On January 5, 2022, The Georgia State Board of Workers' Compensation has issued its first decision regarding a claim from COVID exposure at work, and denied benefits.

The case was brought by the widower of an employee who worked in the control room of a jail, tested positive for COVID several weeks after an inmate tested positive, and eventually died three months later. After an evidentiary hearing, the Administrative Law Judge concluded:

"I find that Employee's job as a records technician in the jail without direct contact with inmates or the public (during the period in question) did not place her at risk of exposure to the global pandemic such that her employment was a proximate cause of her COVID-19 infection...I find employees contraction of COVID-19 cannot fairly be traced to her employment." 

Administrative Law Judge

The Judge also rejected the medical opinion offered by the Claimant, from a Maryland physician, who opined that the deceased employee most likely contracted COVID from work.  

As the first published opinion from the Board on a COVID claim, this decision may have the effect of discouraging future COVID claims, although Administrative Law Judge rulings are not binding on other Judges. In addition, this decision did not involve any ruling on whether COVID claims are barred, as a matter of law, by the Occupational Disease statute in the Workers' Compensation Act, which provides:

  • "Occupational disease means those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease,  provided the employee or the employee's dependents first prove to the satisfaction of the State Board of Workers' Compensation all of the following:" OCGA 34-9-280.
  • In addition, this statute specifically requires that the claimant in such claims must prove five separate elements about the disease including that it "is not an ordinary disease of life to which the general public is exposed" and is not "of a character to which the employee may have had substantial exposure outside of the employment." 
  • Clearly, a pandemic such as COVID cannot meet either of these requirements, and cannot be compensable under the Act. Indeed, the Administrative Law Judge in this case specifically stated: "I find COVID-19 is a global pandemic and was so declared during the time Employee tested positive and died."

While this case was denied based up on the factual determination that the deceased employee did not contract COVID at work, and therefore did not sustain a compensable "injury," the Occupational Disease statute places a much higher burden of proof where the claim is for a disease claimed to have been the result of exposure at work. The Occupational Disease statute must be applied to any such claim, just as the Act's various requirements for Heart Disease, Stroke, Hernias, Hearing Loss and other conditions are mandatory.

Presumably, the Board will issue a ruling on the Occupational Disease issue as further litigation occurs. Our Workers' Compensation Team will continue to monitor these cases, provide updates, and stand ready to assist you with any questions you may have.

As you'll see from the award the claimant's attorney, Susan Sadow, was apparently able to successfully duck the occupational disease defense by simply claiming "Employee is not claiming compensability as an occupational disease....rather, employee asserts and occupational injury leading to disease arising from and injurious exposure arising out of and in the scope of employment." Fortunately, Administrative Law Judge Reeves Concluded "I find that Employee's job as a records technician in the jail without direct contact with inmates or the public (during the period in question) did not place her at risk of exposure to the global pandemic such that her employment was a proximate cause of her COVID-19 infection...I find employees contraction of COVID-19 cannot fairly be traced to her employment."

Interestingly, judge Reeves also rejected the medical opinion offered by the claimant, from a Maryland physician, who opined that the deceased employee most likely contracted COVID from work.  Without explanation, Judge Reeves simply noted "I give the opinion of Dr. Berg little weight."

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