Arizona judges have ruled that employees who can trace COVID-19 infections to the workplace can claim workers’ compensation. The ruling is important for glass and glazing companies as COVID-19 cases rise nationwide.
A three-judge panel sided with the widow of an employee of Western Millwork who died of COVID-19, ruling that “death or injury from COVID-19 is compensable where the statutory requirements for workers’ compensation are met.”
Judges Michael S. Catlett, Paul J. McMurdie and Michael J. Brown upheld a ruling that Kenneth Zerby’s case of COVID-19 could be traced back to his workplace with a reasonable amount of certainty, given the information available at the time. Western Millwork and its insurer, Cincinnati Insurance Co., argued that by the time Zerby contracted the virus, it was so widespread that he could have contracted it elsewhere, including during activities during his personal time.
Per a judge’s opinion filed on September 21, “contracting COVID-19—like pneumonia, Lyme disease, allergies, and hepatitis—can constitute an ‘accident’ under the workers’ compensation statute, even if COVID-19 does not qualify as an occupational disease.”
Zerby was a designer engineer for the Phoenix-based company and worked “four or five days a week” even after the pandemic started. Zerby’s widow, Diane, noted that at the beginning of October 2020, Zerby’s doctors had given him a clean bill of health and after a short trip with minimal contact with others, he remained healthy.
In mid-October 2020, one of Zerby’s coworkers reported to work, refrained from wearing a mask, and conversed with Zerby. Though the court summary of the case indicates it is unclear whether the conversation between Zerby and his ill coworker took place with Zerby’s office door open or through a closed door, a “supervisor testified the co-worker was visibly ill and did not feel well.” The coworker called out sick the next two consecutive days–two of which Zerby was in the office–and returned on the third day before the results of a COVID-19 test were available. Zerby was out of the office when the coworker returned, a planned absence related to a personal matter.
The coworker later reported that the test results were positive.
According to court documents, Zerby tested positive for COVID-19 on or about October 20, and on October 23, “an emergency room doctor ordered a chest x-ray and recommended that Zerby return to the emergency room immediately for any worsening or new symptoms.”
Zerby was hospitalized on Oct. 27, 2020, and died on Nov. 25, 2020.
When Diane Zerby filed a workers’ compensation claim, Western Millwork and Cincinnati Insurance Co. denied it. In turn, she requested a hearing with an administrative law judge, during which a medical expert testified that Zerby “likely contracted COVID-19 from an infected co-worker during a conversation on Oct. 12, 2020…”
A medical expert for Western Millwork and its insurance company refuted this, testifying that “unless there is coughing or sneezing, one requires ‘about 15 minutes of contact, direct contact with a person, and you need to be fairly close.’” According to the medical expert, the Centers for Disease Control and Prevention says contact must be under six feet to contract the disease. For this reason, “Zerby could have been exposed to the virus any time after October 4,” the expert alleged.
Ultimately, the judges opined that Zerby’s widow is entitled to compensation because “This is a mixed risk case. Zerby’s risk of work-related exposure from interacting with potentially infected co-workers in person combined with his underlying medical condition resulted—legally and medically—in his death from COVID-19.”