Delaware Board Must Decide if COVID-Related Claim is Compensable

The Superior Court of Delaware (New Castle) held that the issue of whether an employee’s fatal COVID-19 infection was an injury or occupational disease must be determined by the state’s Industrial Accident Board (IAB) before the employee’s widow could proceed with her tort action against the employer [Ingino-Cacchioli v. Infinity Consulting Sols, Inc., 2021 Del. Super. LEXIS 560 (Aug. 19, 2021)] for damages related to her husband’s death from the disease. Accordingly, since a relevant petition had been filed with the IAB in order to preserve the widow’s potential workers’ compensation claims within the one-year statute of limitations, the tort action should be stayed, pending a final determination by the IAB.

Background

Plaintiff, whose deceased husband (Decedent) had worked for the defendant corporation, filed suit against the employer, alleging that its negligence, gross negligence, and/or recklessness caused Decedent to contract his fatal case of COVID-19 at work. Plaintiff also alleged derivative claims of loss of consortium and survival and wrongful death.

The employer filed a Motion to Dismiss, contending that Plaintiff’s claims were barred by the exclusive remedy provision of the Delaware Worker’s Compensation Act.

Coverage of the Act

The court first noted that the Act provided compensation benefits to employees who suffer personal injuries arising out of and in the course of their employment and it is the exclusive remedy available to an employee to secure compensation from an employer for work-related injuries.” Injuries covered by the Act include only those that create “violence to the physical structure of the body, such disease or infection as naturally results directly therefrom when reasonably treated and compensable occupational diseases and compensable ionizing radiation injuries arising out of and in the course of employment” [19 Del. C. § 2301(16)].

Role of the Industrial Accident Board

The court continued that the IAB was the governing body vested with jurisdiction to hear all cases arising under the Act and any dispute over work-related injuries must be heard in the first instance by the IAB. The employer had disputed the Superior Court’s jurisdiction over Plaintiff’s claims, arguing that Plaintiff must first bring her claim to the IAB for a determination on the merits because Plaintiff claims the Decedent contracted COVID-19 at his workplace.

Plaintiff’s Counter-Argument

Plaintiff countered that because COVID-19 did not qualify as an occupational disease or any other “injury” covered by the Act, her claims in the Superior Court were not barred by the exclusivity provision of the Act. Plaintiff cited two decisions from Delaware Courts for the proposition that an “occupational disease” as defined under the Act is one that results from the peculiar nature of the employment or one that is commonly regarded as natural or inherent in the particular type of employment. Plaintiff argued that because COVID-19 is not the type of disease inherent in a professional staffing job, like Decedent’s, it cannot be considered an occupational disease under the Act [see Air Mod Corp. v. Newton, 59 Del. 148, 215 A.2d 434, 442, (Del. 1965); Burns v. Wilson, 2015 Del. Super. LEXIS 44 (Del. Super. Jan. 30, 2015)].

Jurisdictional Issue

The court stressed that even assuming arguendo, that COVID-19 is not defined as an occupational disease in accordance with the case law upon which Plaintiff relied, her argument failed to address the jurisdictional argument the employer had raised—that the IAB is the appropriate decision-making body to make such a determination in the first instance.

The court noted that Plaintiff’s counsel had disclosed during oral arguments that Plaintiff had filed a petition with the IAB in May 2021 in order to preserve her claims within the one-year statute of limitations. According to Plaintiff, that petition was stayed by stipulation and order of the Board pending a decision in the Superior Court. The court concluded that in light of the fact that Plaintiff had preserved her rights with the IAB and the well-established Delaware statutory and case law vesting the IAB with jurisdiction to hear all cases arising under the Act, it was evident to the Court that this case should first be heard by the IAB. Accordingly, it stayed the matter, subject to the IAB’s determination.