What Makes a Disease a Compensable Occupational Disease?

Key Points:

• COVID-19 can be a compensable occupational disease in Delaware. 
• There is a two-prong test to determine if a disease is a compensable occupational disease.
• Both prongs must be met.

The Delaware Supreme Court discusses what makes an ailment a compensable occupational disease in its recently issued decision in Fowler v. Perdue, Inc., 2024 WL 3196775 (Del. June 24, 2024). 

Carl Fowler worked at a chicken processing plant where, it was determined, he contracted COVID-19. According to the employer’s medical expert, Fowler became “as sick as will be seen with COVID-19 and still survive.” Not unexpectedly, Fowler filed a petition with the Industrial Accident Board for medical and disability benefits. 

The Board acknowledged that COVID-19 can be an occupational disease. However, after much litigation, the Board determined that Fowler failed to present sufficient evidence that COVID-19 was a compensable occupational disease in this case. The Delaware Superior and Supreme Courts affirmed.

In Fowler, the Supreme Court discusses the tests it has established for determining whether a disease qualifies as a compensable occupational disease. That discussion starts with Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965), where the court defined a compensable occupational disease as “one resulting from the peculiar nature of the employment, i.e., from working conditions which produce the disease as a natural incident of the particular occupation, attaching to that occupation a hazard different from, and in excess of, the hazards attending employment in general.” 

Years after Air Mod, the court restated the test as follows: 

[F]or an ailment or disease to be found to be a compensable occupational disease, evidence is required that the employer’s working conditions produced the ailment as a natural incident of the employee’s occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general. 

Anderson v. General Motors, 442 A.2d 1359, 1361 (Del. 1982) (emphasis added). 

The court in Fowler emphasizes that both the “distinct from” and “greater than” prongs of the test must be met. Satisfying only one is insufficient to prove a compensable occupational disease. To prove his case, Fowler had to prove that Perdue’s working conditions produced his COVID-19 as a natural incident of his occupation in such a manner as to attach to it “a hazard distinct from and greater than the hazard attending employment in general.” 

Fowler did establish that the cafeteria at Perdue presented a hazard “greater than” that attending employment in general. However, he failed to introduce sufficient evidence to support a finding that the cafeteria at Perdue was a hazard “distinct from” that attending employment in general because the record evidence was that contracting COVID-19 in the lunchroom of Perdue was no different than contracting it at Home Depot or Lowes, or a non-work environment, such as a wedding. Compare this to Diamond Fuel Oil v. O’Neal, 734 A.2d 1060, 1061–65 (Del. 1999), where O’Neal’s chronic interstitial nephritis was determined to be an occupational disease because his job, servicing oil burner equipment, required exposure to fuel oil #2 more frequently and in larger amounts than individuals would normally be exposed. Similarly, in Evans Builders, Inc. v. Ebersole, 2012 WL 5392148 (Del. Super. Oct. 11, 2012), it was found that an employee’s pneumonia, which was caused by exposure to mycobacterium avium intracellulare (MAI), was a natural incident of his employment at a poultry house because working as a carpenter in a poultry house exposed him to MAI at a higher volume and more often than if he was not employed in the poultry industry. 

So, while COVID-19 can be an occupational disease in Delaware, insufficient evidence was introduced to support such a finding in Fowler. 

Linda is a shareholder in our Wilmington, Delaware, office. 

_{Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}