In a unanimous 14 page decision issued on July 10, 2023, the Appellate Division of the State Board of Worker's Compensation held that the COVID-19 virus cannot constitute a compensable injury, as opposed to an Occupational Disease, unless it results naturally and unavoidably from an "identifiable physical occurrence," such as a needle stick. Bonds v Atlanta Public Schools, ICMS Reference No. 21544083. Drew, Eckl & Farnham presented a brief and oral argument in the appeal on behalf of the Georgia Workers' Compensation Association and the Group Funds Association, as Amicus Curiae.

In the three years since the COVID pandemic, thousands of COVID claims have been filed under Georgia's Workers' Compensation Act, many accepted by employers voluntarily, and a relatively small number resulting in litigation. Benefits were denied in the first several cases that resulted in an ALJ Award, with a determination that no causal connection had been established between the highly contagious COVID virus and the claimant's employment. Left unanswered, until now, has been the question of whether a claim based upon the allegation that the claimant contracted COVID from exposure at work could avoid the requirements of the Occupational Disease statute by being compensable as an Occupational "injury." As the Appellate Division has made clear, the Occupational Disease statute is meant to cover all claims based upon the allegation of a disease contracted from exposure at work, whereas an allegation that a disease is part of an already compensable "injury" requires proof of:

  • a discernible physical occurrence, such as a needle stick, and
  • that the disease then resulted "naturally and unavoidably" from the compensable physical injury.

The Appellate Division began its decision by finding, as all the cases brought before the Board thus far have, that COVID cannot be a compensable Occupational Disease since it is both an "ordinary disease of life to which the general public is exposed" and since COVID is "of a character to which the employee may have had substantial exposure outside of the employment." O.C.G.A. §34-9-280(2)(C), (D) Indeed, as the most contagious and wide spread pandemic in generations, it is hard to imagine a virus the general public has been more exposed to. Further, the Occupational Disease statute makes clear in its opening paragraph that it applies to "those diseases which arise out of and in the course of employment in which the trade, occupation, process, or employment in which the employee is exposed to such disease..."

Clearly, the Occupational Disease statute was passed specifically to address claims where the allegation is that a disease resulted from "exposure" at work. The strict requirements against compensability when the disease is one to which the general public is exposed is because, as the Appellate Division explained: "Viral diseases, such as COVID-19, are transmitted in virtually undetectable ways and are frequently so contagious that it is nearly impossible to conclude, much less prove, exactly where contraction of the illness occurred."

Recognizing that a COVID virus cannot be compensable under the Occupational Disease statute, Claimant's attorneys have creatively argued that it can, instead, be compensable as a regular occupational "injury," no different than a back sprain. The Appellate Division addressed this argument in great detail, noting:

  • as opposed to an Occupational Disease an Occupational Injury claim requires, at a minimum, an "identifiable physical occurrence."
  • "a specific incident is likely required, such as an accidental needle stick after the needle has been used on an infected person or some unexpected contact with bodily fluids from an infected person."
  • "Even in those cases where an accident has been proven, it is necessary for the claimant to prove that contracting the disease was the natural and unavoidable result of the accident."
  • "For COVID-19 to be compensable under O.C.G.A. §34-9-1(4), the claimant must prove that it resulted naturally and unavoidably from an accident (emphasis added) arising out of and in the course of employment."

Indeed, the facts before the Appellate Division in this case underscore both the necessity of the Occupational Disease statute and why much more is needed than general allegations of "exposure" for a disease to be compensable as part of a compensable physical injury. As the Appellate Division noted, the claimant in this case never identified a specific injury and used multiple dates of accident varying from the date the deceased employee last worked to the date he first sought medical treatment. While it was alleged that decedent, a plumber, contracted COVID from exposure to a particular coworker, the evidence revealed that the claimant most often worked alone, and there was no direct evidence that the claimant was directly exposed to any employee who had COVID at the time. The Appellate Division noted that there was "no evidence whatsoever that V.W. [decedent's co-worker] actually had COVID-19 in February or March 2020 as confirmed by medical testing." The claimant presented little more than the general allegation that the deceased employee contracted COVID from a general, work-related exposure, not an accident, either from V.W. or some other co-worker, but could not identify any compensable injury.

While the claimant obtained a medical opinion from Dr. Richard Berg, a Maryland physician specializing in internal medicine and infectious diseases, the Appellate Division gave Dr. Berg's opinion "little weight," in part because of his conclusion that COVID-19 was not a "rampant disease" in the Atlanta area in March 2020, even though the state of Georgia had declared a state of emergency because of the COVID-19 virus on March 14, 2020. In addition, much of Dr. Berg's opinion was found to be based upon unsubstantiated medical theory regarding the decedent's possible infection window, and uncorroborated hearsay testimony regarding the decedent's alleged exposure at work. The Appellate Division concluded "Dr. Berg's opinion that VW developed the disease in March 2020 and that the employee had no other known exposure to COVID-19 except for the alleged occupational exposure to VW is flawed and speculative."

After detailing the lack of any direct evidence of a specific accident or injury at work, the Appellate Division found from the evidence that the deceased employee had significant exposure away from the workplace, where he most frequently worked alone. This included regularly attending church services and other church related activities such as Bible studies, meetings, and field ministry activities to include door to door outreach in the employee's neighborhood. Similarly, the deceased employee's wife was active in the community engaging in 50 to 80 hours a month of active door-to-door preaching in early 2020. The deceased employee also owned and operated his own plumbing business, and had at least three jobs in February and March 2020, when it was alleged the decedent contracted COVID.

The Appellate Division concluded that the evidence not only failed to demonstrate any identifiable physical injury, the evidence simply failed to establish any causal connection whatsoever between the decedent's contraction of COVID and his employment. As a result, the Appellate Division reversed the Administrative Law Judge's Award of death benefits.

Further appeals may yet occur in this case. The Appellate Division's decision is significant, however, in addressing both the application of the Occupational Disease statute in COVID claims, and in clearly enunciating that any such claims alleging that COVID should be treated as an injury must affirmatively establish both the occurrence of an identifiable physical injury and that COVID resulted naturally and unavoidably from that compensable occurrence.

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