The court of appeals holds an employee contracting COVID-19 from a co-employee meets the statutory requirements of an “accident arising out of and in the course of employment.” The worker’s compensation statute has a separate provision for when an occupational disease is compensable which does not include the “ordinary diseases to which the general public is exposed.” But that does not preclude an employee from arguing a disease is an “accident.” The court acknowledges the legislature has addressed certain communicable diseases but because it has not enacted a statute for COVID-19 claims, the court reverts to construing whether this is an accident. Under prior case law, “disease” and “accident” are not mutually exclusive.  The court references a 1965 case involving a seamstress who contracted pulmonary emphysema from lint exposure. Reilly v. Indus. Commission, 1 Ariz. App. 12 (App. 1965) (“the law in Arizona is that when a condition has developed, not instantaneously, but gradually, over a period of time, resulting in a definite though unexpected injury or disease, which injury or disease is definitely work-connected, then said injury or disease is the result of an ‘accident’ within the terms of our Workmen’s Compensation Act, and is compensable.”). In this case neither the employee nor employer argued COVID-19 is an “occupational disease,” and the court cites Ford v. Indus. Comm’n, 145 Ariz. 509 (1985) (explaining that, when the condition at issue is a disease, “either party is entitled to require that the claim be administered” under the occupational disease provisions).  More explanation is needed here; a paragraph should not end a thought by citing a case that may suggest something different from what the parties agreed.

Thus, any other non-occupational disease may qualify as an accident. As backup the court cites a pneumonia case from a defective exhaust system, a case where Lyme disease was contracted, a case involving an allergic reaction and a case of hepatitis.  The court distinguishes a string of Valley Fever exposure cases because of the impossibility of showing causation. The court accepts because person to person tracing is possible and a claimant “will occasionally” be able to trace the disease to the workplace. Coupled with the language in Reilly that a disease must be “definitely work-related” one can see where experts and lawyers will clash. The court then deferred to the Industrial Commission’s factual determination showing the exposure was from a co-employee.  As to the employee’s death, the “arising out of” requirement is a causation requirement and may be met when workplace risk is a “contributing factor.” The court concludes: “This is a mixed risk case. [Employee’s] risk of work-related exposure from interacting with potentially infected co-workers in person combined with his underlying medical condition (he was pre-diabetic and immune-compromised after a kidney transplant) resulted –legally and medically—in his death from COVID-19.”

The legislature should have acted long before COVID-19 to clarify recurrent issues with worker’s compensation, diseases, and correlation with language of “accident,” “arising out of,” and “contributing factor.”  We end up with protracted litigation and much will depend on the generosity or lack of generosity of an ICA judge. One final note: the court begins this opinion with gravitas by reminding us of COVID-19’s toll. We would rather just see clarity and coherence. And, as to simple things, clerks and courts should have words flagged in their writing program. Too often we see “statue” for “statute.”

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