence of any employee testing positive in the box room on the shift where claimant worked and the treating physician was admittedly more focused on the medical aspects of claimant’s case than on the details of any potential exposures and where they might have occurred. Claimant was not wearing a mask when seeing Dr. Brown on March 16 or at the lab where he obtained bloodwork immediately after, and at that early juncture, there were no special sanitation measures yet in place at either facility.
“There are a tremendous number of places where a person can contract Covid-19 and essential businesses have remained open since the beginning of this worldwide pandemic. At a bare minimum, claimant went to Royal Farms, Walmart, Dr. Brown’s office, a laboratory, and work during the weeks leading up to his diagnosis and he could have caught Covid-19 in any of those places.”
The burden of proof is one of “more likely than not” and in this case, it was not met. Of note, this was a downstate Board panel.
So we are left with questions—
Will there be any identifiable consistency (or lack thereof) in similar cases?
Will health care workers or first responders be given any enhanced consideration allowing for the nature of their employment?
Given that this is a “worldwide pandemic”, will the concept of “ubiquitous” rear its ugly head and defeat these claims as it has done on occasion in the past (think, for example, mold exposure cases)
It had to start somewhere. This blogger is anxious to see where this goes and you can rest assured this isn’t the last of our Coronavirus case reporting. Stay tuned!
Irreverently yours . . .but properly masked,
Cassandra Roberts
