Workers' Compensation
Summer 2021

Reopening of Delaware Courts in Response to Coronavirus

The past year has been filled with many challenges and uncertainty. Fortunately, the state of Delaware is beginning to reopen and enacting various procedures to do so in a safe manner for all. Below you will find an update on the status of courts in Delaware regarding their reopening procedures.

As of July 13, 2021, Governor John Carney lifted the COVID State of Emergency Order in Delaware, and as of the same day, the Delaware Supreme Court lifted the Judicial Emergency. Following the lifting of the emergency, the Supreme Court encouraged courts to continue using audiovisual devices to the extent such devices remained consistent with constitutional and statutory requirements along with court rules, procedures, and practices. As of August 16, 2021, face coverings are required at all Delaware state court facilities, and unvaccinated employees must undergo weekly COVID testing.

Industrial Accident Board:

The Board is resuming all hearings “in person” at both the Wilmington and Dover locations with safety protocols in place. Individuals should provide their own face covering, maintain three feet of social distancing, undergo temperature checks upon entry, and follow occupancy rates as determined by the board administration.

Superior Court of Delaware:

The Superior Court is resuming jury trials. Various safety measures, including social distancing practices and plexiglass shields throughout the court, will remain in place.

Court of Common Pleas:

The Court of Common Pleas is resuming non-jury trials in person. Many other proceedings are continuing to be held virtually. Social distancing practices continue to remain in effect.

Justice of the Peace Court:

The Justice of the Peace Court is resuming all in-person proceedings while adhering to social distancing guidelines, including lobby capacity. The court is encouraging virtual hearings to continue when necessary to assist in clearing backlogs and easing current caseloads.

Case Law Update:

Addressed below is the case of Fowler v. Perdue Inc., (Delaware Industrial Accident Board, 2020), which highlights the first workers’ compensation decision on coronavirus as an occupational disease.

In Fowler v. Perdue Inc., (Delaware Industrial Accident Board, 2020), Carl Fowler was employed at Perdue Inc. when he contracted COVID-19 and filed a Petition to Determine Compensation Due seeking acknowledgment that COVID-19 is a compensable industrial illness. To succeed on this claim, the claimant bears the burden of proving it is more likely than not he contracted COVID-19 at Perdue and that COVID-19 is an occupational disease.  The test for an occupational disease requires the claimant to have contracted the disease at work and their employment posed an increased risk for exposure.

Fowler worked at Perdue from January 2020 until he contracted COVID-19 in late March 2020. Claimant tested positive for COVID-19 on April 3, 2020, and was admitted to the hospital on April 4, 2020. Claimant alleges because he worked at Perdue and went to the cafeteria while on break, he could have been exposed to the virus at work. However, the claimant had a wide variety of social contacts in the weeks leading to his diagnosis. Claimant went to a doctor’s appointment, medical laboratory, Walmart, and Royal Farms. Along with these contacts, the claimant’s wife went grocery shopping, and the claimant’s daughter attended school, rode the bus, and participated in after-school activities. The family did not self-isolate until after the claimant’s diagnosis, and there was no clear indication of the use of masks or protective devices by the family while in public prior to the claimant’s diagnosis.

The board denied the petition.  The holding is highly fact-sensitive and denial attributed to the claimant and his family’s numerous contacts outside of the workplace in the weeks leading up to his diagnosis. The board notes the widespread nature of the virus and how the claimant could have contracted the virus in many ways and many places.  Because the claimant did not meet his burden of proof regarding exposure, the board does not discuss whether COVID-19 is an occupational disease within the meaning of the Delaware Workers’ Compensation Act.