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Workers' Compensation

Delaware: Board, Not Trial Court, Must Decide if COVID-19 is Occupational Disease

A Delaware Superior Court held that it was for the state’s Industrial Accident Board, not the trial court, to determine whether COVID-19 was an occupational disease and, therefore, whether the plaintiff’s action against an employer for alleged negligence in allowing her husband—an employee of the defendant—to contract the disease should be barred by the exclusive remedy provisions of the state Act. Plaintiff contended that the employer’s negligence, gross negligence, and/or recklessness resulted in her husband’s contracting COVID-19. He died from the disease. The court observed that the widow had filed a petition with the IAB in order to preserve her claims within the one-year statute of limitations. In light of that fact and the well-established Delaware statutory and case law vesting the IAB with jurisdiction to hear all cases arising under the Act, the court concluded that the jurisdictional issue should first be heard by the IAB.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Ingino-Cacchioli v. Infinity Consulting Sols, Inc., 2021 Del. Super. LEXIS 560 (Aug. 19, 2021)

See generally Larson’s Workers’ Compensation Law, § 100.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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