Arizona appeals court finds COVID-19 death compensable under workers' comp statute
The Arizona Court of Appeals held that an office worker's death from COVID-19 is compensable under workers' compensation as long as the statutory requirements are met.
The Arizona Court of Appeals held that an office worker’s death from COVID-19 is compensable under workers’ compensation as long as the statutory requirements are met.
Kenneth Zerby was a design engineer working for Western Millwork in October 2020. His typical workweek was either four or five days in the company’s Phoenix office. At the start of the COVID-19 pandemic, Western kept its employees working in the office regularly but established guidelines based on Centers for Disease Control and Prevention guidance including requiring face masks when not in one’s own office, promoting social distancing, and requiring employees to stay home when sick, according to the opinion.
In 2003, Zerby underwent a kidney transplant and took immunosuppressants and was also diagnosed as a prediabetic. Zerby, believing he was at a heightened risk, was nervous about contracting COVID-19 and took precautions including wearing a mask, social distancing, and limiting his time in public, according to the opinion.
On Oct. 18, 2020, Zerby awoke at night with a fever and subsequently tested positive for COVID-19. He was hospitalized on Oct. 27 and died on Nov. 15, 2020, according to the opinion.
The opinion in Western/Cincinnati v. Zerby retraced Zerby’s steps in the days preceding his COVID-19 diagnosis. On that on Oct. 7, Zerby underwent a medical exam that determined he was in good health. Two days later, on Oct. 9, he drove to Colorado alone and spent the night in a motel, unlocked a storage unit for movers, and drove back to Arizona the next day. He then returned to work on Oct. 12 through 14, and then stayed home due to a move to a new residence on Oct. 15 and 16, according to the opinion.
On Oct. 12, a co-worker, who was not wearing a mask, spoke with Zerby in his office. A supervisor later testified that that co-worker was visibly ill and did not come to work on Oct. 13 and 14. Before receiving results of a COVID-19 test, the co-worker returned to work on Oct. 15 and 16. That person ultimately tested positive, according to the opinion.
On Oct. 17, Zerby went out socially with his supervisor and others, and ran a personal errand with another couple. The next day, he came down with the fever. A week later, one other member at the social occasion, who was also a co-worker, also tested positive, according to the opinion.
After Zerby passed away, his wife Diane filed a workers’ compensation claim that alleged that her husband contracted COVID-19 while working, which was denied by Wester and Cincinnati Insurance Co. Diane Zerby then requested a hearing with an administrative law judge, who found in her favor, according to the opinion.
“COVID-19 has had an immeasurable impact on society,” stated Judge Michael S. Catlett, in his written opinion for the court. “The issue we confront is what impact it will have on our workers’ compensation jurisprudence. Relying on a series of Arizona appellate decisions about Valley fever, Western Millwork asks us to hold that death from COVID-19, even if traceable to interactions with a co-worker while on duty, is non-compensable as a matter of law.”
Diane Zerby asked the court to treat COVID-19 the same as other diseases that can cause a compensable injury if it arises out of and in the course of employment, according to the opinion.
“We hold that death or injury from COVID-19 is compensable where the statutory requirements for workers’ compensation are met,” stated Catlett. “And because wife’s claim meets such requirements, we affirm the award.”
Catlett noted that the Arizona Legislature enacted statutory provisions that govern workers’ compensation claims for specific communicable diseases, but has not yet enacted a statute governing those claims for COVID-19. Thus, the judge stated, the governing standard is that Zerby must have been injured or killed by an “accident arising out of and in the course of his employment,” which is the governing statutory phrase in A.R.S. § 23-1021.
“We start with the word ‘accident,’” stated Catlett. “Employer suggested during oral argument that a disease not qualifying as an ‘occupational disease’ cannot qualify as an ‘accident.’ But that argument is inconsistent with decades of precedent saying otherwise.”
Catlett noted that in 1943, the Arizona Supreme Court “expanded the normal concept of ‘injury by accident’ so as to allow compensation under the workmen’s compensation laws for disabilities resulting from employment related diseases not specifically listed in the occupational disease statues.” And later, the Arizona Court of Appeals observed that “an employee contacting a disease may recover compensation as for an injury by accident arising out of and in the course of his employment,” according to the opinion.
Catlett cited several Arizona appellate cases including Dunlap v. Industrial Commission, Montgomery v. Industrial Commission, Lorentzen v. Industrial Commission, and Barber v. Industrial Commission and said that based on these cases, contracting COVID-19, like contracting like pneumonia, Lyme disease, allergies, and hepatitis, can constitute an accident under the workers’ compensation statute.
“Thus, when an employee develops COVID-19 that is ‘definitely work connected,’ COVID-19 ‘is the result of an ‘accident’ within the terms of our Workmen’s Compensation Act, and is compensable,” stated Catlett.
But Western argued that COVID-19 was “essentially everywhere” and relied on a line of cases which held that Valley fever, a fungal spore that caused disease, was not compensable because it was present throughout the state. Catlet held that Western “stretched the Valley fever decisions too far.”
“The Valley fever cases involved a unique situation where it was impossible, even with medical expert testimony, to establish when, where, and how a claimant contracted a disease present in the general environment, and it is only then that the Valley fever cases automatically eliminate compensation,” stated Catlett.
“Unlike the spores causing Valley fever, COVID-19 can be transmitted ‘from person to person,’” stated Catlett. “As a virus capable of person-to-person transmission, COVID-19 is capable of being traced from person-to-person.”
In this case, Catlett concluded, the evidence reasonably supports the finding that Zerby contracted COVID-19 from an infected co-worker while in the office and on duty.
Counsel to Western and Cincinnati, R. Todd Lundmark, Eric W. Slavin, and David Lundmark of Lundmark Barberich La Mont & Slavin, did not immediately respond to requests for comment. Zerby was represented in the matter by Gaetano J. Testini of the Industrial Commission of Arizona. His office declined to comment on the case.