Fowler v. Perdue Farms, Inc. ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CARL FOWLER, )
)
Claimant Below/ )
Appellant, )
)
Vv. ) C.A. No. K21A-01-002 NEP
)
)
PERDUE FARMS, INC., )
)
Employer Below/ )
Appellee. )
Submitted: December 21, 2021
Decided: March 16, 2022
MEMORANDUM OPINION AND ORDER
Upon Appellant’s Appeal from the Decision of the Industrial Accident Board
REVERSED and REMANDED
Walt F. Schmittinger, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware,
Attorney for Claimant Below/Appellant.
Andrea C. Panico, Esquire, and Megan E. Traynor, Esquire, Tybout, Redfearn &
Pell, Wilmington, Delaware, Attorneys for Employer Below/Appellee.
Primos, J.
Before this Court is the appeal of Carl Fowler (hereinafter “Fowler”) from the
decision of the Industrial Accident Board (hereinafter the “Board”) finding that he
did not prove, by a preponderance of the evidence, that he contracted COVID-19 at
the workplace of his employer, Perdue Farms, Inc. (hereinafter “Perdue”). A final
order of the Board (hereinafter the “Order”) found that the Board “[does] not believe
that it is more likely than not that [Fowler] contracted COVID-19 at Perdue based
on the evidence presented.”! For the reasons that follow, the Court finds that the
Order is neither supported by substantial evidence nor free from legal error.
Therefore, the Order is REVERSED, and the matter is REMANDED to the Board.
I. FACTUAL AND PROCEDURAL HISTORY
Fowler contracted COVID-19 in late March of 2020. On July 14, 2020,
Fowler filed a Petition to Determine Compensation Due with the Board. On
November 17, 2020, the Board held a hearing on Fowler’s Petition.
During the hearing, Fowler testified that he took up to two breaks during the
workday and that he would spend both in the cafeteria with many other people.* He
would be sitting shoulder to shoulder with others in the cafeteria.? He testified that
there were “so many people” in the cafeteria during breaks that workers would “be
close. Like a sardine can, close.”* During lunch breaks, approximately 200 people
would be present in the cafeteria.>
' Rec. Tab. 8, Carl Fowler v. Perdue, Inc., [AB Hearing No. 1501167 ( Dec. 31, 2020) (hereinafter
“Bd. Order”) at 24.
? Rec. Tab 2, Tr. of Bd. Hr’g (Nov. 17, 2020) (hereinafter “Tr. of Bd. Hr’g”) at 61-62, 78. The
lunch period was 30 minutes. /d. at 61. Fowler had an additional break, during the times he
worked late, which he would similarly spend in the cafeteria with other people. /d. at 61-62.
3 Id. at 79.
‘Id.
> Id. at 61.
Fowler presented symptoms for COVID-19 on March 27° and tested positive
for COVID-19 at the emergency room on March 29, 2020. The emergency room
record states, “Patient high risk for possible underlying COVID-19 infection. Given
that he is still working at Perdue factory over the last two weeks.’ Barrington
Brown, M.D. (hereinafter “Dr. Brown”), Fowler’s primary care physician, testified®
that the emergency room was aware of an “outbreak at the Perdue factory” during
that time.”
Ronald Dukes, Safety and Security Manager at Perdue, confirmed that chairs
and tables in the cafeteria were not moved further apart until March 24. He also
confirmed that a worker at the facility had presented symptoms as early as March 18
and had later tested positive for COVID-19.'° He affirmed that between March 18
and March 27, Perdue had identified 28 employees who potentially had COVID-19
and were taken out of work.'' On March 30, Perdue shut down operations to perform
a deep cleaning of the facility given the large number of cases.!”
Perdue’s retained expert, Alfred E. Bacon, II], M.D. (hereinafter “Dr.
Bacon”), testified that there are three modes of transmission of COVID-19. The
high-risk mode is droplet spread, which is the “number one risk factor.” Airborne
spread is “very low risk,” and “surface areas” are “minimal risk.”!3 — During his
° Initially, the date Fowler’s symptoms began was incorrectly asserted as March 22 in the Petition.
Mrs. Fowler clarified, during the Board proceedings, that she “got it wrong” and it was in fact
March 27. Jd. at 86. This corrected date, March 27, was confirmed through Fowler’s medical
records. Rec. Tab. 4, Dep. Tr. of Alfred E. Bacon, II, M.D.) (hereinafter “Dep. Tr. of Dr. Bacon’)
at 10, 31.
’ Tr. of Bd. Hr’g at 33; Rec. Tab. 3, Dep. Tr. of Dr. Brow (hereinafter “Dep. Tr. of Dr. Brown”)
at 77.
® Both Dr. Brown and Perdue’s retained expert, Dr. Bacon, testified by deposition prior to the
November 17 hearing.
* Dep. Tr. of Dr. Brown at 78-79.
'© Tr, of Bd. Hr’g at 112-13, 114-15.
"Td at 113.
12 7.
'3 Dep. Tr. of Dr. Bacon at 21.
testimony, Dr. Bacon confirmed the statement in his report that “there is no doubt
that in [Fowler’s workplace] environment he acquired COVID-19,”'* and that he
was reasonably certain that Fowler did not acquire COVID-19 from his home
environment “based on [his] lack of any contact outside the house, except for going
to the grocery, which certainly does have risks but lower risks than the cafeteria.”
Dr. Bacon also stated that Perdue, as a workplace with a high-density population,
would be a much higher-risk setting than, for example, a grocery store.'!° Dr. Bacon
stated that “the average time to develop [COVID-19] is about 5 and a half days
postexposure” with “48 hours” being the earliest.'’ A “close contact,” in other words
the duration of time it typically takes to contract COVID-19 while near a COVID-
positive individual, is considered to be fifteen minutes.'®
Dr. Brown’s testimony was confined primarily to the extent of Fowler’s
injuries. As to the causation of Fowler’s COVID-19, Dr. Brown agreed with Dr.
Bacon that the most likely source was Fowler’s workplace.'? However, he could not
make an independent determination as to causation to a reasonable degree of medical
certainty without a further understanding of Fowler’s other contacts, as he had never
asked him questions pertaining to those.”°
On December 31, 2020, the Board issued its Order denying Fowler’s Petition.
The Board found that Fowler had not proved that he had contracted COVID-19 from
his workplace, and that it need not determine whether COVID-19 is an occupational
'4 Td. at 22; Bd. Order at 5-6.
'S Dep. Tr. of Dr. Bacon at 22.
16 Td. at 36.
'7 Td. at 37.
'8 Td. at 19 (“It is all a question of timing and how close [one is] to other individuals and lack of
mitigating technique.”).
' Dep. Tr. of Dr. Brown at 32.
20 Td. at 40.
disease within the meaning of the Delaware Workers’ Compensation Act
(hereinafter the “Act”). Fowler filed a notice of appeal on January 13, 2021.7!
Following briefing, the Court held oral argument on December 21, 2021. The
Court has reviewed the full record (hereinafter the “Record”) and all submissions of
the parties. Accordingly, this case is ripe for decision.
Il. PARTIES’ CONTENTIONS
Fowler argues that he was subject to a “high-density [work] environment,
including regular and consistent meals in the cafeteria” that presented a particularly
increased risk, or “enhanced hazard,” of COVID-19 exposure.”” In support of this
position, Fowler points to Dr. Bacon’s opinion in his expert report, as confirmed in
his testimony, that “there is no doubt” that he acquired COVID-19 from his
workplace.” He argues that the Board’s conclusions about “other possibilities” of
COVID-19 exposure are not supported by substantial evidence. In addition, Fowler
contends that the Board committed legal error in applying an incorrect burden by
stating that “no one can say for sure where [Fowler] contracted [COVID-19].””*
In arguing these points, Fowler contends that even though Dr. Bacon and Dr.
Brown may not have been aware of all of Fowler’s potential “social contacts,” the
Court can make an inference, given their testimony about the “high risk” of Perdue’s
workplace versus other contacts, that their expert testimony would not change if
confronted with such information.”> Additionally, some of the other contacts, such
as Fowler’s getting a birthday present from Walmart for his daughter on March 1,
are inconsequential because they fall outside the relevant range of time to develop
21D1 1,
2 Fowler’s Opening Br. at 26 n.2 (D.I. 11).
3 Td. at 23.
*4 Td. at 27-28.
25 Fowler’s Reply Br. at 9 (D.I. 15).
symptoms following exposure.” For these reasons, Fowler requests that this Court
reverse the Order and find both that Fowler has established that he contracted
COVID-19 in the workplace and that COVID-19 is an occupational disease.
Perdue conceded at oral argument that some of the statements in the Board’s
Order, as mentioned supra, amounted to speculation. However, Perdue argues that
the Board made credibility determinations and found both Dr. Brown’s and Dr.
Bacon’s testimony to be non-credible because they were not presented with all the
salient contacts: e.g., Fowler did not report to Dr. Bacon whether he had 1) been
present at Dr. Brown’s office on March 16 without wearing a mask or social
distancing while other patients were present; 2) picked up his medications at a
pharmacy; or 3) worn a mask while pumping gas or washed his hands afterwards.”’
Thus, Defendant argues that Fowler possibly had additional contacts beyond those
of which Dr. Bacon was aware, and that such contacts and exposure could have
altered Dr. Bacon’s opinion.*® Accordingly, Perdue contends that the Board
“correctly found . . . that [Fowler] failed to provide any evidence to establish that it
is more likely than not that [he] was exposed to the virus at Perdue, as opposed to a
possible exposure at any of his other contacts outside of work.””? Perdue requested
at oral argument that if this Court is inclined to reverse, it remand the decision for
further inquiry regarding whether or not the additional contacts would alter the
medical experts’ testimony regarding causation.
I. STANDARD OF REVIEW
On appeal from an administrative board’s final order, this Court must
determine whether the board’s findings are supported by substantial evidence and
*6 Id. at 8.
*7 Perdue’s Answering Br. at 25, 26 (D.I. 12).
28 Td. at 26.
29 Td.
are “free from legal error.”°° The Court does not weigh the evidence or make its
own factual findings—trather, it determines if the evidence was adequate to support
the administrative board’s factual findings.*! Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”°?
Under the substantial evidence standard, the Court must “search the entire record to
determine whether, on the basis of all of the testimony and exhibits before the
[board], it could fairly and reasonably reach the conclusion that it did.”*? In addition,
the Court must view the record in the light most favorable to the prevailing party.*4
However, the Court’s deference to the board’s decision is not “altogether without
teeth,”>° and the Court need not “defer to findings that are not rationally supported
by substantial evidence in the record.”*°
With respect to questions of law, the Court’s review is de novo to determine
“whether the Board erred in formulating or applying legal precepts.’ Hence, if the
administrative board’s decision is free from legal error and supported by substantial
evidence, it must be affirmed.*8
3° Optima Cleaning Sys. v. Unemployment Ins. Appeal Bd., 2010 WL 5307981, at *2 (Del. Super.
Dec. 7, 2010).
3! Td. (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
2 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
33 Nat'l Cash Register v. Riner, 424 A.2d 669, 674-75 (Del. Super. 1980) (citing Winship v. Brewer
School Comm., 390 A.2d 1089, 1092-93 (Me. 1978)).
4 Wyatt v. Rescare Home Care, 81 A.3d 1253, 1259 (Del. 2013).
3° Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1217 (Del. 2015).
36 Td. at 1222.
37 Bermudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Aug. 16, 2006),
aff'd, 929 A.2d 783 (Del. 2007) (citing Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156
(Del. 1998); Hudson v. State Farm Mut. Ins. Co., 569 A.2d 1168, 1170 (Del. 1990)).
38 Motiva Enter. y. Sec’y of Dept. of Nat. Res. & Envtl. Control, 745 A.2d 234, 242 (Del. Super.
1999).
IV. DISCUSSION
A. The Board committed legal error, and failed to base its decision upon
substantial evidence, by acting as its own expert and speculating regarding facts
not in the record.
At the outset, the Court does not take issue with the Board’s prerogative to
assess Dr. Bacon’s and Dr. Brown’s opinions by determining whether they are based
upon accurate and complete information regarding Fowler’s contacts. To this point,
Dr. Bacon did give his opinion with the caveat that it was based “on the lack of any
contact outside the house, except for going to the grocery, which certainly does have
risks but lower risks than the cafeteria.’ In addition, Dr. Brown did not have
knowledge of Fowler’s contacts beyond that stated by Dr. Bacon: instead, accepting
Dr. Bacon’s statements as true, Dr. Brown agreed that Fowler contracted COVID-
19 from his workplace.*? The Board found that Dr. Bacon was not aware of
additional contacts, which in turn implicated Dr. Brown’s finding, as it was based
on Dr. Bacon’s report—although the Board did not question the medical experts’
credentials as infectious disease experts.
However, the Board may not substitute its own purported knowledge for that
of the experts in the fields of their expertise. In this case, the Board improperly relied
upon knowledge apparently gained from extrajudicial sources (and notably without
any attribution to such sources) to draw its own conclusions regarding causation of
Fowler’s COVID-19. The Board speculated as follows regarding the causation of
Fowler’s illness—a conclusion subject to the expertise of an infectious disease
expert, not a lay board:
3° Dep. Tr. of Dr. Bacon at 22.
Dep. Tr. of Dr. Brown at 32.
(1) “[M]ore than 12 million Americans have contracted COVID-19
since March 2020 from various sources. This virus is prevalent
throughout the United States and the world, so the Board believes that
[Fowler] could have contracted the virus in many ways and many
places.””"!
(2) “There was no testimony indicating that [Fowler] wore gloves at the
gas pumps or washed his hands immediately after touching the gas
pump, so it is just as possible that [Fowler] contracted COVID-19 from
an exposure at Royal Farms as at Perdue.””?
(3) “There are a tremendous number of places where a person can
contract COVID-19 and essential businesses have remained open
since the beginning of this worldwide pandemic. At a bare minimum,
[Fowler] went to Royal Farms, Walmart, Dr. Brown’s office, a
laboratory, and work during in [sic] the weeks leading up to his
diagnosis and he could have caught COVID-19 in any of those
places.”
(4) “Although these are all unknown factors and possibilities, those
possibilities are just as likely places and circumstances that could have
exposed [Fowler] to the virus; the point is no one can say for sure
where [Fowler] contracted it... .”44
While this Court is called upon to take “due account” of the Board’s
“experience and specialized competence” with regard to factual determinations,”
“| Bd. Order at 24 (emphasis supplied).
“2 Td. at 21 (emphasis supplied).
“3 Td. at 24 (emphasis supplied).
“4 Id. (emphasis supplied).
S Histed v. EI. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
9
the above pronouncements by the Board concern matters beyond that expertise. The
Board is simply not qualified to determine how likely it is for an individual to
contract COVID-19 in certain environments—and it is certainly not qualified to
conclude that it is “just as likely” that Fowler contracted the disease at other places
that he visited in the weeks prior to onset as at his workplace.
Similarly, the Court does not question the Board’s right to assess the
credibility of witnesses, notably Fowler himself. *° However, the Board may not, in
questioning the veracity of some of Fowler’s testimony, substitute additional facts
not supported by evidence in the record for facts provided by Fowler, or otherwise
speculate as to facts not found in the record. The Board did both in its Order:
(1) “[T]he Board believes [Fowler] went to Walmart or other stores
more often than [Fowler] suggests and it is possible he was exposed
to COVID-19 at Walmart.’*”
(2) “[Fowler] and his family had numerous contacts outside of
Perdue in the weeks leading to his diagnosis and, therefore, the Board
finds that [Fowler] has not met his burden.”“®
(3) “Furthermore, [Fowler’s] daughter was attending school and
afterschool activities, as well as riding the school bus, on a daily basis
until the State of Emergency was imposed on March 13", so she could
have contracted COVID-19 and been asymptomatic, but still passed
it on to [Fowler].”*”
“6 See Patterson v. Brandywine Counseling Inc, 2010 WL 4513539, at *2 n.39 (Del. Super. Nov.
3, 2010) (refusing to “second-guess” a Board’s determination of the credibility of witnesses); see
also Johnson vy. Chrysler Corp., 213 A.2d 64, 67 (Del. 1965) (reversing the trial court for
determining the question of credibility of witnesses).
‘7 Bd. Order at 20 (emphasis supplied).
48 Id. at 24 (emphasis supplied).
“? Td. (emphasis supplied).
10
Thus, while the Board may have questioned Fowler’s credibility, it could not
speculate that, in addition to the March 1 Walmart visit to which his wife admitted
(which, incidentally, was far beyond the average incubation period to which Dr.
Bacon testified), Fowler visited Walmart and other unspecified retail establishments
on other occasions prior to the onset date of March 27 when there is no evidence in
the record of such visits. Similarly, the Board could not manufacture “numerous”
unspecified contacts, not supported by any testimonial or other evidence, simply
because it disbelieved Fowler’s testimony regarding the contacts to which he
admitted. Finally, it was improper for the Board to speculate that Fowler’s daughter
experienced an asymptomatic course of the disease when there is absolutely no
evidence in the record that she ever contracted COVID-19.
In this case, all expert testimony on causation points in one direction. Both
experts agreed that Fowler contracted COVID-19 from his workplace with levels of
certainty ranging from “no doubt’””? to a concurring agreement.”!
The Delaware Supreme Court has previously held that the Board cannot
ignore “unrebutted medical evidence” and substitute its own judgment for that of a
medical expert.” Here, the Court finds that in some instances the Board made
statements, which could be considered either findings or conclusions, that ignored
the unrebutted medical testimony, and substituted it with findings that were not
rationally supported by substantial evidence in the record.*? For example, Dr. Bacon
said on multiple occasions that Perdue’s work environment, specifically the cafeteria
°° Dep. Tr. of Dr. Bacon at 22; Bd. Order at 5-6.
>! Dep. Tr. of Dr. Brown at 32.
°2 Pusey v. Natkin & Co., 428 A.2d 1155, 1157 (Del. 1981); cf Clements v. Diamond State Port
Corp., 831 A.2d 870, 878 (Del. 2003) (“It is well established that the Board cannot substitute its
judgment to nullify the objective findings of a medical expert that fully support the claimant's
subjective complaints.”).
°3 See Murphy & Landon, 121 A.3d at 1222 (“Even though our standard of review of
[administrative board] decisions is deferential, it is not meaningless, and we need not defer to
findings that are not rationally supported by substantial evidence in the record.”).
ll
setting, was a high-density area that is more likely to lead to exposure.™ In the face
of this unrebutted expert testimony, the Board referred to “other possibilities” such
as getting gas or purchasing a gift at Walmart, which the Board deemed “just as
likely” as sources for Fowler’s COVID-19.*
However, many of these “other” contacts—both actual and hypothetical—are,
based upon Dr. Bacon’s unrebutted testimony, less likely to have been the cause of
the exposure. No expert testimony was presented that the act of getting gas outside
or going to a grocery store was equivalent to sitting in a cafeteria, shoulder to
shoulder, and eating with co-workers for a duration long enough to contract the virus.
In fact, Dr. Bacon was asked this precise question, and he responded that a “grocery
store” was considered “low risk” and “any work environment with a high density of
people” was “high risk.”°° In addition, Dr. Bacon testified that eating increases the
droplets and contagion in the room and that to contract the disease an individual
needs at least fifteen minutes of contact with another person.*”
In short, the Board failed to consider 1) the lower probability these additional
contacts have of spreading COVID-19 given the expert testimony, 2) the lack of
evidence in the record that COVID-19 positive people were around Fowler in these
other locations or events, and 3) the decreased likelihood of some events’ being the
source of exposure given the time frame one must consider for contracting the
disease following exposure (e.g., Fowler’s visit to Walmart on March 1, 26 days
prior to his development of symptoms). Therefore, the Order must be reversed for
at least two reasons: (1) the Board rejected unrebutted expert testimony in the record,
*4 Fowler’s Opening Br. at 15 (“Dr. Bacon characterized the cafeteria as a ‘high risk environment’
because (1) people are in close contact; (2) people are speaking, chewing, eating, spewing droplets
throughout the air environment, and no one is wearing masks.” (citing Tr. of Bd. Hr’g at 42-43;
Dep. Tr. of Dr. Bacon at 19)).
°> Bd. Order at 24.
°6 Dep. Tr. of Dr. Bacon at 22, 36-37.
57 Td. at 19.
12
and instead relied upon its own purported expertise and extrajudicial knowledge
regarding the spread of COVID-19, to reach conclusions about causation in this case,
and (2) the Board relied upon its determination that Fowler had additional contacts
with the outside world, and additional potential exposure to the virus from a family
member (i.e., his daughter), despite a complete absence of any support in the record
for those purported facts.
This does not end the inquiry, however, concerning the proper disposition of
this appeal. The Court is troubled that Dr. Bacon—upon whose causation opinion
Dr. Brown explicitly relied—was seemingly unaware of certain facts regarding
Fowler’s contacts with the outside world that may have affected his causation
opinion, primarily because Dr. Bacon relied almost exclusively upon Fowler’s
wife’s account of Fowler’s non-workplace contacts leading up to the onset of his
illness,°® and because he had no opportunity to hear Mr. and Mrs. Fowler’s testimony
at the hearing (i.e., since Dr. Bacon testified by deposition prior to the hearing).
Specifically, (1) Dr. Bacon was apparently unaware that Fowler had visited Dr.
Brown’s office on March 16, 2020, eleven days before the onset of his symptoms;>?
and (2) while Dr. Bacon assumed that Fowler and his wife began “isolating” shortly
after the declaration of the State of Emergency on March 12, 2020, Mrs. Fowler
testified at the hearing that she and her husband did not begin “self-isolating” until
after Fowler visited the emergency room on March 29 and was told to self-isolate.*!
Therefore, this Court, rather than simply reversing, will reverse and remand
so that Dr. Bacon can be further questioned regarding whether these (and perhaps
°8 Td. at 8.
°° Dr. Brown testified—also by deposition prior to the hearing, and separately from Dr. Bacon’s
deposition—that fifteen patients were in his office that day, and that social distancing procedures
were not in place. Dep. Tr. of Dr. Brown at 45.
6° Dep. Tr. of Dr. Bacon at 8.
6! Ty. of Bd. Hr’g at 86-87.
13
other) contacts of which he was previously unaware would alter his opinion that,
to a reasonable degree of medical probability, Fowler contracted COVID-19 at the
workplace.
B. The Board erred by imposing an incorrect burden of proof upon Fowler.
The Order is also reversible for an entirely separate reason: the Board
committed legal error by imposing an incorrect burden of proof on Fowler as the
claimant. The appropriate burden is whether or not it is more likely than not that
Fowler contracted COVID-19 from his workplace. “Proof by a preponderance of
the evidence means proof that something is more likely than not. It means that
certain evidence, when compared to the evidence opposed to it, has the more
convincing force and makes you believe that something is more likely true than
not.”® As is apparent from the Board’s comments regarding causation noted supra,
the Board considered evidence of other contacts that the medical experts reported to
be lower risk—some not even substantiated by the record—to have the same
“convincing force” as exposure from the Perdue workplace, which the unrebutted
medical expert testimony deemed a high-risk environment for the transmission of
COVID-19.
Moreover, the Board committed legal error by applying what appears to be an
impossible, and incorrect, burden upon Fowler in his effort to prove that he had
contracted COVID-19 from the workplace. According to the Board, “There are a
tremendous number of places where a person can contract COVID-19. . . [t]he
62 F.g., it appears that Dr. Bacon may not have been aware that Fowler went to Royal Farms to
obtain gas for his vehicle in the weeks prior to onset, but given Dr. Bacon’s observation that an
(indoor) grocery store visit is a low-risk contact, it appears unlikely that he would opine that
(outdoor) gas station visits would alter his opinion as to causation.
63 ReCor Med., Inc. v. Reinhard Warnking & Sound Interventions, Inc., 2013 WL 3760022, at *9
(Del. Ch. May 31, 2013) (internal quotations and citation omitted); Delaware’s Civil Pattern Jury
Instructions at 37 (defining the preponderance of the evidence standard with the same language).
14
point is no one can say for sure where [Fowler] contracted [COVID-19].”™ The
point here, however, is that Fowler was not required to say “for sure” where he
contracted COVID-19—essentially a “beyond a reasonable doubt” standard. Rather,
he is required only to produce evidence establishing by a preponderance—i.e., more
likely than not—that he contracted COVID-19 at Perdue. He has done so through
the testimony of Dr. Bacon—assuming, of course, that the additional contact
information referenced supra does not alter Dr. Bacon’s previously provided
opinions.
The Board also used the virulent nature of the disease to impose an improperly
high burden on Fowler. As noted supra, because (at least according to the Board)
there are a number of places where Fowler could have contracted COVID-19,
Fowler is unable to establish by a preponderance of the evidence that he contracted
it at Perdue. However, Dr. Bacon, utilizing his expertise, was able to classify risks
as “high,” “low,” and “minimal,” and applying those risk levels, he was able to
determine, to a reasonable degree of medical probability, that Fowler contracted the
disease at Perdue.
To be sure, immediately prior to announcing its determination at the close of
the Order, the Board stated that it “does not believe that it is more likely than not
that [Fowler] contracted COVID-19 at Perdue based on the evidence presented.”
However, this brief acknowledgement of the preponderance standard is belied by
the Board’s analysis of the facts—both actual and speculative—in reaching its
decision.
64 Bd. Order at 24 (emphasis supplied).
65 Id.
15
Fowler was not required to negate all possible non-workplace exposures to
COVID-19 to meet his burden. Rather, he was required to show that it was more
likely than not that he contracted COVID-19 from his workplace as compared to his
outside activities that are supported by the record.
C. The Court will not reach the issue of whether COVID-19 qualifies as an
occupational disease.
Fowler has asked the Court to determine that COVID-19 qualifies as an
occupational disease pursuant to the Act. The Board, however, never reached that
issue because it determined that Fowler had not shown that he contracted the disease
at his workplace. Therefore, the issue is not before the Court, and the Court declines
to decide it at this time.®’
V. CONCLUSION
For the reasons explained supra, this matter is REVERSED and
REMANDED for further proceedings consistent with this opinion as follows:
1. Dr. Bacon should testify as to whether additional relevant contacts of
which he may not have been aware would alter his opinion that Fowler
contracted COVID-19 at his workplace.
2. The Board should consider only social contacts that are supported by
substantial evidence when determining whether Fowler has met his
burden and should not speculate as to other possibilities, and further the
6° See Hoult v. Workers' Comp. Com'r, 383 S.E.2d 516, 519 (W. Va. 1989) (“In proving . . . causal
connection, ‘[a] claimant in an occupational disease case is not required to negative all possible
non-occupational causes of the disease.’” (citation omitted)); 100A C.J.S. Workers' Compensation
§ 1055 (“The claimant is not required to negate all possible nonoccupational causes of the disease.”
(citation omitted)).
67 See Ingino-Cacchioli v. Infinity Consulting Solutions, Inc., 2021 WL 3702442, at *2 (Del. Super.
Aug. 19, 2021) (observing that the Board is the “appropriate decision-making body” to make a
determination of whether COVID-19 is defined as an occupational disease “in the first instance”).
16
Board should weigh relevant contacts in the record in light of the
unrebutted expert testimony.
3. If the Board finds that Fowler has met his burden to show that he
contracted COVID-19 at Perdue, the Board should go on to determine
whether or not COVID-19 is an occupational disease pursuant to the
Act.
Jurisdiction is not retained.
IT IS SO ORDERED.
Ml
Judge
NEPYtls
Via File & ServeXpress
oc: Prothonotary
Counsel of Record
17