Was Deceased Worker’s COVID Compensable in Ky.? Top Court Looks to ‘Nature of Employment’

Case File

When is COVID compensable in Kentucky? According to the commonwealth's top court, only when the claimant "clearly establishes" that the risk of contracting the disease is increased by the nature of the employment as defined by performance of the duties the employee owed the employer, something the estate of a worker who died from COVID failed to establish. Simply Research subscribers have access to the full text of the decision.

Case

Estate of Perkins v. North American Stainless, No. 2025-SC-0094-WC (Ky. 10/23/25)

What Happened?

A worker contracted COVID, and despite a double lung transplant, an infection developed, and he succumbed to his illness.

An administrative law judge found that Kentucky law barred a workers' compensation claim on the worker's behalf because his estate failed to show that the worker's risk of exposure and subsequent contraction of COVID at the employer was increased compared to the general public's exposure to COVID or that the worker experienced an increased risk for exacerbation of COVID.

The Workers' Compensation Board affirmed the ALJ, and the Court of Appeals agreed. The estate appealed to the Kentucky Supreme Court.

Rule of Law

Under Kentucky law, "occupational disease" is a "subset of workplace injury," and communicable diseases, like COVID-19, are excluded from the definition of "injury" "unless the risk of contracting the diseases is increased by the nature of the employment."

To be considered within the nature of the employment, the injury or exposure to hazard "must have been an incident of or have issued from the performance of some duty that the employee owed the employer and resulted as a natural consequence of performance of that duty," per City of Prestonsburg v. Gray, 341 S.W. 2d 257 (Ky. 1960).

Additionally, as detailed in Champion v. Beale, 833 S.W. 2d 799 (Ky. 1992), the disease must be related to a risk connected with the employment and not "based solely upon claimant's self-analysis of the conditions present there."

What the Kentucky Supreme Court Said

The Kentucky Supreme Court upheld the lower court's ruling, keying in on safety standards the employer put in place to curb COVID in its workplace.

"In fact, [the employer] provided incentives to employees to obtain vaccination and required masking when within 6 feet of unvaccinated coworkers," the court explained. "The choice to be unmasked or to even remain around an unmasked coworker, in violation of the work safety protocols and without reporting them to a supervisor, was a personal one."

These safety procedures led the court to find that the "nature" of the worker's employment was to follow steps for mitigating the risk of COVID exposure in the workplace.

The court also struck down the estate's argument that the work exposed the worker to an increased risk of COVID.

"The ... 'increased risk' test only applies to the exacerbation and aggravation of the infection," the court wrote. "There is no evidence in the record indicated the nature of the worker performed by [the worker], as a consequence of required duties ... for his job aggravated an exacerbated his COVID symptoms."

Workers' Comp 101: Under Princess Mfg. Co. v. Jarrel, 465 S.W. 2d 45 (Ky. 1971), one can find an occupational disease if:

(1) There is substantial evidence that employment conditions specifically affected the employee in a manner resulting contraction of a disease.

(2) Employment conditions generally, to a reasonable medical probability, cause a particular disease or condition in a given class of workers.

In the Princess case, the work caused the hypersensitivity to the extent that a prolonged or unusual exposure caused a sensitization to a particular allergen and an allergic reaction developed. The specific employment conditions of prolonged exposure to a particular allergen specifically encountered as part of the employment affected the employee.

Looking at the worker's case, the court noted that his contraction of the disease could be, and was found by the ALJ to be, attributable to nonwork-related activities the worker engaged in, including attendance at a party and interactions of daily life as evidenced by the timeline of his symptoms and text messages he sent regarding other family members' illnesses, symptoms, and test results.

In ruling against the estate, the court spelled out three considerations for determining when a communicable disease is compensable in Kentucky:

(1) Was the injury work-related? The burden of proof remains on the claimant to demonstrate that it arose out of or in the course of employment.

(2) Nature of employment. All communicable disease claims must prove the "nature of employment" requirement demonstrating the risk of contracting the disease was increased by the required duties of the employee by the employer or the probability of contracting the disease was greater for the worker because of the nature of the job's employment conditions than it is as a member of the general public.

(3) Extent of the injury. The extent of the injury must be beyond the normally anticipated effects of a general communicable disease so as to prevent "a flood of claims based on colds, grippe, and endless common ills allegedly arising out of employment."

Verdict: The Kentucky Supreme Court affirmed the Court of Appeals' decision upholding the board's agreement with the ALJ's dismissal of the estate's worker's compensation claim.

Takeaway

In Kentucky, for a COVID infection to amount to a compensable occupational disease, it must be evident that the COVID exists at work to a greater degree than in other places generally to establish a link between the condition and some distinctive feature of the claimant's job.

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