Hudson v. Beebe Medical Center ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CAROL HUDSON, )
)
Appellant/ )
Claimant-Below, )
)
v. ) C.A. No. S23A-10-002 NEP
)
)
BEEBE MEDICAL CENTER, )
)
Appellee/ )
Employer-Below. )
Submitted: November 1, 2023
Decided: January 3, 2024
MEMORANDUM OPINION AND ORDER
Upon Appeal from the Decision of the Industrial Accident Board
AFFIRMED
James R. Donovan, Esquire, Doroshow, Pasquale, Krawitz & Bhaya, Dover,
Delaware, Attorney for Appellant.
Keri L. Morris-Johnston, Esquire, Marshall, Dennehey, Warner, Coleman &
Goggin, Wilmington, Delaware, Attorney for Appellee.
Primos, J.
Before this Court is the appeal of Carol Hudson (“Ms. Hudson”) from the
decision of the Industrial Accident Board (the “Board” or the “IAB”) denying her
petition for worker’s compensation benefits for her COVID-19 illness. The Board
found that Ms. Hudson failed to prove by a preponderance of the evidence (1) that
she contracted COVID-19 at the workplace of her employer, Beebe Medical Center
(“Beebe”) and (2) that COVID-19 was an occupational disease in the context of her
employment at Beebe.
Ms. Hudson worked as a front-line nurse for Beebe on a COVID-19 floor in
the fall of 2020. She contracted COVID-19 at some point in October 2020 and was
hospitalized on October 21. Her two sons, Michael and Skyler Hudson, contracted
the disease around the same time. Tragically, Michael Hudson died of COVID-19
complications while Ms. Hudson was in the hospital. Ms. Hudson believes that she
contracted COVID-19 at work and subsequently infected her sons. Beebe argues
that she was more likely infected outside of work, likely by her son Michael.
For the reasons that follow, the Court finds that the Board’s conclusion on the
first issue—that Ms. Hudson failed to prove that she contracted COVID-19 at
work—is supported by substantial evidence and free from legal error. The Board’s
decision is therefore AFFIRMED on that basis and the Court need not reach the
occupational disease issue.
FACTUAL AND PROCEDURAL BACKGROUND
On October 7, 2021, Ms. Hudson filed a Petition to Determine Compensation
Due with the Board.1 The Board held a hearing on Ms. Hudson’s petition on
September 26, 2022.2 Ms. Hudson presented video testimony from her surviving
son, Skyler, and testified live at the hearing herself. Jennifer Montgomery, a Beebe
1
R. Tab 1, Claimant’s Pet. to Determine Compensation Due to Injured Employee.
2
R. Tab 2, Hr’g Tr. Sept. 26, 2022 [hereinafter “Hr’g Tr.”].
2
employee, testified for Beebe. Orn Eliasson, M.D., and Alfred E. Bacon, III, M.D.,
testified via deposition as experts for Ms. Hudson and for Beebe, respectively.
I. The Hudson Household
In the fall of 2020, Ms. Hudson and her two sons, Skyler and Michael, lived
together in a five-to-six-bedroom farmhouse.3 Ms. Hudson worked at Beebe, Skyler
attended the University of Delaware virtually,4 and Michael helped to care for the
family farm.5 Ms. Hudson confirmed that Michael handled various tasks for the
family farm, including going to the farmer’s market and making deliveries to
customers.6 Michael would wear a mask when making deliveries and going to
stores.7 Skyler testified that the farmer’s markets occurred twice a week for four
hours at a time.8
Ms. Hudson did some shopping but would always wear a mask and stay six
feet away from other shoppers.9 Ms. Hudson and Michael would often order food
to carry out and dined inside restaurants on two occasions.10 Michael drove Ms.
Hudson to work at Beebe each day, about 20 to 25 miles per Skyler’s estimation.11
Ms. Hudson confirmed that Michael drove her to work and that they would eat
together in the car.12 The drive took approximately 35 to 45 minutes depending on
traffic.13 Credit card records showed that someone in Ms. Hudson’s household made
3
R. Tab 7, Claimant’s Ex. 2 [hereinafter “Skyler Hudson Dep.”] at 14.
4
In-person classes were suspended because of the COVID-19 pandemic. Id. at 5.
5
Id. at 16.
6
Hr’g Tr. at 92–94.
7
Id. at 94.
8
Skyler Hudson Dep. at 18.
9
See Hr’g Tr. at 53.
10
Id. at 51–53.
11
Skyler Hudson Dep. at 28.
12
Hr’g Tr. at 76.
13
Id. at 83.
3
purchases at a number of restaurants and stores on or around October 13, 14, and
15.14
II. Working Conditions at Beebe
Ms. Hudson testified that she has been working for Beebe for 39 years and
was working as a nurse in 2020.15 She stated that work was chaotic and very stressful
on a day-to-day basis when COVID-19 patients started arriving at the hospital.16 She
worked 48 to 60 hours a week because Beebe did not have enough nurses.17
Regarding personal protective equipment (“PPE”), she testified that Beebe supplied
gowns, masks, face shields, and gloves.18 Ms. Hudson was generally dissatisfied
with the quality of the PPE provided.19 Nevertheless, she maintained that she always
wore PPE when caring for patients and that she was very careful about wearing her
PPE properly.20
Beebe called Jennifer Montgomery (“Montgomery”), a nurse case manager
for worker’s compensation and FMLA at Beebe, as a witness.21 She testified that
nurses were required to wear surgical masks for all direct patient care and N-95
masks for COVID-positive or suspected COVID patients.22 Montgomery agreed
that the situation was at times chaotic in some respects, but not with respect to PPE
distribution.23 To her knowledge, nurses and other employees always had adequate
14
See id. at 76–80.
15
Id. at 45.
16
Id. at 46.
17
Id. at 51.
18
Id. at 48.
19
See id. at 48–50 (describing issues with expired gowns, ill-fitting masks, and breaking mask
strings, and explaining that the masks aggravated Ms. Hudson’s asthma).
20
See id. at 72–74.
21
Id. at 97.
22
Id. at 103.
23
Id.
4
PPE.24 On cross-examination, however, Montgomery acknowledged that she was
not involved with day-to-day activities on the floor on which Ms. Hudson worked.25
Montgomery also testified that whenever a Beebe employee arrived for work,
the employee’s temperature was taken and the employee would be asked a series of
questions about potential symptoms. 26 If the employee answered yes to any of the
questions, or otherwise exhibited symptoms, he or she would be turned away and
had to be cleared by a COVID test before coming back to work.27 Ms. Hudson
agreed on cross-examination that Beebe had a policy of checking for symptoms
when employees arrived for work, and that she would not have been allowed to enter
if she had indicated that she was experiencing COVID-like symptoms.28
In October of 2020, the hospital assigned a number of COVID-19 patients to
Ms. Hudson’s care.29 Several incidents stood out to her that month. First, on an
unspecified date in October, an elderly patient tested positive for COVID after Ms.
Hudson had already cared for him for several days without COVID protocols in
place.30 On October 8, she lost her high-quality face shield and Beebe replaced it
with a cheaper, less effective alternative.31 Perhaps most significant, on October 12,
Ms. Hudson was leaning directly over an unmasked and critically ill COVID-19
patient and trying to resecure the patient’s ventilator mask when her own mask band
24
See id. at 104 (“Q: But are you aware of any nurses or employees not having PPE? A: No. . . .
We feared we would get to that and we did not get to the point where we did not have PPE for
staff.”).
25
Id. at 107.
26
Id. at 101–02.
27
Id. at 102.
28
Id. at 69–70.
29
Id. at 55–56.
30
Id. at 59–60.
31
Id. at 56–57.
5
broke.32 Ms. Hudson testified that she immediately reported the incident and
obtained a new mask.33
III. Timeline of COVID Symptoms
Skyler testified that his mother was the first in the household to exhibit
COVID-19 symptoms by several days,34 beginning on October 15.35 Her initial
symptoms included heavy coughing, fatigue, and a headache.36 He recalled that
Michael began showing symptoms about three days later,37 “[l]ate on the 17th.”38
Michael had nausea, a cough, and a fever.39 Skyler testified that he became sick a
day after Michael,40 on October 18.41 At that point, he went to get tested for COVID-
19 and persuaded Ms. Hudson to go with him.42 They both tested positive.43 Skyler
testified that Michael was “perfectly healthy for at least a couple days” after Ms.
Hudson started showing symptoms and noted that he was still well enough to drive
Ms. Hudson to the emergency room when her symptoms became severe.44
Like Skyler, Ms. Hudson testified that she was the first in her household to
experience COVID-19 symptoms, followed by Michael and then Skyler.45 She
stated that her symptoms began around October 14 or 15 but she did not realize she
32
Id. at 60–62.
33
Id. at 62–63. Montgomery testified that she found no documentation of a broken mask or a
request for a new mask on or around October 12. Id. at 105. She agreed, however, that the incident
could have occurred as described by Ms. Hudson. Id. at 108.
34
Skyler Hudson Dep. at 8.
35
Id. at 20–21.
36
Id. at 8.
37
Id. at 9.
38
Id. at 21–22.
39
Id. at 9.
40
Id. at 9–10.
41
Id. at 22.
42
Id. at 10.
43
Id. Skyler believed that Ms. Hudson had already been hospitalized by the time the test results
came back. Id.
44
Id. at 12–13.
45
Hr’g Tr. at 63.
6
was sick at the time because she “had been coughing for months.”46 She repeated
several times throughout her testimony that coughing and shortness of breath were
regular symptoms for her due to asthma and various allergies.47
Ms. Hudson testified that she worked through October 19 and attended her
aunt’s funeral on October 20.48 She developed a fever the night of October 19 or
20.49 When she returned home from the funeral, Skyler insisted that she had
COVID-19.50 She did not believe him but agreed to go and get tested.51 On October
21, Ms. Hudson felt off-balance and dizzy.52 She told Michael that she was really
sick and he drove her to the emergency room.53 She testified that Michael died the
following day, October 22, having first exhibited symptoms on October 19.54 Ms.
Hudson believes that she was infected at work and passed it to Michael.55
At the hearing, Ms. Hudson was confronted with two documents suggesting
that her symptoms actually began on October 19. The first was an emergency room
record indicating that she presented to the emergency room “with cough present
since Monday,” i.e., October 19.56 Ms. Hudson testified that this statement was
inaccurate.57 When asked for clarification, she stated that she had been coughing for
months.58 The second document was a COVID-19 intake form (created by Beebe
46
Id. at 66.
47
See id. at 67 (explaining that she would have mentioned the symptoms if they had been “any
different than my normal” but that she “had been coughing for months and . . . had been short of
breath for months”); id. at 68 (“I was accustomed to being short of breath and coughing nonstop.”);
id. at 70 (“My symptoms were no different than what I was used to for months, for months.”).
48
Id. at 54.
49
Id. at 84.
50
Id. at 54–55.
51
Id.
52
Id. at 55.
53
Id.
54
Id. at 94.
55
Id. at 64.
56
Id. at 83.
57
Id. at 84.
58
Id.
7
when she called in sick for work), which indicated a symptom start date of October
19. 59 Ms. Hudson stated that she did not recall giving that information.60
Ms. Hudson’s expert, Dr. Eliasson, concluded that her COVID-19 symptoms
began on October 14, 2020.61 He based his timeline on hospital records, emergency
room records, and Ms. Hudson’s recollection as conveyed to him in a written
questionnaire.62 Based on information from Ms. Hudson, Dr. Eliasson believed that
Michael became symptomatic on October 19, five days after what he believed to be
the onset of Ms. Hudson’s symptoms on October 14.63 Dr. Eliasson also indicated
that the mean incubation period after infection is approximately six days. 64 This
incubation period, he concluded, was consistent with Michael’s catching COVID-
19 from his mother.65 Finally, based on Skyler’s onset of symptoms around October
21 or 22, he concluded that Skyler could have caught it from either Ms. Hudson or
Michael.66
However, Beebe’s expert, Dr. Bacon, testified that Ms. Hudson had told him
that she felt fine the morning of October 19 when she attended her aunt’s funeral 67
and developed symptoms by that evening.68 Dr. Bacon agreed that emergency room
records from October 21 also indicated a symptom onset of October 19.69 According
to Dr. Bacon, Ms. Hudson also told him that Michael had started “feeling a little
59
See id. at 86.
60
Id.
61
R. Tab 6, Claimant’s Ex. 1 [hereinafter “Dr. Eliasson Dep.”] at 18.
62
Id.
63
Id. at 22.
64
Id. at 16.
65
Id. at 22.
66
Id. at 22–23.
67
Ms. Hudson testified that the funeral was on October 20.
68
R. Tab 10, Employer’s Ex. 2 [hereinafter “Dr. Bacon Dep.”] at 13; see also id. at 13–14 (“Q.
And, Doctor, to clarify, based on your evaluation of Ms. Hudson, when did she tell you she began
with symptoms? A. She was very clear October 19th, she said ‘I felt pretty good. I felt normal
when I went to my aunt’s funeral services and I wore a mask.’”).
69
Id. at 14–15.
8
lousy” two days earlier, on October 17.70 In response to Dr. Eliasson’s testimony
that Ms. Hudson’s symptoms began on October 14, Dr. Bacon opined that it would
not have been appropriate for a healthcare worker to continue working for several
days after the onset of COVID-19 symptoms.71 With regard to Michael, Dr. Bacon
testified that it would be “distinctly unusual” for someone to first present symptoms
and die so quickly thereafter, suggesting that Michael was sick for several days prior
to his death on October 21.72
IV. Conflicting Expert Opinions
Overall, Dr. Eliasson’s conclusion, to a reasonable degree of medical
probability,73 was that Ms. Hudson contracted COVID-19 “[o]n her job at Beebe
Hospital.”74 He testified, based on a number of studies, that healthcare workers like
Ms. Hudson faced a heightened risk of contracting COVID-19.75 He emphasized
that she was in a high-risk occupation and regularly interacting with COVID-19
patients. He also noted that Ms. Hudson had described feeling burnt out, working
long hours, and using “inadequate” PPE “based on her recollection.”76 He also
testified that she had multiple possible work exposures on October 8, 9, and 10 and
that she was exposed on October 12 when her mask strap broke. 77 In his opinion,
“she had an extraordinarily high risk of catching COVID on the job” and “it was
almost inevitable that she was going to catch COVID on this job given the
circumstances.”78
70
Id. at 19–20.
71
Id. at 16.
72
Id. at 20. This is a day earlier than Ms. Hudson testified that Michael died.
73
While not explicitly stated in the deposition, the parties stipulated at the hearing that Dr.
Eliasson’s testimony was to a reasonable degree of medical probability. See H’rg Tr. at 95–96.
74
Dr. Eliasson Dep. at 23–24.
75
See id. at 8–15.
76
Id. at 24–25.
77
Id. at 18–19.
78
Id. at 25.
9
Contrary to Dr. Eliasson, Dr. Bacon opined “with a high degree of medical
certainty” that Hudson “acquired Covid from her son Michael who was active in the
community, was sick before she was sick,” and “died the day she was admitted . . .
.”79 Dr. Bacon testified that a properly attired nurse with effective PPE is not at
greater risk of contracting COVID-19 than an employee in the general workforce.80
He stated that “in a well-designed environment, a hospital that’s properly managed,
which I would guess Beebe is,” the risk of contracting COVID-19 “would not be a
higher risk than other employment experiences.”81 In response to the studies cited
by Dr. Eliasson, Dr. Bacon agreed that the data was “good” but opined that frontline
workers are at a higher risk not from patient exposure (which is mitigated by proper
use of PPE) but by the necessity of going to work every day and thus leaving the
house more often.82 The cited studies, he opined, do not “remotely get to the point
of the matter in this case,” which he described as “what is the risk of one single
exposure to getting Covid in the healthcare environment with proper PPE.”83 That
data, according to Dr. Bacon, is “not well known.”84
Dr. Bacon emphasized that Ms. Hudson was “obsessed” with PPE and knew
how to use it well.85 He was aware of only one PPE breakdown that would have
increased Ms. Hudson’s exposure risk at work—the October 12 incident in which
her mask strap broke.86 He opined that a broken mask strap for five minutes posed
79
Dr. Bacon Dep. at 28.
80
Id. at 22.
81
Id. at 23.
82
See id. at 24 (“The acquisition of Covid in the healthcare environment is driven by more things
than just patient exposure. As a frontline person, I’m going to work everyday [sic] and I’m exposed
to my colleagues at work everyday. I’m stopping at the grocery store more, I’m out and about.”);
id. at 25 (“So statistically speaking, you know, most of the providers are getting Covid not from
patients, let’s be very crisp [sic] there.”).
83
Id. at 25.
84
Id.
85
Id. at 17–18.
86
Id. at 26.
10
a “limited risk” of infection (as compared to the 15 minutes required to be designated
a “high risk” exposure by the CDC).87 He also noted that it was possible but very
unlikely that an exposure on October 12 would lead to symptoms as early as October
14 as alleged by Dr. Eliasson.88
V. The Board’s Decision and Ms. Hudson’s Appeal
The Board issued a decision on October 24, 2022, denying Ms. Hudson’s
petition. The Board concluded that she had not met her burden of proving by a
preponderance of the evidence “both that she contracted COVID-19 from a
workplace exposure and that, with respect to her particular employment, COVID-19
constituted an occupational disease.”89 Ms. Hudson timely filed a notice of appeal
in the Superior Court for Kent County,90 and briefing followed.
On August 28, 2023, the Court issued a letter to the parties in which it sua
sponte raised a jurisdictional issue, i.e., that although the alleged injury had
apparently occurred in Sussex County, the appeal had been filed in the Superior
Court for Kent County.91 The parties responded and agreed that the Superior Court
for Kent County lacked jurisdiction and that the matter should be heard by the
Superior Court for Sussex County.92 Accordingly, the Court denied jurisdiction and
allowed Ms. Hudson 60 days to file a written election of transfer pursuant to 10 Del.
87Id.88
Id. at 26–27.
89
R. Tab 12, Hudson v. Beebe Med. Ctr., No. 1516467, at 33 (Del. I.A.B. Oct. 24, 2022)
[hereinafter “Board Decision”].
90
R. Tab 13, Notice of Appeal Filed Nov. 2, 2022.
91
Letter to Counsel (D.I. 18) (docket item or “D.I.” in Kent County case—see infra note 95). See
19 Del. C. § 2349 (providing that appeals must be filed in “the Superior Court for the county in
which the injury occurred”).
92
D.I. 19, 20 (docket items in Kent County case—see infra note 95).
11
C. § 1902.93 Ms. Hudson timely filed the election of transfer,94 and on October 31,
2023, the appeal was transferred to the Superior Court for Sussex County.95 On
November 1, 2023, the appeal was reassigned by the President Judge to the same
judicial officer to whom it had been assigned while in Kent County.96
STANDARD OF REVIEW
On an appeal from the Board, the Court’s inquiry is limited to whether the
Board’s conclusions are supported by substantial evidence and free from legal
error.97 Questions of law are reviewed de novo.98 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”99 In making this determination, the Court does not reweigh the
evidence, reassess witness credibility, or make its own factual findings or
conclusions.100 Rather, 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.”101 “If the Board’s decision is
93
Order (D.I. 21) (docket item in Kent County case—see infra note 95). See, e.g., Cooper v.
Capitol Nursing, 2010 WL 3447705, at *1 (Del. Super. Aug. 31, 2010) (transferring an Industrial
Accident Board appeal from New Castle County to Sussex County pursuant to 10 Del. C. § 1902);
Red Lobster v. Cole, 1998 WL 732955, at *1 (Del. Super. May 12, 1998) (transferring an Industrial
Accident Board appeal to Kent County); Fam. Ct. of Del. v. Giles, 384 A.2d 623, 624–25 (Del.
1978) (holding that an appeal from the Equal Employment Review Board filed in the Superior
Court in the wrong county should have been transferred to the correct county pursuant to 10 Del.
C. § 1902 rather than dismissed).
94
Election of Transfer (D.I. 24) (docket item in Kent County case—see infra note 95).
95
Order (D.I. 25) (docket item in Kent County case). The Kent County civil action number was
K22A-11-002; once it was transferred to Sussex County, the civil action number became S23A-
10-002. The D.I. citations to this point have referred to the Kent County civil action number. All
subsequent docket item references relate to the Sussex County civil action number.
96
Mem. From President Judge Jan R. Jurden (D.I. 6).
97
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007).
98
Id. at 1101.
99
Oceanport Indus., Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (citing Olney
v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
100
Christiana Care Health Servs. v. Davis, 127 A.3d 391, 394 (Del. 2015).
101
Nat’l Cash Register v. Riner, 424 A.2d 669, 674–75 (Del. Super. 1980).
12
free from legal error and supported by substantial evidence, this Court must sustain
the Board’s decision even if this Court might have decided the case differently if it
had come before it in the first instance.”102
DISCUSSION
Occupational diseases are compensable under the Delaware Workers’
Compensation Act in the same manner as injuries arising from accidents in the
workplace.103 In order to receive compensation for an occupational disease, the
claimant must show 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.”104 In a worker’s compensation case before the Board, the
claimant bears the burden of proving causation by a preponderance of the
evidence.105 A disease is not an occupational disease if contracted outside of the
workplace, even if it is an ailment that might qualify as a compensable occupational
disease if contracted in the workplace.106
102
Gutierrez v. Jamestown Painting, 2019 WL 972161, at *3 (Del. Super. Feb. 26, 2019).
103
See 19 Del. C. § 2328 (“The compensation payable for death or disability total in character and
permanent in quality resulting from an occupational disease shall be the same in amount and
duration and shall be payable in the same manner and to the same persons as would have been
entitled thereto had the death or disability been caused by an accident arising out of and in the
course of the employment.”).
104
Anderson v. Gen. Motors Corp., 442 A.2d 1359, 1361 (Del. 1982); accord Diamond Fuel Oil
v. O’Neal, 734 A.2d 1060, 1064 (Del. 1999).
105
Goicuria v. Kauffman’s Furniture, 1997 WL 817889, at *2 (Del. Super. Oct. 30, 1997) (“The
claimant has the burden of proving causation not to a certainty but only by a preponderance of the
evidence.”), aff’d, 706 A.2d 26 (Del. 1998) (TABLE).
106
See 19 Del. C. § 2301(4) (“‘Compensable occupational diseases’ includes all occupational
diseases arising out of and in the course of employment only when the exposure stated in
connection therewith has occurred during employment.”). While the issue of whether Ms. Hudson
contracted COVID-19 as the result of a workplace exposure is described as a stand-alone
“causation” inquiry by the Board in this case, see Board Decision at 25, the Delaware Supreme
Court has used the term “causation” to refer to the entire occupational disease test. See Diamond
Fuel, 734 A.2d at 1064–66 (noting that under the Anderson test, the employee bears the burden of
proving that he or she has contracted a compensable occupation disease, and determining that “the
13
I. The Board Applied the Correct Burden of Proof.
In order for a COVID-19 infection to be compensable, the burden is on the
claimant to show, inter alia, that it is more likely than not that he or she contracted
the virus in the workplace.107 First, the Court notes that the Board consistently stated
the correct standard of review throughout its causation analysis.108 Ms. Hudson
argues that the Board nevertheless applied a higher burden of proof than the one it
articulated. She contends that the Board required her to prove the exact date of
Board’s conclusion that O’Neal failed to sustain his burden of proof on causation lacks substantial
evidential support”). However, in the case of a viral infection, whether the disease was contracted
at work or elsewhere is an appropriate threshold inquiry. In terms of the occupational disease
“causation” test, contracting the virus at work is best characterized as a necessary element of the
first portion of the test, i.e., whether “the employer’s working conditions produced the ailment
as a natural incident of the employee’s occupation . . . .” Anderson, 442 A.2d at 1361 (emphasis
supplied). In a case where COVID-19 was contracted outside of work, the subsequent illness is
not an ailment produced by the employee’s working conditions. Of course, the fact that a disease
is contracted at the workplace does not necessarily mean that it qualifies as a compensable
occupational disease under the Anderson test. See id. at 1360 (an illness “does not become an
occupational disease simply because it is contracted on the employer’s premises”) (quoting Air
Mod Corp. v. Newton, 215 A.2d 434, 442 (Del. 1965)). See also Fowler v. Perdue Farms, Inc.,
2023 WL 6888918, at *9 (Del. Super. Oct. 18, 2023) [hereinafter Fowler II] (although employee
had contracted COVID-19 at the workplace, a poultry processing plant, his condition did not
qualify as a compensable occupational disease because the hazard of contracting the disease at the
plant was not distinct from that attending employment in general).
107
See Fowler v. Perdue Farms, Inc., 2022 WL 807327, at *7 (Del. Super. Mar. 16, 2022)
[hereinafter Fowler I] (“The appropriate burden is whether or not it is more likely than not that
Fowler contracted COVID-19 from his workplace.”) (emphasis in original). The cited decision is
referenced hereinafter as Fowler I to distinguish it from the later decision in the same case cited in
supra note 106 as Fowler II.
108
See, e.g., Board Decision at 22 (“In this case, Claimant bears the burden of proving both that it
is more likely than not that she contracted COVID-19 at work and that COVID-19 is an
occupational disease.”); id. at 25 (“In this case, Claimant has not proven that she contracted
COVID-19 from work. The evidence was inconsistent and does not support a finding that, more
likely than not, Claimant contracted COVID-19 from work on October 12, 2020.”); id. at 31
(“Based on all of the above, the Board concludes that Claimant failed to prove that it is more likely
than not that she contracted COVID-19 from work.”); id. at 31 n.1 (“[T]he fact that there is credible
evidence of a viable alternative to a workplace exposure weighs against the conclusion that
Claimant’s COVID exposure was more likely than not from work.”).
14
infection, which she posits is impossible in most or perhaps all COVID-19 cases in
light of the virulent but initially undetectable nature of the disease. 109
Ms. Hudson specifically takes issue with the Board’s emphasis on whether
she contracted COVID-19 when her mask band broke on October 12, arguing that
she was denied compensation solely because she could not prove that she was
infected during that specific incident. The second sentence of the Board’s causation
analysis—“evidence was inconsistent and does not support a finding that, more
likely than not, Claimant contracted COVID-19 from work on October 12,
2020”110—lends some support to this argument. That turn of phrase is unfortunate
because, as a matter of basic probability, the likelihood that Ms. Hudson acquired
COVID-19 at work at some point in October is higher than the likelihood that she
acquired it on October 12 specifically.
Viewed as a whole, however, the Board’s analysis addressed far more than
the October 12 mask incident. After concluding that it was unlikely that Ms. Hudson
contracted COVID-19 when her mask band broke on October 12, the Board turned
to the issue of her PPE use in general. It observed that Ms. Hudson “confirmed that
she always wore protective equipment” while caring for COVID-19 patients.111 The
Board credited Dr. Bacon’s conclusion that diligent PPE use significantly mitigated
her risk of contracting COVID-19 at work.112 The Board considered the possible
timelines of exposure—including the October 12 incident—and symptom onset.113
Moreover, the Board considered Dr. Eliasson’s and Dr. Bacon’s competing opinions,
including the data submitted by Dr Eliasson, and found Dr. Bacon more
109
Opening Br. at 15 (D.I. 3).
110
Board Decision at 25.
111
Id. at 26.
112
Id.
113
See id. at 26–29.
15
persuasive.114 Most importantly, the Board expressly adopted Dr. Bacon’s
conclusion that it was more likely that Ms. Hudson acquired COVID-19 from her
son Michael, rather than while working at Beebe.115
Ms. Hudson argues that “there will always be other possible sources of
infection” and that the Board’s analysis implicitly adopts an impossible standard for
any claimant to satisfy.116 Ms. Hudson is correct that the Board considered other
possible sources of exposure.117 However, the Board nowhere indicated that any
possible alternative to workplace exposure necessarily defeats a worker’s
compensation claim—rather, it explained that “credible evidence of a viable
alternative to a workplace exposure weighs against” a potential determination that
Ms. Hudson had satisfied her burden of proof.118 Read as a whole, the Board
weighed Ms. Hudson’s risk of exposure at work against possible out-of-work
exposures and concluded that the latter was more likely.119 This is a conclusion of
fact to be reviewed under the substantial evidence standard, not a misapplication of
the burden of proof that this Court can review de novo.
Ms. Hudson also argues that occupational disease case law generally does not
require an employee “to show the specific moment when their exposure caused them
to become ill.”120 She cites Diamond Fuel Oil v. O’Neal121 and Evans Builders, Inc.
114
See id. at 29–31.
115
Id. at 30 (“Dr. Bacon concluded that Claimant did not contract COVID from work, but it was
more likely that she acquired it from her son Michael, who became ill before Claimant, and passed
away the day after Claimant was admitted to the hospital. The Board agrees.”).
116
Opening Br. at 17 (emphasis in original).
117
See Board Decision at 31 (explaining that Ms. Hudson “could have been exposed to COVID-
19 outside of work, specifically from either of her sons, both of whom contracted COVID-19
during the same time frame”).
118
Id. at 31 n.1.
119
Cf. Fowler I, 2022 WL 807327, at *7 (concluding that a “brief acknowledgement of the
preponderance standard” was “belied by the Board’s analysis of the facts . . . in reaching its
decision”).
120
Opening Br. at 15.
121
734 A.2d 1060 (Del. 1999).
16
v. Ebersole122 as examples in which the prevalence of an illness-inducing chemical
or pathogen in the workplace was sufficient evidence to establish that the disease or
ailment arose from the claimant’s work.123 First, as explained above, the Board did
not require Ms. Hudson to prove that any one specific exposure at work caused her
illness—it required her only to prove that the COVID exposure leading to her illness,
more likely than not, occurred at work. Second, illness from COVID-19 is caused
by contracting the virus at a specific point in time, and that exposure either occurs at
the workplace or elsewhere. In Diamond Fuel, by contrast, the occupational disease
at issue was a kidney disease caused by “chronic exposure” to a chemical in the
workplace.124 Ebersole is closer, but still not on point. In that case, this Court
affirmed the Board’s conclusion that the claimant’s infection “was causally related
to his job duties” in light of expert testimony that the organism causing the infection
was “more prevalent in the poultry industry than in other environments.”125
Prevalence of a pathogen in the workplace may support a finding of compensability
by the Board; however, it does not mean that the Board errs as a matter of law in
considering viable competing theories of outside exposure.
Finally, this case differs from Fowler I in several critical respects. In that
case, the Board reviewed other possible sources of exposure—including those
classified as lower risk than Fowler’s workplace by unrebutted expert testimony—
and concluded that “no one can say for sure where [Mr. Fowler] contracted
[COVID-19].”126 This language and reasoning imposed, in effect, a beyond-a-
122
2012 WL 5392148 (Del. Super. Oct. 11, 2012), aff’d, 2013 WL 2371705 (Del. Feb. 11, 2013)
(TABLE).
123
Opening Br. at 16.
124
734 A.2d at 1064.
125
2012 WL 5392148, at *3.
126
Fowler I, 2022 WL 807327, at *7 (alterations in original) (quoting Fowler v. Perdue, Inc., No.
1501167, at 24 (Del. I.A.B. Dec. 31, 2020)).
17
reasonable-doubt standard on the claimant.127 Moreover, both the claimant’s and the
employer’s experts in Fowler I agreed that Mr. Fowler more likely than not
contracted COVID-19 in the workplace.128 Here, by contrast, Dr. Bacon129 opined
not only that Ms. Hudson, in his opinion, did not contract COVID-19 at Beebe, but
that, “with a high degree of medical certainty,” she contracted it from her son
Michael.130
Ultimately, Ms. Hudson takes issue with Dr. Bacon’s analysis and the Board’s
acceptance of it. Thus, while framed as an error of law, Ms. Hudson’s argument
“relates to the IAB’s consideration and weighing of evidence.”131 Therefore, the real
question posed by her arguments is whether the Board’s conclusion was supported
by substantial evidence in the record.
II. The Board’s Conclusion Is Supported by Substantial Evidence.
Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.132 “[T]he IAB may adopt the opinion
testimony of one expert over another; and that opinion, if adopted, will constitute
substantial evidence for purposes of appellate review.”133
First, Ms. Hudson takes issue with the Board’s decision to credit Dr. Bacon’s
testimony over Dr. Eliasson’s.134 Specifically, she notes that Dr. Eliasson presented
numerous studies showing that healthcare workers face a higher risk of contracting
COVID-19 than the general population and that Dr. Bacon “presented no studies,
127
Id.128
See id. at *5 (“In this case, all expert testimony on causation points in one direction.”).
129
Dr. Bacon was also the expert for the employer in Fowler I.
130
Dr. Bacon Dep. at 28.
131
Quality Assured Inc. v. David, 2022 WL 17442738, at *5 (Del. Super. Dec. 6, 2022).
132
Diamond Fuel, 734 A.2d at 1062.
133
Person-Gaines v. Pepco Hldgs., Inc., 981 A.2d 1159, 1161 (Del. 2009); see also Chrysler
Motors Corp. v. Taylor, 1992 WL 354212, at *4 (Del. Super. Nov. 2, 1992) (“The IAB is free to
accept one expert’s opinion over another.”).
134
Opening Br. at 17.
18
instead relying on his own opinion based on experiences working in one hospital
during the pandemic.”135
The Board, however, gave several reasons for crediting Dr. Bacon’s opinion
over Dr. Eliasson’s. First, it noted that his description of the timeline matched
emergency room records from October 21, 2020, much closer in time to the events
in question than Ms. Hudson’s statements to Dr. Eliasson.136 Second, it noted that
Ms. Hudson did not see Dr. Eliasson in person and that he did not obtain any
information from her about her or her household’s out-of-work activities.137 In
addition, the Board credited Montgomery’s testimony that Beebe supplied adequate
PPE, and noted that Dr. Eliasson had not contacted Beebe in order to assess
independently the adequacy of the PPE provided.138 With respect to the studies cited
by Dr. Eliasson, the Board was persuaded by Dr. Bacon’s opinion that those studies
did not speak directly to the risk of a healthcare worker’s contracting COVID-19
from patient exposure “while working in the hospital with proper protective
equipment.”139 That Dr. Bacon did not provide any contrary data140 does not negate
his qualifications to comment on the probative value of the data provided by Dr.
Eliasson. To this point, Ms. Hudson, not Beebe, bore the burden of proof before the
Board.
135
Id.136
Board Decision at 28.
137
Id. at 29. The Board did mischaracterize the extent of Dr. Eliasson’s concession—while he
agreed that he did not personally ask about Ms. Hudson’s out-of-work activities, he also testified
that he had some information about them from an earlier report by Dr. Bacon. See Dr. Eliasson
Dep. at 36.
138
Board Decision at 29–30.
139
Id. at 30.
140
Dr. Bacon stated that he could cite a paper showing that risk of exposure in a PPE-controlled
environment is “around five percent” compared to eleven to sixty percent in the home
environment, but there is no indication that the paper was ever identified or produced. See Dr.
Bacon Dep. at 25.
19
Ms. Hudson also notes that both experts agreed that long hours and burnout
raise the risk of infection by increasing instances of PPE misuse.141 While this is a
salient point, the Board placed great weight on both Dr. Bacon’s and Ms. Hudson’s
testimony that Ms. Hudson was very conscientious about PPE and about using it
correctly at all times.142 It is not this Court’s role to second-guess that judgment or
to reweigh the evidence de novo. Here, the Board acted within its discretion in
choosing Beebe’s expert over Ms. Hudson’s expert and “articulated its reasons for
doing so.”143 “Where, as in the instant case, substantial evidence exists to support
conflicting expert opinions, the Board is free to choose one expert’s testimony over
that of another.”144 Thus, that substantial evidence (or assuming arguendo, as Ms.
Hudson asserts, more substantial evidence) also supported Dr. Eliasson’s opinion is
not a sufficient basis to disturb the Board’s conclusions of fact on appeal.
Second, Ms. Hudson argues that she more likely than not contracted COVID-
19 at work because the disease is undeniably more prevalent in a COVID ward than
in the general community. She accuses Beebe and the Board of focusing too much
on the granular details of the timeline and ignoring the broader point that “every day
Ms. Hudson went to work, she encountered people with COVID-19.”145 This
argument, however, fails to address the Board’s factual finding that her son Michael
most likely became ill first and then transmitted the virus to Ms. Hudson. Despite
Skyler’s and Ms. Hudson’s testimony to the contrary, there was substantial evidence
in the record to support the conclusion that Michael contracted COVID-19 first.
141
See Dr. Eliasson Dep. at 15 (“So burnout every day increased the risk of COVID-19 infection
by 260 percent.”); see also Dr. Bacon Dep. at 29 (describing work on COVID floors as exhausting
and noting that “as people get more tired, they have breaks in their PPE”).
142
Board Decision at 26.
143
Gutierrez, 2019 WL 972161, at *4.
144
Id. at *5; cf. Hunsucker v. Scott Paper Co., 2023 WL 4078543, at *5 (Del. Super. June 16,
2023) (noting that such “substitution of judgment is not the role of the reviewing Court” where an
appellant objects to the Board’s having accepted one medical opinion over another).
145
Opening Br. at 18.
20
First, his day-to-day activities involved some risk of community exposure.146 His
death on October 21 or 22 suggests that he was exposed (and would have been
symptomatic) several days prior to that date. Second, Ms. Hudson purportedly told
Dr. Bacon that she became ill on October 19 and that Michael was symptomatic two
days earlier than that. The Board noted that Dr. Bacon’s testimony was consistent
with the treatment records he reviewed, specifically the emergency room records,
and found those contemporaneous records “more reliable than information obtained
months or years after the event.”147 Third, the Board found it unlikely that Ms.
Hudson would continue working after a discernable symptom onset—or be allowed
to do so by Beebe.148 Finally, Ms. Hudson’s own testimony suggested that the
coughing and shortness of breath she experienced as of October 14 was entirely
normal for her. She never adequately explained why she was unable to distinguish
her regular symptoms from COVID-19 at the time but believes she is able to do so
retroactively to testify that she became symptomatic before both of her sons.
Since the Board’s conclusion that Michael Hudson introduced the COVID-19
infection to the household is supported by substantial evidence (i.e., enough for a
reasonable mind to accept the conclusion), it is not dispositive even if, as Ms.
Hudson argues, she was at the highest risk of the three people in her household to
contract COVID-19. Certainly, there is substantial evidence pointing the other way
as well, particularly the consistent testimony by Ms. Hudson and Skyler regarding
the order in which the symptoms manifested within their household. However,
“[e]ven if the Court may have decided the case differently in the first instance, the
Court will not supplant its own judgment for that of the Board.”149
146
The Court does not mean to imply, nor does the record suggest, that anyone in Ms. Hudson’s
household behaved in a risky or irresponsible manner during this period.
147
Board Decision at 28.
148
Id. at 26–27.
149
Gutierrez, 2019 WL 972161, at *4.
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III. The Court Will Not Reach the Issue of Whether COVID-19 Qualifies as
an Occupational Disease in This Context.
The Board separately determined that Ms. Hudson failed to meet her burden
of establishing that COVID-19 was a compensable occupational disease. However,
the finding that she failed to prove by a preponderance of the evidence that she
contracted COVID-19 at work is sufficient to deny compensation.150 The Court
therefore need not reach the question of whether COVID-19 (if contracted by a nurse
at Beebe under these circumstances) would otherwise qualify as an occupational
disease under the Delaware Workers’ Compensation Act.
CONCLUSION
For the foregoing reasons, the Board’s conclusion that Ms. Hudson failed to
meet her burden of proving that it is more likely than not that she contracted COVID-
19 at work is free from legal error and supported by substantial evidence in the
record. Accordingly, the Board’s denial of Ms. Hudson’s Petition for Compensation
Due is AFFIRMED.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
150
See supra note 106.
22