Covid-19 May Be Compensable Injury Under Workers’ Comp Law

A nurse can recover workers’ compensation benefits for Covid-19 contracted as a result of multiple exposures in her workplace, even though she may also have been exposed to the virus in other settings, a West Virginia court said.

A majority of the evidence established that Brittany Foster got the virus in the course of and resulting from her covered employment, the West Virginia Supreme Court of Appeals said Tuesday. The court rejected the employer’s argument that Covid-19 wasn’t a compensable occupational injury because it wasn’t statistically likely that workers would be exposed to it more in their workplaces than elsewhere.

The Covid-19 pandemic has been over for several years, but this case demonstrates that legal issues surrounding the virus are still making their way through the courts.

Foster was a nurse employed by PrimeCare Medical of West Virginia Inc. at the Southern Regional Jail. She applied for workers’ compensation benefits after contracting Covid-19 and developing Long Covid. The state’s workers’ compensation board approved her claim, saying she’d satisfied a six-factor statutory test for compensation.

An appeals court vacated the decision, relying on a study showing that it wasn’t statistically more probable that she contracted the virus at work than from a community exposure. Under the statutory six-factor test, a claimant must show that her illness didn’t come from an ordinary disease that she would have been equally exposed to outside her workplace.

West Virginia’s top court reversed and sent the case back to the board with directions to reinstate the award. The statute didn’t require Foster to show that health-care workers were at a greater risk for getting Covid-19 in their workplaces than elsewhere, the court said.

Foster’s evidence indicated that she in fact contracted Covid-19 at the jail, citing numerous positive test results from inmates and fellow employees during the relevant time period, the court said. It “defies logic” to hold that Foster couldn’t satisfy her statutory burdens because the risk of workplace exposure wasn’t statistically higher that the risk of exposure in public, it said.

Statistical evidence of the incidence of workplace-related risk as compared to non-workplace related risk is “relevant, but not dispositive,” Chief Justice William R. Wooton said.

Justices Elizabeth D. Walker and Charles S. Trump IV joined the opinion.

Justices Tim Armstead and C. Haley Bunn dissented and reserved the right to file separate opinions.

Reginal D. Henry, Attorney at Law PLLC represents Foster. Offutt Simmons Simonton PLLC represents PrimeCare.

The case is Foster v. PrimeCare Med. of W. Va., Inc., W. Va., No. 23-726, 5/27/25.