The West Virginia Supreme Court has ruled 3-2 that a prison nurse i
s entitled to workers’ compensation benefits for her COVID-19 disease becaus
e she provided sufficient evidence that she contracted it in her workplace and not outside of work.
Brittany Foster did not have to prove that as a health care worker sh
e was at greater risk of contracting COVID-19 in the workplac
e; rather her evidence that she did actually contract it from prisoners and co-workers was enough. The state’s hi
gh court overruled an Intermediate Appeals Court (ICA) that had de
nied the claim because it said she did not prove she was engaged in a profession having a statistically higher risk
of COVID-19 infection in the workplace than outside of the workplace.
Foster’s workers’ compensation claim, based on her contentio
n that she contracted an occupational disease, COVID-19, was found by the Workers’ Compensation Board of Review to be compensable. H
owever, the ICA reversed the board’s decision, holding that a single medical risk factor study submitted by Pr
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itive of the case because Foster failed to disprove the study’s conclusion that health care workers’ exposure to COVID-19 in th
e workplace did not result in a hig
her occurrence of illness than that experienced by individuals who did not work in the health care field.
PrimeCare further argued that as a matter of law COVID-19 cannot be a compensable occupational disease because contracting COVID-19 is “a hazard to which workmen would have been equally exposed outside of the employment.”
The high court found that the ICA’s analysis was “clearly erroneous.” The justices said that statistical evidence as to the incidence of workplace-related risk vis-a-vis outside risk is relevant, but not dispositive, in determining whether the claimant’s exposure “came from a hazard to which workmen would have been equally exposed outside of the employment.” In deciding compensability, any such evidence may be considered, together with the parties’ evidence tending to prove or disprove that the claimant in fact contracted COVID-19 from exposure in the workplace, the Supreme Court opinion explained.