Since the beginning of the COVID-19 pandemic, the Georgia Workers' Compensation Bar has eagerly awaited the first published case concerning the compensability of COVID-19 claims. Leading up to the Award in Roper v. Jasper County, there were a number of unanswered questions, particularly concerning the theory of compensability claimants will seek benefits under. Given that COVID-19 is a disease caused by the virus SARS-CoV-2, one would naturally look to the Occupational Disease Statute under O.C.G.A. § 34-9-280. The statute reads:
“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:
- A direct causal connection between the conditions under which the work is performed and the disease;
- That the disease followed as a natural incident of exposure by reason of the employment;
- That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;
- That the disease is not an ordinary disease of life to which the general public is exposed;
- That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.
Without even addressing sub-sections (A), (B), and (E), it is evident that a COVID-19 claim would almost certainly be non-compensable under §34-9-280 due to sub-sections (C) and (D), since the statute requires all five prongs to be met. As we all know, COVID-19 is a disease to which the general public is exposed to, and nearly everyone has substantial exposure to COVID-19 outside of their employment.
With O.C.G.A. § 34-9-280 likely off the table, most suspect claimants will pursue their COVID-19 claims under O.C.G.A. § 34-9-1(4), the Occupational Injury statute, which reads:
“Injury” or “personal injury” means only injury by accident arising out of and in the course of the employment and shall not, except as provided in this chapter, include a disease in any form except where it results naturally and unavoidably from the accident…
Georgia case law has long established that “arising out of” and “in the course of employment” are two separate requirements. An injury “arises out of” the employment when a reasonable person, after considering the circumstances of the employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury. Hennly v. Richardson, 264 Ga. 355 (1994). An injury occurs “in the course of” employment when it “occurs within the period of the employment, at a place where the employee may be in performance of her duties and while she is fulfilling or doing something incidental to those duties.” Id. Notably, unlike the Occupational Disease statute, under § 34-9-1(4), claimants are not required to prove the precise time and place of their COVID-19 contraction, but rather, they are allowed to offer circumstantial evidence that their infection arose out of and in the course and scope of employment. Ideal Mutual Ins. Co. v. Ray, 92 Ga. App. 273 (1955).
Given the much lower burden of proof under the Occupational Injury statue, the vast majority of COVID-19 claims will likely be brought under this theory of compensability. In the first published Georgia Award concerning the compensability of COVID-19 claims, Roper v. Jasper County (2020-109005), that is exactly what occurred.
Roper v. Jasper County involved a claim for death benefits by a dependent spouse after a records technician at the Jasper County Jail died from complications of COVID-19 on October 5, 2020. The dependent spouse's theory of the claim was that Roper sustained an injurious contraction of COVID-19 arising out of and in the course and scope of her employment with the Jasper County Jail, and this infection ultimately led to her death. As in all workers' compensation claims, this Award involved a very fact intensive inquiry, and Judge Reeves provided some guidance on what facts the Board will highlight in deciding COVID-19 claims.
At the hearing, evidence was offered showing Roper worked the control room night shift during the months of July and August 2020. In July, an inmate at the jail tested positive, so all employees, including Roper, were required to get tested. Roper tested negative on Wednesday, July 29, 2020, but began feeling sick over the weekend of July 31 – August 2. By Monday, she was feeling better, but regressed the following day, and ultimately tested positive on August 4. Roper's health quickly declined over the following weeks, and she eventually passed on October 5, 2020.
Of course, there is no dispute that Roper passed due to COVID-19, so Judge Reeves' analysis focuses on whether the dependent spouse can meet his burden of proving Roper sustained an injurious contraction of COVID-19 arising out of and in the course of her employment with the Jasper County Jail. The claimant offered evidence that Roper only came into contact with her spouse, her son, and her co-workers during the alleged period of exposure from July 28, 2020 – August 4, 2020. The claimant also offered evidence that Roper's husband and son were both tested four times during this period and were negative each time, while all of Roper's co-workers were also tested during this time period, and several of them tested positive.
The defense offered evidence of Roper going to multiple doctors' appointments during the pandemic, pumping gas, going to drive-through restaurants, and coming into contact with her son, who worked as a machine operator in Newton County and who made frequent trips to the grocery store and pharmacy in the weeks and days leading up to Roper's infection. They also offered evidence of the Jasper County Jail's extensive COVID-19 precautions, which included quarantine and negative test requirements before exposed and infected employees were allowed to return to work, extensive fogging and sanitizing of the control room where Roper worked, policies requiring employees to wear employer issued N95 and KN95 masks, as well as additional requirements involving special procedures for booking new inmates to ensure the jail population was not exposed. The defense also argued that the claimant had not offered evidence suggesting Roper came into contact with any of her co-workers, or the inmate, who tested positive, and there was also no evidence even suggesting Roper came into contact with anyone who was exposed to infected inmate.
Ultimately, in a finding for the Employer/Insurer, Judge Reeves made several key findings of fact. She emphasized the fact that the Employer used mitigation measures recommended by the CDC, Roper's husband and son, who lived with her, were out in the community for work and personal errands in the weeks and days leading up to her contraction, and the fact that there was no direct evidence that Roper contracted COVID-19 from one of her co-workers or the infected inmate. In light of these key facts, Judge Reeves held that Roper's job as a records technician at the jail, which did not involve direct contact with inmates or the public, did not place her at a risk of exposure to COVID-19 such that her employment was a proximate cause of her infection and death. Judge Reeves also held Roper's contraction of COVID-19 could not be fairly traced to her employment, the evidence did not establish a causal connection between Roper's work circumstances and her infection, and ultimately that the claimant did not meet his burden of showing Roper suffered an injurious contraction of COVID-19 arising out of and in the course of her employment with the Jasper County Jail.
While this is only the first published case concerning the compensability of COVID-19 claims, Roper v. Jasper County provides guidance on the three primary factual areas the Board will be looking to in issuing its Awards: 1) individual precautions taken by the employee, 2) mitigation measures taken by the employer, and 3) the degree of the employee's exposure to infected individuals while at work. The case law concerning COVID-19 claims will continue to evolve as more Awards are published, but as it currently stands following Roper v. Jasper County Award, it seems Employers and Insurers have a reasonable basis to deny COVID-19 claims so long as they take mitigating measures to reduce the spread of COVID-19 in their facilities, and so long as there is no clear, traceable spread of the virus among individuals in their workplace.
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