Ohio Court Affirms Finding that Furnace Worker’s COVID-19 Was Not Compensable

Finding that a furnace worker had failed to establish the necessary third prong in the definition of occupational diseases—that his employment created a risk of contracting the disease (here, COVID-19) in a greater degree and in a different manner than in the public generally, an Ohio appellate court affirmed a trial court’s summary judgment determination in favor of an employer where the worker was unable to present expert medical evidence that he faced a risk of exposure greater than that to which the general public was subjected [Yeager v. Arconic Inc., 2022-Ohio-1997, 2022 Ohio App. LEXIS 1867 (June 13, 2022)]. This case illustrates the difficulty in establishing a viable COVID-19 claim in the absence of a presumption of compensability.

Background

Yeager sought workers’ compensation benefits related to his alleged exposure to COVID-19 at work. In September 2020, a Staff Hearing Officer allowed Yeager the right to benefits under Ohio’s Workers’ Compensation Fund, finding that Yeager had “COVID-19 Infection Exposure” while working as a furnace operator for the employer. The Industrial Commission declined to hear the employer’s appeal and the employer filed an administrative appeal in the Trumbull County Court of Common Pleas. Yeager filed a complaint showing a cause of action to participate in the fund.

The employer moved for summary judgment on the bases that

1. “Exposure” to COVID-19 was not a compensable diagnosis;
2. Yeager did not sustain a workplace injury; and
3. Yeager did not develop an occupational disease in the course of and arising out of his employment.

Trial Court’s Decision: No Facts in Dispute

The trial court entered summary judgment in favor of the employer, thereby disallowing Yeager from participating in the fund. The trial court found that there were no genuine issues of material fact based on the deposition of Yeager’s expert, Dr. Kim, who opined that Yeager did not sustain an injury in the course of and arising out of his employment. Dr. Kim also indicated that he could not state to a reasonable degree of medical probability that Yeager’s COVID-19 infection was an occupational disease incurred in the course of and arising out of the employment. The employer’s expert testified similarly.

The trial court noted that in establishing an occupational disease allowance, general and actual causation cannot be established without medical expert testimony. Since Yeager had no such evidence, there were no triable issues.

Appellate Court Affirms

The appellate court indicated the Yeager’s sole argument on appeal was that a genuine issue of material fact existed as to whether his COVID-19 infection was a compensable occupational disease because Dr. Kim’s testimony was inconsistent or equivocal on this issue.

The appellate court observed that earlier the Supreme Court of Ohio set forth the definition of occupational disease as a three-prong test:

1. The disease is contracted in the course of employment;
2. The disease is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and
3. The employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally [see State ex rel. Ohio Bell Telephone Co. v. Krise, 42 Ohio St.2d 247, 327 N.E.2d 756 (1975), syllabus].

The appellate court acknowledged that Yeager presented evidence that he may have contracted COVID-19 in the course of his employment. On March 20, 2020, Yeager worked alongside a coworker in a furnace pulpit for approximately half an hour. They were not wearing masks and did not have the ability to “socially distance.” The coworker sought medical attention from the plant nurse during this shift and subsequently tested positive for COVID-19. Yeager was placed in quarantine the following day and began experiencing COVID-19 symptoms approximately one week later. Yeager argued that he tested positive for COVID-19 on March 28, 2020.

Common Illness to Which Public is Exposed

The court noted that in Yeager’s affidavit, regarding the second and third requirements of “occupational disease,” Yeager contended that COVID-19 is peculiar to his employment and that he was at greater risk of contracting COVID-19 than the general public because he was required to work in “close proximity” to the infected coworker. The court said that even assuming, for the sake of argument, that the “close proximity” averment was sufficient to create an issue of fact as to the second requirement, it was not sufficient to establish the third requirement, because “a common illness to which the general public is exposed” is not compensable as an occupational disease.

Not Health Insurance

Quoting from Ingram v. Conrad, 4th Dist. Athens No. 01CA36, 2001 Ohio App. LEXIS 6017 (Dec. 20, 2001), the appellate court stressed:

It is not contemplated by the law makers that the law should cover health insurance. It is a matter of rather common knowledge that “colds,” influenza and pneumonia are the result of bacteria—in common parlance, germs—attacking the body. These germs appear and cause epidemics in cities, towns, and counties. It is also a matter of rather common knowledge that many such germs appear to be in the very atmosphere surrounding us, at all times. Any and every person is “exposed” to them without being conscious of the fact. Medical science teaches that we fall victims of these germs because at the time of the attack we are not physically able to withstand their assaults.

The court added that Dr. Kim, Yeager’s medical expert, provided deposition testimony that indicates COVID-19 falls within this category as a common illness to which the general public is exposed. Yeager had not met the third requirement of establishing his COVID-19 was an occupational disease.