By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — An employee who contracts COVID on the job is entitled to benefits under the state’s workers’ compensation, the state Court of Appeals has ruled.

And his survivor is entitled to benefit if the disease kills him.

In a new decision, a three-judge panel rejected arguments by Western Millwork that the only way the widow of Kenneth Zerby could collect death benefits is if he had contracted some sort of “occupational disease,” one related to the work he was doing that exposed him to a risk beyond the general public. That, for example, would include asbestosis among those who mine asbestos as well as those who work with asbestos insulation.

Judge Michael Catlett, writing for the panel, said no one is arguing COVID-19 is an occupational disease.

But he said that ignores the fact the workers’ compensation system is designed to provide coverage for deaths and injuries “by accident arising out of and in the course of ... employment.” And in this case, they said, the evidence presented by Diane Zerby on behalf of her husband showed that he contracted the disease while at work, making his death work-related.

Central to the debate is the nature of workers’ compensation.

Set up in 1925 by the Arizona Legislature, it provides a form of no-fault coverage for work-related injuries. That means that, unlike other complaints for death or injury, the worker does not need to prove that the incident was the fault of the employer to get compensation.

The trade-off is that the worker gives up the right to sue the employer even if there is proof that the incident was due to a company’s gross negligence.

Medical bills are covered. But employers — and their insurers — benefit because there is a cap on compensation for lost earnings and death benefits.

According to court records, Zerby had a kidney transplant in 2003 and had to take immunosuppressants after that. He also was diagnosed prior to 2020 as pre-diabetic.

Believing he was at risk, his wife said he took precautions during COVID, like wearing a mask, socially distancing, and limiting his amount of time in public.

There were a couple of incidents in October 2020 of Zerby being exposed to co-workers who later tested positive for the virus. He tested positive, had worsening symptoms, was hospitalized on Oct. 27 and died on Nov. 15.

An expert witness hired by the employer testified that unless there is coughing or sneezing, it requires “about 15 minutes of contact, direct contact with a person, and you need to be fairly close which CDC says is under six feet.” But a hearing officer sided with testimony presented by his wife who concluded Zerby likely contracted COVID from an infected co-worker during a conversation at the office.

On appeal, the company argued that, if nothing else, Zerby’s widow could not collect because there had not been an “accident.” But Catlett said there is a long line of cases undermining that argument.

“Simply put, the terms ‘disease’ and ‘accident’ are no longer considered mutually exclusive,” he wrote. “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 or Workmen’s Compensation Act.”

For example, he said, the Arizona Supreme Court has approved compensation when a worker became ill with pneumonia after operating tractor with a defective exhaust system. And Catlett said the Court of Appeals, in a 1992 case, said that Lyme disease, when traced to employment, is compensable.

The judges were no more sympathetic to arguments that COVID is not compensable because “it is essentially everywhere.”

There is some basis for that, with courts ruling that Valley fever, caused by a fungal spore in Arizona soils, is present throughout the state. And that prevalence, the judges said, makes it impossible for someone to prove where he or she contracted it and, by extension, to show it was work related.

But Catlett said that precedent doesn’t apply here.

“Unlike the spores causing Valley fever, COVID can be transmitted from person to person,” he said. And what that means, Catlett said, is it is possible to trace the disease from person to person.

“Indeed, person-to-person tracing was one method governments tried out to mitigate the COVID-19 pandemic,” he said.

“With person-to-person tracing possible, a workers’ compensation claimant will occasionally be able to trace exposure to COVID-19 to the workplace,” Catlett continued. “Where the evidence supports that COVID-19 was actually contracted at a claimant’s place of employment during work hours while on duty, and other statutory requirements are met, we see no reason to treat COVID-19 differently than any other compensable communicable disease.”

The court also rejected arguments that Zerby’s prior existing medical conditions meant that his death could not be solely caused by COVID exposure. The judges said that is irrelevant as long as there is a showing that the at-work exposure was a contributing factor.