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Written by: Matthew Flammia
Over the holiday season, the Industrial Commission filed the first couple of Deputy Commissioner decisions for COVID-19 claims. Several decisions have been filed under the N.C. Gen. Stat. § 143-166.1 et seq for death benefits for public safety employees, which is a different standard than what is required under the North Carolina Workers’ Compensation Act. A decision on whether an employee can prove COVID-19 as a compensable occupational disease pursuant to N.C. Gen. Stat. § 97-53(13) had not been decided until recently, as discussed below. For COVID-19 workers’ compensation occupational disease claims in North Carolina to be compensable, a claimant has the burden of proving: (1) that their employment placed them at an increased risk of contracting the virus when compared to members of the general public; and (2) that there was a causal connection between their specific infection and their employment. In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant’s employment must have placed them at an increased risk of contracting COVID-19.
In both decisions, Britney McNeair v Owens Illinois, Inc./O-I Glass (November 21, 2022) and Tony Esai Chambers v North Carolina Department of Public Safety (December 22, 2022), the Deputy Commissioner determined that claimant failed to meet his/her burden of proof to establish a compensable occupational disease claim. The claimants in both claims could not show that they actually contracted COVID-19 from their employment as a Crew Leader of a glass manufacturing line or as a Corrections Officer. Further, it was determined that neither one of their positions placed them at an increased risk to contract COVID-19 compared to the general public. Of interesting note, the claimant in the McNeair decision asserted an injury by accident claim, but it was denied as well.
The decisions highlight the difficulty an employee will have to establish a compensable COVID-19 claim in North Carolina. The claimants in these claims contracted COVID-19 in 2020 and 2022, contracted different COVID-19 variants, and during times when different safety protocols were in place. However, these distinguishing facts did not seem to influence the decision either way. The claimants were employed in occupations where there was frequent contact with a number of co-workers, but it was determined those facts alone were not enough to establish the increased risk element needed to prove a compensable claim. Finally, these decisions demonstrate the importance of a thorough investigation. In both decisions, contract tracing and investigation into the claimant’s personal and work schedule were important when determining whether COVID-19 was actually contracted in the workplace.
Overall, the recent decisions give us the insight into how the Industrial Commission will handle COVID-19 claims. It affirms how difficult it will be for an employee to show that he/she actually contracted COVID-19 from their employment instead of outside of work when COVID-19 can be contracted anywhere. Further, the decisions establish in multiple industries that just having contact with a number of co-workers is not enough to establish that the employment places individuals at a greater risk than the public of contracting COVID-19. Along those lines, there is an argument to be made that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.