covid 19 4985549 640

What Makes a Disease Compensable in Delaware?

26 Jun, 2024 Frank Ferreri

covid 19 4985549 640

Wilmington, DE ( -- If you read our summary of Fowler v. Perdue Inc., No. 412, 2023 (Del. 06/24/24), you learned that the Delaware Supreme Court found a worker's case of COVID-19 didn't entitle him to benefits because the medical evidence wasn't sufficient to show that COVID was natural to his work environment.

"Contracting COVID-19 in the lunchroom of Perdue was no different than contracting it at Home Depot or Lowe's or a non-work environment such as a wedding, funeral, college cafeteria, restaurant, or bar," the court wrote.

How did the court get there? It took a trip through some case law on the definition of occupational disease. Here's a look at those cases.

Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965). In this case, the Delaware Supreme Court defined "compensable occupational disease" as one resulting from the peculiar nature of the employment, i.e., from working conditions that produce the disease as a natural incident of the particular occupation, attaching to that occupation a hazard different from, an in excess of, the hazards attending employment in general.

Anderson v. General Motors, 442 A.2d 1359 (Del. 1982). For an ailment to be found to be a compensable occupational disease, evidence is required that the employer's working conditions produced the ailment as a natural incident of the employee's occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general.

Harman v. Republic Aviation Corp., 82 N.E.2d 785 (N.Y. 1948). Here, the New York Court of Appeals stated that an "ailment does not become an occupational disease simply because it is contracted on the employer's premises. It must be one that is commonly regard as natural to, inhering in, an incident and concomitant of, the work in question.

Yeager v. Arconic Inc., 2022 WL 2114656 (Ohio Ct. App. 06/13/22). COVID-19 was not an occupational disease because common illnesses to which the general public is exposed are not compensable occupational diseases.

Diamond Fuel Oil v. O'Neal, 734 A.2d 1060 (Del. 1999). An employee's job involved servicing and installing oil burner equipment, requiring exposure to fuel oil #2 more frequently and in a larger amount than individuals would be exposed otherwise. The court held that the worker produced evidence that his employer's working conditions through exposure to heating fuel oil #2 produced his kidney disease as a natural incident of his employment in such a manner as to attach to his occupation a hazard distinct from and greater than the hazard attending employment in general.

Evans Builders Inc. v. Ebersole, 2012 WL 5392148 (Del. Super. 10/11/12), aff'd sub nom. Evans Builders v. Ebersole, 2013 WL 2371705 (Del. 02/11/13). Accepting an expert's opinion that an organism was more prevalent in the poultry industry than in other environments, the court held that an employee's pneumonia was related to his work as a carpenter in the poultry industry.

Burns v. Wilson, 2015 WL 413452 (Del. Super. 01/30/15). Mold and mildew could not be the cause of an occupational disease since mold from a leaky building was not a hazard that was commonly regarded as natural to or inhering in working in a tire store.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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