SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Brittany Foster v. Primecare Medical of West Virginia, Inc.
Supreme Court of Appeals of West Virginia (SCA)
No. 23-726

Decided: May 27, 2025

A claimant need not prove that her occupation is at greater risk than the general population for COVID-19 if she presents evidence that she actually contracted COVID-19 at work.

Background:

The Claimant, a licensed practical nurse at Southern Regional Jail, contracted COVID-19 allegedly related to workplace exposures. The Employer denied the claim. The Claimant protested to the Board of Review (BOR), presenting testimony from her expert that the Claimant contracted COVID-19 in the workplace. The Employer presented testimony from its own expert but also a medical study (Risk Factors Study) reflecting that health care personnel were not at increased risk for contracting COVID-19 versus the general population. The BOR reversed the Employer’s denial and granted the claim. However, the Intermediate Court of Appeals (ICA) reversed the BOR. The ICA cited the six-factor test for an occupational disease detailed in WV Code Section 23-4-1(f), specifically the 4th factor, which requires that the disease does not come from a hazard “to which workmen would have been equally exposed outside of the employment.” The ICA found that the only evidence of record regarding the 4th Factor was the Risk Factors Study presented by the employer. The Claimant appealed to the SCA.

Holding:

The SCA reversed the ICA’s ruling, finding it clearly erroneous, and reinstating the BOR’s decision granting the claim. The SCA held that in a claim where COVID-19 is alleged to be work-related, statistical evidence as to the incidence of workplace-related risk versus outside risk is relevant, but not dispositive, in determining whether the disease is compensable. A COVID-19 claim can still be compensable if a preponderance of the evidence shows that the disease was contracted in the course of employment.

Takeaway:

The SCA’s ruling makes it significantly easier for a claimant to prove compensability on a COVID-19 claim, as the 4th prong of the statutory test is no longer an absolute bar to compensability if a claimant cannot or does not produce evidence that the disease does not come from a hazard “to which workmen would have been equally exposed outside of the employment.” It remains a question moving forward as to whether the courts will confine this interpretation to COVID-19 claims or whether they will expand it to include other communicable diseases.

Questions about this case can be directed to Evan J. Jenkins at 412-926-1419 or ejenkins@tthlaw.com.