An appeals court in Arizona on Thursday affirmed workers compensation death benefits in the case of a design engineer whose wife claimed he caught COVID-19 at work while conversing with a co-worker and died weeks later.
In the 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 S. Catlett delivered the Court's opinion, in which Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined:
"COVID-19 has had an immeasurable impact on society. 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 (wife) asks us to treat COVID-19 the same as other diseases—able to cause a compensable injury if it arises out of and in the course of employment. We hold that death or injury from COVID-19 is compensable where the statutory requirements for workers’ compensation are met. And because Wife's claim meets such requirements, we affirm the award."
In October 2020, Kenneth Zerby worked as a design engineer at Western Millwork in Phoenix. When the COVID-19 pandemic began, the company kept its employees working at the office regularly, but established safety guidelines based on CDC guidance. Those guidelines included requiring face masks when not in one's office, promoting social distancing, and requiring employees to stay home if sick or exhibiting COVID-19 symptoms. Employer instructed employees experiencing COVID-19 symptoms to get tested and stay home until they received the results. Many employees, including Zerby, routinely kept their office door closed while working.
Zerby underwent a kidney transplant in 2003 and thereafter took immunosuppressants. Prior to 2020, he was also diagnosed as pre-diabetic. Believing he was at a heightened risk, Zerby was nervous about contracting COVID-19. So Zerby took precautions—wearing a mask, socially distancing, and limiting his amount of time in public.
On October 7, 2020, Zerby underwent a medical exam and was deemed to be in good health. On October 9, he drove to Colorado by himself, spent the night in a motel, unlocked a storage unit for movers, and drove back to Arizona the following day. His wife testified that Zerby was healthy on return. Zerby returned to work October 12 through 14, but he stayed home October 15 and 16 to move into a new residence. When movers came to assist, Wife directed them while Zerby observed from afar.
On October 12, a co-worker came to Zerby's office and spoke with him. The co-worker was not wearing a mask, but testimony varied on the length of the conversation—the conversation lasted anywhere from no more than a minute to “[a] few minutes, less than ten minutes probably.” A supervisor whose office was next door to Zerby believed Zerby's door was open during the conversation, but the co-worker who spoke to Zerby testified they spoke through a closed door. Zerby's chair was positioned six feet from the doorway. The supervisor testified the co-worker was visibly ill and did not feel well. The co-worker called out sick the next two days, October 13 and 14, and took a COVID-19 test, but returned to work on October 15 and 16 before receiving the results. The co-worker eventually received a positive result and informed the employer.
On October 17, Zerby's supervisor, along with the supervisor's wife and brother, visited Zerby and wife; the group talked inside and outside Zerby's home. Zerby and Wife then ran a personal errand and were joined by another couple. After, the group had a 90-minute dinner outside at a restaurant. One member of the dinner party who was also Zerby's co-worker tested positive for COVID-19 nearly a week later.
On October 18, Zerby awoke at night with a fever. The next morning, he felt well enough to go into the office. While there, Zerby texted Wife that he had learned the co-worker who he had spoken to on October 12 had COVID-19 at the time. Wife scheduled Zerby to take a COVID-19 test the following day; the test result came back positive. Zerby's condition deteriorated. 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's condition continued to worsen, resulting in his hospitalization on October 27, 2020 and death on November 15, 2020.
Zerby's wife filed a workers’ compensation claim, alleging Zerby contracted COVID-19 from a co-worker while working. Employer and its carrier, Cincinnati Insurance Company, denied the claim. Wife requested a hearing with an Administrative Law Judge (“ALJ”).
During the hearing, the ALJ heard conflicting factual and medical testimony about the source of Zerby's infection. The wife's medical expert testified that COVID-19 is a highly contagious respiratory virus transmitted through air droplets or mist exhaled from the mouth. He explained that an individual with COVID-19 is contagious two days before symptoms appear. He opined that the risk of contracting COVID-19 from an infected individual varies based on proximity and length of exposure. He concluded that Zerby likely contracted COVID-19 from an infected co-worker during a conversation on October 12, 2020, and not from the dinner party Zerby attended on October 17. And Zerby's development of symptoms on October 18 was not too attenuated for exposure on October 12 because there is no “evidence that there is a minimum amount of time exposure that is necessary” to contract COVID-19.
¶10 Employer's medical expert testified 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, which [the CDC] say[s] is under six feet,” to contract COVID-19. He testified that the infected co-worker was likely contagious on October 12 and Zerby could have been exposed to the virus any time after October 4. Based on what he believed was brief contact between Zerby and the infected co-worker, Employer's expert did not believe Zerby contracted COVID-19 from that co-worker during their conversation.
¶11 The ALJ found in Wife's favor, “determin[ing] that [Zerby] contracted COVID-19 in the course and scope of his employment leading to his death[.]” The ALJ found, based on the fact and medical testimony provided, that Zerby “sustained a sufficient special exposure to COVID-19 [on October 12, 2020] in excess of that of the ‘commonalty,’ ” meaning more than the general populace. Following “a careful review of the testimony of the medical experts,” the ALJ concluded that Wife's medical expert testimony “is more probably correct and well-founded where it differs from” Employer's medical testimony. The ALJ found that “Zerby's COVID-19 illness and death arose from and was related to his employment to a reasonable degree of medical probability.”
¶12 Employer timely requested special action review. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-951(A) and Arizona Rule of Procedure for Special Actions 10.
¶13 When reviewing a worker's compensation award, we defer to the ALJ's factual findings, but review de novo questions of law, including whether an injury arose from employment. Ibarra v. Indus. Comm'n, 245 Ariz. 171, 174 ¶ 14, 425 P.3d 1114, 1117 (App. 2018). We consider the evidence in the light most favorable to sustaining the award. Turner v. Indus. Comm'n, 251 Ariz. 483, 484 ¶ 2, 493 P.3d 910, 911 (App. 2021). We affirm an ALJ's findings if any reasonable theory of the evidence supports them. Perry v. Indus. Comm'n, 112 Ariz. 397, 398–99, 542 P.2d 1096, 1097–98 (1975).
¶14 The Arizona Constitution required the legislature to enact a workers’ compensation law granting compensation for personal injury or death from any accident arising out of and in the course of employment. Ariz. Const. art. 18, § 8. The legislature heeded that command—A.R.S. § 23-1021, for example, entitles qualifying employees to compensation “for loss sustained on the account of ․ injury or death” when injured or killed “by accident arising out of and in the course of his employment.” The legislature further clarified that workers’ compensation can be obtained for, as relevant here, “[p]ersonal injury by accident arising out of and in the course of employment” or “[a]n occupational disease” due to causes peculiar to a particular trade but “not the ordinary diseases to which the general public is exposed.” A.R.S. § 23-901(13)(a), (c). Based on this statutory text, Zerby's COVD-19 infection was not an “occupational disease”—the parties do not assert otherwise. See Ford v. Indus. Comm'n, 145 Ariz. 509, 514, 703 P.2d 453, 458 (1985) (explaining that, when the condition at issue is a disease, “either party is entitled to require that the claim be administered” under the occupational disease provisions).
¶15 The legislature has enacted statutory provisions governing workers’ compensation claims for specific communicable diseases. See A.R.S. § 23-1043.02 (human immunodeficiency virus); A.R.S. § 23-1043.03 (hepatitis C); A.R.S. § 23-1043.04 (methicillin-resistant staphylococcus aureus, spinal meningitis, tuberculosis). Yet the legislature has not enacted a statute governing workers’ compensation claims for COVID-19, leaving A.R.S. § 23-1021 to supply the governing standard. Thus, for Wife to obtain compensation, Zerby must have been injured or killed by an “accident arising out of and in the course of his employment”—the statutory phrase at the crux of this case. See A.R.S. § 23-1021. We first address Employer's two legal arguments and then analyze whether the facts of this case support the award.
¶16 We start with the word “accident.” 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.
¶17 In 1943, our 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.” Phx. Pest Control v. Indus. Comm'n, 134 Ariz. 215, 218–19, 655 P.2d 39, 42–43 (App. 1982). This Court later 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.” Reilly v. Indus. Comm'n, 1 Ariz. App. 12, 15, 398 P.2d 920 (1965). Simply put, “the terms ‘disease’ and ‘accident’ are no longer considered mutually exclusive.” Id. 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 our Workmen's Compensation Act, and is compensable.” Id.
¶18 Arizona appellate courts have often affirmed workers’ compensation awards for non-occupational diseases. Our supreme court approved compensation when an employee became ill with pneumonia after operating a tractor with a defective exhaust system. See Dunlap v. Indus. Comm'n, 90 Ariz. 3, 6–8, 363 P.2d 600 (1961). The court commented that “[a]ny disease is compensable under our statute which follows as a natural consequence of any injury which has qualified independently as an accident.” Id. at 8, 363 P.2d 600. This Court has held that Lyme disease, when traced to employment, is compensable despite also concluding “that the occupational disease statutes are inapplicable.” Montgomery v. Indus. Comm'n, 173 Ariz. 106, 111, 840 P.2d 282, 287 (App. 1992); see also Lorentzen v. Indus. Comm'n, 164 Ariz. 67, 69, 790 P.2d 765, 767 (App. 1990) (holding that allergic reaction can be an “accident” even if not an occupational disease); Barber v. Indus. Comm'n, 25 Ariz. App. 486, 489, 544 P.2d 703 (1976) (awarding compensation for injuries stemmin
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