Kentucky Supreme Court upholds denial of COVID-19 death claim

The Kentucky Supreme Court on Thursday affirmed the denial of benefits for a worker who died from COVID-19, finding his job didn’t increase his risk of contracting the disease.

Kyle Perkins was working for North American Stainless as a mechanical maintenance shift technician during the COVID-19 pandemic. The company required workers to wear masks when they were within six feet of each other. The company also canceled events, offered on-site COVID-19 vaccinations and incentivized vaccination, according to Estate of Perkins v. North American Stainless.

Mr. Perkins regularly worked in close proximity to Bradley Eric Springer. In July 2021, a security guard reported seeing both men without masks. In August 2021, a photo of Mr. Springer unmasked and within six feet of Mr. Perkins was taken. That same month, both tested positive for COVID-19 within days of each other.

Mr. Perkins’ condition deteriorated. He underwent double lung transplant before developing an infection and dying in November 2021 at the age of 34.

Mr. Perkins’ estate filed a workers compensation claim, asserting his COVID-19 was an occupational disease. An administrative law judge found the claim was barred by Kentucky Revised Statutes Section 342.0011(1), which precludes coverage for communicable diseases unless employment increases risk of contracting the disease. The ALJ concluded the estate failed to show that Perkins’ work increased his risk of contracting COVID-19.

The Workers’ Compensation Board affirmed, as did the Court of Appeals.

The Kentucky Supreme Court said Mr. Perkins might have a compensable claim if his work required him to perform duties during the COVID-19 pandemic within six feet of unvaccinated and unmasked co-workers. However, justices said it was clear that NAS did not require Mr. Perkins to work within six feet of unvaccinated and unmasked co-workers.

“The choice to be unmasked or to even remain around an unmasked co-worker, in violation of the work safety protocols and without reporting them to a supervisor, was a personal one,” the court said.

The court found no substantial evidence that Mr. Perkins’ working conditions directly contributed to his contracting COVID-19. The court noted the ALJ found Mr. Perkins could have contracted the disease during his nonwork-related activities based on the timeline of his symptoms and a series of text messages regarding other family members’ illnesses, symptoms and test results.

“This is not a case of an occupational disease involving exposure over time or related to a class of workers, such as coal miners,” the court said. “Susceptibility did not increase as a result of the work being done.”

Justices said they understand the decision is “extremely unfortunate for the Perkins family,” but the estate failed to meet its burden of proving work-related causation.

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