The West Virginia Supreme Court has ruled 3-2 that a prison nurse is entitled to workers’ compensation benefits for her COVID-19 disease because 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 she was at greater risk of contracting COVID-19 in the workplace; rather her evidence that she did actually contract it from prisoners and co-workers was enough. The state’s high court overruled an Intermediate Appeals Court (ICA) that had denied 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 contention that she contracted an occupational disease, COVID-19, was found by the Workers’ Compensation Board of Review to be compensable. However, the ICA reversed the board’s decision, holding that a single medical risk factor study submitted by PrimeCare Medical of West Virginia, Inc. was dispositive of the case because Foster failed to disprove the study’s conclusion that health care workers’ exposure to COVID-19 in the workplace did not result in a higher 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.

Under the West Virginia workers’ compensation law, a claim for work-related injury, disease, or death caused by or arising from COVID-19 may be held compensable, notwithstanding that workers generally were exposed to the disease outside of their employment, when a preponderance of the evidence establishes that the claimant contracted the disease in the course of and resulting from his or her covered employment and further establishes the other elements of the test set forth in the West Virginia code.

The West Virginia code includes a six-factor test that provides that occupational disease means a disease incurred in the course of and resulting from employment. The ICA and PrimeCare argued that Foster had failed to satisfy the fourth factor in the six-factor test that says that a disease is considered to have been incurred in the course of employment only if it is apparent to the rational mind, upon consideration of all the circumstances, that it “does not come from a hazard to which workmen would have been equally exposed outside of the employment.”

However, the high court dismissed ICA’s analysis as erroneous and concluded that an analysis of whether an occupational disease resulted from a claimant’s workplace exposure to COVID-19 is no different than the analysis employed in every case to determine causation, and hence compensability: whether the claimant’s evidence, including medical testimony and records, preponderates over that submitted by the employer.