Fowler v. Perdue, Inc.

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CARL FOWLER, §
§
§
Claimant Below, § No. 412, 2023
Appellant, §
§
§
v. § Court Below: Superior Court
§ of the State of Delaware
§
PERDUE, INC., §
§
§
Employer Below, § C.A. No. K23A-01-001
Appellee. §

Submitted: April 17, 2024
Decided: June 24, 2024

Before VALIHURA, TRAYNOR, and GRIFFITHS, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Walt F. Schmittinger, Esquire, Schmittinger and Rodriguez, P.A., Dover, Delaware, for
Appellant.

Andrea C. Panico, Esquire, Megan E. Murray, Esquire, Tybout, Redfearn & Pell,
Wilmington, Delaware, for Appellee.

VALIHURA, Justice:
I. INTRODUCTION

Claimant-Below Appellant Carl Fowler (“Fowler”) appeals from a Superior Court

decision affirming a post-hearing denial of compensation by the Industrial Accident Board

of the State of Delaware (“I.A.B.”). Following an earlier reversal and remand from the

Superior Court, the I.A.B. determined that Fowler had developed COVID-19 while

working at Perdue, Inc. (“Perdue”), and that Fowler had failed to present sufficient

evidence that COVID-19 was a compensable occupational disease. The Superior Court

affirmed that decision. For the following reasons, we AFFIRM the judgment of the

Superior Court.

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts1

Fowler worked at Perdue from January 2020 until late March 2020.2 Throughout

the month of March 2020, Fowler worked his usual night shifts at Perdue in the box area.

His shift was from 5:50 p.m. until sometime between 3:00 a.m. and 6:00 a.m. in the

morning. Most days, he received a thirty-minute meal break.3 The box room was L-shaped

1
Unless otherwise noted, the facts are derived from the two I.A.B. opinions, except for those facts
that were rejected by the Superior Court during its first review of the case. Fowler v. Perdue Inc.,
No. 1501167 (Del. I.A.B. Dec. 17, 2020) [hereinafter “I.A.B. I at _” in footnotes and “First I.A.B.
Decision” in text]; Fowler v. Perdue Inc., No. 1501167 (Del. I.A.B. Dec. 12, 2022) [hereinafter
“I.A.B. II at _” in footnotes and “Second I.A.B. Decision” in text]. The Superior Court reversed
the First I.A.B. Decision in Fowler v. Perdue Farms, Inc., 2022 WL 807327 (Del. Super. 2022)
[hereinafter “Fowler I”]. The Superior Court Decision affirming the Second I.A.B. Decision is
Fowler v. Perdue Farms, Inc., 2023 WL 6888918 (Del. Super. 2023) [hereinafter “Fowler II”].
2
I.A.B. I at 13. Fowler never returned to work.
3
Id. at 14. If Fowler worked sufficient overtime, he received another break.

2
and was about eighty feet long and fifty feet wide.4 Four or five employees worked on

Fowler’s shift, and they were spaced six to eight feet apart. There were more than 1,400

employees at the Milford Perdue plant, and 650 of those employees worked the nightshift.

Fowler typically packed his own lunch and took his lunch break in Perdue’s

lunchroom.5 He testified that there would be about 200 people in the lunchroom, sitting

close “[l]ike a sardine can[.]”6 Ronald Dukes, the Safety and Security Manager at Perdue,

testified that if the cafeteria were full, it held 150 to 170 people. Dukes did not agree that

employees were seated shoulder to shoulder. The chairs were movable, and the tables,

measuring three feet by eight feet, were placed end-to-end.

On March 12, 2020, the Governor of Delaware issued a State of Emergency, closed

the public schools, and required Delawareans to shelter in place. Perdue increased

housekeeping service protocols and increased the number of janitorial staff to clean high

touch surfaces every two hours.

On March 16, 2020, Fowler attended a routine check-up with his doctor, Dr.

Barrington Brown.7 Fowler reported feeling well, sleeping well, having good energy

levels, and he had no new complaints.8

4
Id. at 18. The room is a dry area and contains packaging materials, cardboard, and lids.
5
Id. at 14. Fowler testified that he always packed his lunch. His wife testified that he usually
packed his lunch, but occasionally purchased it. Id. at 17.
6
Fowler I, at *1 (quoting Carl Fowler I.A.B. Hearing Testimony on Nov. 17, 2020 at 79:1–2);
Fowler II, at *2.
7
I.A.B. II at 3. This was a relevant contact within the period in which Fowler could have been
exposed to and contracted COVID-19. Id. at 8. But it was a much lower risk in comparison to the
cafeteria at Perdue. Id.
8
I.A.B. I at 3. Fowler had a cardiac assist device implanted years before the events of this case.

3
On March 17 or 18, 2020, Perdue developed a “Call to Action” form and posted it

on its safety bulletin board. It listed instructions about handwashing, avoiding touching

one’s face, and keeping a safe distance from sick people. On March 18, the first employee

exhibiting COVID-19 symptoms was sent home. That employee was tested on March 26,

2020, and Perdue was notified on March 31 that the test was positive.

Fowler reported to Dr. Alfred E. Bacon, III, M.D., Perdue’s expert, that he was not

aware of anyone at Perdue who had COVID-19. March 24, 2020 is the earliest date that

Dukes was aware that employees tested for COVID-19. On March 24, Perdue removed

chairs and staggered tables in the cafeteria. Dukes testified that when the chairs were

removed in the cafeteria, people were separated by eight to ten feet. On March 25, Perdue

began daily cleaning and sanitizing with a fogging machine. March 28 is the earliest date

that a Perdue employee tested positive. Between March 28 and April 8, twenty-four Perdue

employees tested positive for COVID-19. Between March 18 and April 15, 124 employees

were taken out of work and all of them later tested positive for COVID-19. Fowler was

the only employee from the box room’s night shift to test positive.

On March 29, 2020, Fowler went to the Bayhealth Medical Center emergency room.

He reported a “dry cough, fever of 100.7 to 100.9, chest tightness, and restlessness for two

days associated with shortness of breath.”9 Fowler was tested in the emergency room for

COVID-19, but the test results were not immediately available. A note in the file indicated

that Fowler was at a “‘high risk for possible underlying COVID-19 infection given that he

9
Id. at 7.

4
is still working at Perdue factory over the last two weeks.’”10 Dr. Brown stated that the

emergency room was aware of an outbreak at Perdue. Bayhealth sent doctors to help with

testing after March 2020. Fowler was discharged and advised to isolate at home until the

test results came back.

By March 30, 2020, at least two employees tested positive for COVID-19. On

March 30, Perdue closed the plant for deep cleaning, and on April 1, Perdue began doing

temperature checks and employee screenings.

On April 3 or 4, 2020, Fowler’s COVID-19 test came back positive. On April 4,

Fowler was admitted to Bayhealth Hospital via ambulance as he was in respiratory distress.

He remained in the hospital until June 9, 2020. During his hospital stay, Fowler was

diagnosed with “acute hypoxic respiratory failure associated with COVID-19, multilobar

pneumonia bilaterally secondary to COVID-19, septic shock secondary to COVID-19, and

an acute kidney injury.”11 Fowler received oxygen, was intubated, and put on medications

that elevated his blood pressure to help perfusion. He was also put on a ventilator, and

later required dialysis for more than a month. He developed gastrointestinal bleeding and

required treatment with a gastroenterologist. Fowler’s medication was changed when he

developed atrial fibrillation.

Around the time Fowler was hospitalized, his wife, Felicia Fowler, had symptoms

of COVID-19, but she was never tested. She stated that her symptoms started about one

10
Id.; I.A.B. II at 2.
11
I.A.B. I at 3.

5
week after Fowler was admitted to the hospital. She reported that their nine-year-old

daughter had no COVID-19 symptoms. On April 20, 2020, Fowler reported to Dr. Brown

that he thought he contracted COVID-19 at work, but the conversation was brief. Dr.

Brown did not ask any follow up questions concerning how Fowler may have been infected

with the disease. Rather, their conversation was focused on the medical issues and

treatment.

After his release from the hospital on June 9, 2020, Fowler went to a rehabilitation

facility. He was weak and had difficulty taking a step and following his physical therapist’s

commands. He had a catheter because he had difficulty urinating. On July 15, 2020, he

was released from the rehabilitation facility. Dr. Brown continued to treat him after his

release. He observed that Fowler was depressed. Fowler had to follow up with the

psychiatrist, a nephrologist, and required home visits from a physical therapist and visiting

nurse. Based on an August 10, 2020 visit prior to the November 17, 2020 hearing, Dr.

Brown testified that Fowler had lost weight. Fowler reported not feeling well. He had

decreased energy, a cough, and shortness of breath. As a result, he continued to seek

treatment from the urologist, cardiologist, and psychiatrist.

B. Medical Opinions

Dr. Brown testified by deposition at the November 17, 2020 I.A.B. hearing (the

“First I.A.B. Hearing”). He opined that Fowler was substantially debilitated as a result of

COVID-19 and was unable to return to work. He further opined that the most likely

exposure and explanation was that Fowler contracted COVID-19 at work. He stated that

6
“there is no doubt that in this environment he acquired COVID-19 disease.”12 The I.A.B.

noted that there was information about which Dr. Brown was unaware, mostly regarding

potential alternative contacts with COVID-19 and details about Fowler’s work

environment. It found that “Dr. Brown agreed that he is unable to say to a reasonable

degree of medical probability that [Fowler] contracted COVID-19 at work without an in-

depth conversation and without obtaining information [sic] where it is likely he came into

contact with the disease.”13

Dr. Bacon, a board-certified internist specializing in infectious diseases, examined

Fowler on September 29, 2020 and reviewed Fowler’s medical records in conjunction with

the examination.14 Ms. Fowler provided most of the information during that visit as Fowler

was barely functioning. Fowler looked exhausted, used a walker, sat in a chair, and could

not lift himself onto the examination table. Dr. Bacon stated that the illness onset was in

the March 27-29, 2020 timeframe, and Fowler’s March 29 emergency visit suggested the

possibility of a COVID-19 diagnosis at that point. Although Fowler had significant co-

morbidity issues, it was COVID-19 that led to the severe respiratory distress which

required intubation and a long ICU stay. Fowler also had “acute renal failure likely due to

multisystem dysfunction and he developed secondary pneumonia and a GI bleed.” 15

According to Dr. Bacon, Fowler was “as sick as will be seen with COVID-19 and still

12
Id. at 5–6.
13
Id. at 6.
14
Id. at 7–8; I.A.B. II at 3.
15
I.A.B. I at 9. See also I.A.B. II at 4.

7
survive.”16 He stated further that patients that sick can develop a PTSD, post-ICU

psychosis/psychiatric dysfunction. Dr. Bacon could not say if having COVID-19 worsened

Fowler’s pre-existing cardiac or diabetic issues. He opined that Fowler could not function

in a work environment because he could barely function in a home environment.

Dr. Bacon concluded that Fowler acquired COVID-19 at work, and most likely in a

group environment like the cafeteria. His conclusion was largely based upon information

provided by Ms. Fowler. Dr. Bacon explained that the highest risk of catching COVID-19

is by “droplet spread,” whereas “airborne spread” is “‘very low risk,’” and “surface areas”

are “‘minimal risk.’”17 The cafeteria was a high-risk environment because “people are in

close contact; speaking, chewing, eating, and spewing droplets throughout the air; no

masks are worn while people are eating; and there is a minimum of a ten-percent risk in

that environment.”18 That percentage is the same for other restaurants and social

gatherings, but that percentage, in turn, depends on how many people in that room are

positive for COVID-19.19 Dr. Bacon noted that people can be asymptomatic, and can be

contagious for a period of time before developing symptoms. That period is “likely no

more than seven to ten days[.]”20 Fowler’s chance of contracting COVID-19 at the Perdue

cafeteria, according to Dr. Bacon, was no different from him contracting it at any other

16
I.A.B. I at 9.
17
Fowler I, at *2 (quoting Transcript of Nov. 16, 2020 Deposition of Dr. Alfred E. Bacon, III,
M.D. [hereinafter “Dr. Bacon Dep. I at _”] at 21:2–14).
18
I.A.B. I at 10–11. See also I.A.B. II at 5, 6.
19
I.A.B. I at 12. See also I.A.B. II at 5, 7.
20
I.A.B. I at 10.

8
business where people gather to eat and drink, whether in a workplace or elsewhere.21

Dr. Bacon had a second opportunity to examine Fowler on July 27, 2022, prior to

the December 2, 2022 hearing following the Superior Court’s reversal and remand (the

“Second I.A.B. Hearing”). Fowler still “had significant urinary retention, ongoing cardiac

dysfunction, edema, swelling, and brain fog that is seen in the post-COVID-19 arena.”22

Dr. Bacon did “not see [Fowler’s] condition improving to a pre-COVID-19 state.”23 Dr.

Bacon adhered to his prior “opinion to a reasonable degree of medical probability that

[Fowler] acquired COVID-19 within the work environment.”24 His opinion was reinforced

by the knowledge that there were about 200 people in the lunchroom at lunch time. Even

considering Fowler’s visit to Dr. Brown’s office, the highest risk was “while eating,

chewing and spewing virus throughout the area, such as in the cafeteria at Perdue.”25

In Dr. Bacon’s opinion, Fowler probably contracted COVID-19 around March 20-

22, 2020, prior to Perdue’s lunchroom changes. Dr. Bacon also opined that “[e]ssential

workers, because they were in the work environment, were at higher risk than the general

population, but it is no different than another work environment. All essential workers

were more exposed to COVID-19 than those who did not work.”26 However, there was

21
Id. at 12–13; I.A.B. II at 6–7, 7 (“There is nothing unique about the cafeteria at Perdue that
makes it more or less likely to contract COVID-19 than eating at a restaurant or other cafeteria.”).
22
I.A.B. II at 8.
23
Id.
24
Id. at 9.
25
Id.
26
Id. at 9–10. See also Fowler II, at *4.

9
nothing about Fowler’s work itself or his specific occupation that predisposed him to

COVID-19. According to Dr. Bacon, “COVID-19 is not a chicken disease, as brucellosis

is a meat packing disease.”27 Rather, it “is really a work environment issue.”28

Dr. Bacon reviewed two congressional reports, which were also submitted to the

I.A.B.29 The reports concerned COVID-19 in meatpacking facilities and indicated that “the

incidence of COVID-19 in the meatpacking facilities was substantially under-reported and

there was a very high prevalence of COVID-19 in the facilities in the meatpacking

industry.”30 Perdue was not analyzed or identified as a source of data obtained in

connection with those reports.

C. Procedural History

In its December 17, 2020 decision, the I.A.B. (the “First I.A.B. Decision”) found

that Fowler had not met his burden to show that he contracted COVID-19 at Perdue.31 The

I.A.B. concluded that there were other contacts and places that could have led to him

contracting COVID-19. Because the I.A.B. determined that Fowler had not met his burden,

27
I.A.B. II at 10.
28
Id.
29
Id. at 11. See also App. to Opening Br. at A364–86 (Staff of Select Subcomm. on the
Coronavirus, 117th Cong., Coronavirus Infections and Deaths Among Meatpacking Workers at
Top Five Companies Were Nearly Three Times Higher than Previous Estimates (Mem. Oct. 27,
2021)); Id. at A387–447 (Staff of Select Subcomm. on the Coronavirus, 117th Cong., “Now to Get
Rid of Those Pesky Health Departments!”: How the Trump Administration Helped the
Meatpacking Industry Block Pandemic Worker Protections (Rep. May 12, 2022)). Fowler also
included a Presidential Order which classified the meat production industry as essential. Id. at
A362–63 (Exec. Order No. 13917, 85 Fed. Reg. 85, 26313–262314 (April 28, 2020) (invoking the
Defense Production Act)).
30
I.A.B. II at 11.
31
I.A.B. I at 20.

10
the I.A.B. did not consider whether COVID-19 was an occupational disease.32

Fowler appealed the First I.A.B. Decision to the Superior Court. The Superior Court

reversed and remanded after it determined that the I.A.B. had committed legal error and

failed to base its decision upon substantial evidence in the record. 33 The Superior Court

determined that “in some instances the Board made statements, which could be considered

either findings or conclusions, that ignored the unrebutted medical testimony, and

substituted it with findings that were not rationally supported by substantial evidence in

the record.”34 The court also held that the I.A.B. had imposed an incorrect burden of proof

on Fowler.35 Because Dr. Bacon was unaware of certain contacts which could have

affected his opinion regarding causation, the Superior Court remanded the case to the

I.A.B. for additional testimony from Dr. Bacon to address additional contacts Fowler had

prior to contracting COVID-19. The I.A.B. was also instructed to apply the correct burden

of proof, namely, the preponderance of evidence standard.

Following remand, Dr. Bacon testified again by deposition and Dukes testified live.

Portions of the depositions from November 17, 2020 from Dr. Bacon and Dr. Brown were

32
Id. at 24–25 (“Since [Fowler] did not meet his burden of proof regarding his exposure, the Board
does not need to discuss whether or not COVID-19 is an occupational disease within the meaning
of the Delaware Workers’ Compensation Act.”).
33
Fowler I, at *4–7.
34
Fowler I, at *5.
35
Id. at *7 (holding that Fowler “was required to show that it was more likely than not that he
contracted COVID-19 from his workplace as compared to his outside activities that are supported
by the record.”). The I.A.B. erred when it stated that “no one can say for sure[,]” because Fowler
was only required to prove that it was more likely than not that he contracted COVID-19 at Perdue.
Id. (quoting I.A.B. I at 24).

11
highlighted during the Second I.A.B. Hearing.

Following the Second I.A.B. Hearing, the I.A.B. determined “that [Fowler] met his

burden of proving that it was more likely than not that he contracted COVID-19 in the

cafeteria at Perdue, but he did not meet his burden of proving that COVID-19 is a

compensable occupational disease under the circumstances of this case (the “Second I.A.B.

Decision).”36 The Board accepted Dr. Bacon’s testimony on both issues. The I.A.B.

acknowledged that although it is possible for COVID-19 to be an occupational disease in

theory, that determination depends on the circumstances of each case.37

In its analysis, the I.A.B. applied the definitions of occupational disease set forth in

two decisions from this Court, namely, Air Mod Corp. v. Newton (“Air Mod”)38 and

Anderson v. General Motors.39 It held that Fowler had failed to show that COVID-19 was

a compensable occupational disease. At this point, we pause to explain the tests our Court

established for determining whether a disease qualifies as a compensable occupational

disease.

In Air Mod, this Court undertook to define what is a compensable occupational

disease. We observed that we had “recently taken the position that the Delaware

Workmen’s Compensation Act may not be construed so as to be transformed into a health

36
I.A.B. II at 14.
37
Id. at 15 (citing Cacchioli v. Infinity Consulting Solutions, No. 1501061 (Del. I.A.B. Mar. 9,
2022)).
38
Id. at 15–16 (quoting Air Mod Corp. v. Newton, 215 A.2d 434, 441–42 (Del. 1965)).
39
Id. at 16 (quoting Anderson v. General Motors, 442 A.2d 1359, 1360 (Del. 1982)).

12
insurance statute.”40 Because we found the definition of “compensable occupational

disease” contained in our statute to be unhelpful, we examined case law from other

jurisdictions, including New York.41 After considering language employed by New York

Court of Appeals and expressing accord with New York Court of Appeals’ rationale and

definition of an occupational disease,42 we defined a compensable occupational disease

under our statute as follows:

[A] compensable occupational disease, within the meaning of our Act, is one
resulting from the peculiar nature of the employment, i. e., from working
conditions which produce the disease as a natural incident of the particular
occupation, attaching to that occupation a hazard different from, and in
excess of, the hazards attending employment in general.43

Seventeen years later, in Anderson, we applied this standard and rejected an

automotive plant employee’s claim that his allergic rhinitis was an occupational disease.

We described the test as follows in Anderson:

For an ailment to be found to be a compensable occupational disease,
evidence is required that the employer’s working conditions produced the
40
Air Mod Corp., 215 A.2d at 442 (citation omitted).
41
Id. (observing that “[t]he problem of the proper judicial definition of the undefined term
‘compensable occupational disease’ was met in New York in Detenbeck v. General Motors
Corporation, 309 N.Y. 558, 132 N.E.2d 840 (1956).”). See also 19 Del. C. § 2301(4).
42
Our Court in Air Mod quoted language from Detenbeck v. General Motors Corporation, stating
that “the test of what is an occupational disease is the same whether the employer the employee is
decrepit or in normal health. There must be a recognizable link between the disease and some
distinctive feature of the claimant's job.” Air Mod Corp., 215 A.2d at 442 (emphasis added)
(quoting Detenbeck v. General Motors Corporation, 132 N.E.2d 840, 842 (1956)). Also in Air
Mod, we considered language from another New York Court of Appeals decision, namely,
Harman v. Republic Aviation Corp., 82 N.E.2d 785 (N.Y. 1948). There, the New York Court of
Appeals stated that “[a]n ailment does not become an occupational disease simply because it is
contracted on the employer's premises. It must be one which is commonly regarded as natural to,
inhering in, an incident and concomitant of, the work in question.” Air Mod Corp., 215 A.2d at
442 (emphasis added) (quoting Harman, 82 N.E.2d at 786).
43
Air Mod Corp., 215 A.2d at 442.

13
ailment as a natural incident of the employee’s occupation in such a manner
as to attach to that occupation a hazard distinct from and greater than the
hazard attending employment in general.44

Although in Air Mod we used the phrase, “a hazard different from, and in excess of,” as

opposed to “a hazard distinct from and greater than,” the test remained substantively the

same.

In Anderson, we held that an employee of General Motors failed to establish by

substantial competent evidence that his ailment — allergic rhinitis — resulted from the

peculiar nature of his employment at the automobile assembly facility rather than from his

own peculiar predisposition.45 We observed that “simply because there was evidence to

believe [allergic rhinitis] had either been contracted or aggravated on his employer’s

premises is legally insufficient to find it to have been an occupational disease.” 46 After

examining the record evidence, we stated that “neither the employee’s testimony nor that

of his treating physician was sufficient to establish that the working conditions at the

General Motors plant produced his ailment, allergic rhinitis, as a natural incident of his

occupation.”47 Rather, the employee’s breathing allergy was attributable not only to dust

(household as well as factory) but also to nature’s pollens. We said that the “employee’s

allergy-induced breathing difficulty resulted from the ‘stimuli (of) the everyday world.’”48

44
Anderson, 442 A.2d at 1361 (emphasis added).
45
Id. Our Court described “allergic rhinitis” as an “inflammation of the nasal mucous membrane
caused by allergies.” Id. at 1359.
46
Id. at 1360 (citing Air Mod Corp., 215 A.2d at 442).
47
Id. at 1361.
48
Id.

14
Accordingly, we affirmed the I.A.B.’s denial of his claim and its determination that allergic

rhinitis was not an occupational disease based upon “the absence of any persuasive causal

evidence that employment at the General Motors assembly plant had a tendency to induce

allergic rhinitis[.]”49

Fowler claims that the I.A.B. misapplied the standard we established in Air Mod and

Anderson by using certain words that strayed from the language in our tests and, in effect,

made the test more difficult to satisfy. He points primarily to the I.A.B.’s statement that

there is nothing “unique about poultry processing plants or [Fowler]’s job” in particular

that would increase his chances of contracting COVID-19. He focuses, in particular, on

several parts of the Second I.A.B. Decision including the following:

The Board also accepts Dr. Bacon’s testimony that he is unaware of there
being anything unique about poultry processing plants or [Fowler]’s job in
the box area that would increase the chances of him contracting COVID-19.50

....

There is nothing unique about the poultry industry or [Fowler]’s job that
would put him in closer contact with COVID-19 itself than anywhere else
where people gather, eat, drink and work. There is nothing unique about the
Perdue cafeteria that makes it more or less likely to contract COVID-19 than
eating at a restaurant or another cafeteria.51

....

The distinct hazard [Fowler] had at Perdue was the lunchroom environment,
not his actual work environment. The same hazard is specific to any event
or circumstance where there is a large number of people in the same room
together. The Board accepts Dr. Bacon’s opinion that there was not a greater

49
Id.
50
I.A.B. II at 17 (emphasis added).
51
Id. at 18.

15
hazard of working at Perdue and eating in the lunchroom for [Fowler] to
contract COVID-19 than contracting it in the employment environment in
general.52

He argues that our language in Anderson does not require that exposure be “exclusively”

or “uniquely” in the workplace.

In its October 18, 2023 decision affirming the Second I.A.B. Decision, the Superior

Court recognized that the Anderson standard requires “that the hazard of contracting the

disease as an incident of the claimant’s employment must be both (1) ‘distinct from’ and

(2) ‘greater than’ that attending employment in general. Fowler’s assertions fall short

because he focuses upon the second prong to the exclusion of the first.”53 Although the

I.A.B. had used the term “unique,” when discussing the Anderson and Air Mod tests, the

Superior Court held that considering the full context of the I.A.B.’s statements, the I.A.B.

did not commit reversible error:

To the extent that the use of the term “unique” implies that in order for an
illness to be compensable as an occupational disease, it must be associated
with only one occupation, the Court agrees that this would not be a correct
statement of the law. However, the Board here never made such a claim;
instead, its analysis demonstrates the opposite. It certainly would have been
preferable for the Board to have employed the terminology used by the
Supreme Court. This Court is unwilling to find, however, given the context
and the Board’s full analysis, that the use of that term constitutes reversible
legal error.54

The Superior Court observed that the I.A.B. had accepted Dr. Bacon’s testimony

52
Id. at 19.
53
Fowler II, at *6.
54
Id. at *7.

16
that the cafeteria at Perdue was a “particularly hazardous environment,”55 and it agreed that

the record supported that assessment, but it held that Fowler had failed to prove that the

hazard was “distinct” from attending employment in general.56

In focusing on the “distinct hazard” portion of the test, the Superior Court held that

COVID-19 was not a natural incident of Fowler’s peculiar occupation as a boxer in the

poultry industry.57 The court distinguished several cases where our courts had found a

disease to be an “occupational disease” and explained that “there was no evidence

presented that COVID-19 was distinctive to the environment of a poultry processing

plant.”58

The Superior Court rejected Fowler’s argument that “by mere virtue of meat

processing workers’ having contracted COVID-19 at a higher rate because they were

essential workers—COVID-19 is an occupational disease.”59 It concluded that “COVID-

19 cannot be a hazard distinct from that of employment in general in a situation in which

all other essential workers faced the same disease every day by attending employment.”60

The Superior Court considered the Congressional reports and found that there was:

55
Id. at *8.
56
Id.
57
Id. at *9.
58
Id. at *10. The Superior Court, for example, found that Evans was distinguishable because there
was no evidence that COVID-19 was distinctive to the environment of a poultry processing plant
like mycobacterium avium intracellulare (“MAI”) related illnesses would be. Id. (citing Evans
Builders, Inc. v. Ebersole, 2012 WL 5392148, at *1, *2–3 (Del. Super. Oct. 11, 2012), aff'd sub
nom. Evans Builders v. Ebersole, 2013 WL 2371705 (Del. Feb. 11, 2013)).
59
Id. at *11 (citation omitted).
60
Id.

17
[N]o finding by the Subcommittee that COVID-19 was more prevalent in
meatpacking facilities due to the occupations of the individual workers.
Rather, the subcommittee cited inadequate masking and barriers as leading
to the high infection rates: not only were such measures not peculiar to
poultry or other meatpacking plants, but there is no indication in the record
of the extent to which these measures had even been recommended by late
March 2020, when Fowler was infected.61

In sum, the Superior Court held that the I.A.B. committed no reversible legal error in

determining that COVID-19 was not an occupational disease, and that the I.A.B.’s decision

was supported by substantial record evidence.62

Fowler now claims on appeal that both the I.A.B. and the Superior Court misapplied

the applicable standard in determining that COVID-19 was not an occupational disease.

He argues that the Superior Court, like the I.A.B., conflated the “distinct hazard” language

of Anderson with a requirement of uniqueness of the hazard to Perdue. By doing so, he

claims that the Superior Court erred in setting the bar too high, i.e., that “distinct” does not

mean “unique.” He also claims that the Superior Court erred by limiting its analysis of

what is a “distinct hazard” to the box room, as opposed to the entire premises including the

cafeteria. We disagree with his contentions for the reasons explained below.

61
Id. at *11 (citing Staff of Select Subcomm. on the Coronavirus, 117th Cong., Coronavirus
Infections and Deaths Among Meatpacking Workers at Top Five Companies Were Nearly Three
Times Higher than Previous Estimates (Mem. Oct. 27, 2021)).
62
Id. at *12.

18
III. ANALYSIS

A. The Superior Court and I.A.B. Did Not Err in Determining that Fowler Failed to
Show by Substantial Evidence That COVID-19 Was An Occupational Disease

1. Standard of Review

When this Court reviews an I.A.B. decision, the Court is “[‘]limited to an

examination of the record for errors of law and a determination of whether substantial

evidence exists to support the Board’s findings of fact and conclusions of law.’”63 We

have defined “substantial evidence” as “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’”64 “If the Board decided legal issues,

this Court reviews them de novo. If there is no error of law and substantial evidence

supports the Board’s findings, ‘the Board’s decision must be affirmed.’”65

2. Although Fowler Established a Hazard “Greater Than” Attending
Employment in General, He Failed to Establish Hazard “Distinct From”
the Hazard Attending Employment in General

The question before this Court is whether the Superior Court erred in affirming the

I.A.B.’s determination that Fowler failed to prove that COVID-19 was an occupational

disease under these circumstances. The Superior Court correctly understood that the

Anderson test required Fowler to “establish by substantial competent evidence” that his

63
Zayas v. State, 273 A.3d 776, 784–85 (Del. 2022) (citing Roos Foods v. Guardado, 152 A.3d
114, 118 (Del. 2016)).
64
Id. at 785 (citing Roos Foods, 152 A.3d at 118).
65
Id. (quoting Stevens v. State, 802 A.2d 939, 944 (Del. Super. 2002)) (citing Oceanport Indus.,
Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (internal quotation marks omitted in
original)).

19
COVID-19 infection “resulted from the peculiar nature of” Fowler’s employment. 66 The

Superior Court also correctly understood that in order to prove that peculiar nature under

Air Mod and Anderson, Fowler had to show that Perdue’s working conditions produced the

ailment (here, COVID-19) as a natural incident of his occupation in such a manner as to

attach to it “a hazard distinct from and greater than the hazard attending employment in

general.”67 Satisfaction of both aspects, namely, “a hazard distinct from” and a hazard

“greater than” is required. Satisfying only one part of this test is insufficient.

The Superior Court correctly held that Fowler presented evidence sufficient to show

that the cafeteria at Perdue presented a hazard greater than that attending employment in

general. This aspect of the ruling is supported by substantial evidence. Dr. Bacon testified

about the high-risk environment in the cafeteria resulting from the number of people, the

time period, and droplets that spewed from eating and chewing.68 He also testified that

“[‘]essential workers, because they were in the work environment, were at a higher risk

than the general population.’”69 The I.A.B. and the Superior Court characterized his

testimony as unrebutted. Therefore, Fowler established a hazard at Perdue that was

“greater than” that attending employment in general.

However, the Superior Court also correctly held that Fowler lacked evidence

66
Anderson, 442 A.2d at 1361.
67
Id.
68
Fowler II, at *8.
69
Id. (citation omitted). See also I.A.B. II at 9; App. to Opening Br. at A315 (Transcript of Nov.
29, 2022 Deposition of Dr. Alfred E. Bacon, III, M.D. [hereinafter “Dr. Bacon Dep. II at _”] at
28:12–15).

20
sufficient to show that the cafeteria at Perdue was a hazard “distinct from” that attending

employment in general. The Superior Court considered and relied upon Dr. Bacon’s

unrebutted testimony on this point as well.70 Dr. Bacon testified that contracting COVID-

19 in the lunchroom of Perdue was no different than contracting it at Home Depot or

Lowe’s, or a non-work environment such as a wedding, funeral, college cafeteria,

restaurant, or bar. Although the record contains information about the number of people

in the Perdue cafeteria, the record lacks evidence sufficient to show how that situation at

Perdue presented a “hazard distinct” from that involving other essential employees eating

in cafeterias during the early period of the pandemic.

The Superior Court relied upon an Ohio Court of Appeals opinion, Yeager v.

Arconic Inc.,71 which held that COVID-19 was not an occupational disease because

common illnesses to which the general public is exposed are not compensable occupational

diseases.72 We would be troubled had the Superior Court’s analysis stopped there because

under the Anderson and Air Mod standards, a common place illness, such as allergic

rhinitis, pneumonia, or COVID-19 could, under the right circumstances, be a “hazard

distinct” from that attending employment in general.73 Even Perdue does not disagree that

70
Fowler II, at *12.
71
Yeager v. Arconic Inc., 2022 WL 2114656, at *2, *3 (Ohio Ct. App. June 13, 2022), appeal not
allowed sub nom. Yeager v. Arconic Inc., 195 N.E.3d 1046 (Ohio Oct. 11, 2022) (TABLE).
72
Fowler II, at *9 (citing Yeager, 2022 WL 2114656, at *2 (quoting Ingram v. Conrad, 2001 WL
1674105, at *12 (Ohio Ct. App. Dec. 20, 2001), appeal not allowed sub nom. Ingram v.
Conrad, 766 N.E.2d 1002 (Ohio May 1, 2002) (TABLE))).
73
For example, we stated in Anderson that “if there had been evidence of any incidence of allergic
rhinitis within the employee’s work force at the General Motors plant or other evidence of a causal
connection, the case would be different.” 442 A.2d at 1361. But we made clear that the only
reasonable conclusion that could be drawn from the available evidence was that the claimant’s
21
COVID-19 could qualify as an occupational disease “under the proper facts.”74

The flaw in Fowler’s case is that COVID-19 was not “a natural incident” of, or an

inherent and concomitant aspect of his job as an employee at Perdue.75 In cases where

courts have found that a disease qualifies as an occupational disease, claimants have

established that they contracted the illness due to the peculiar nature of the job. In Diamond

Fuel Oil, for example, the employee’s job, which involved servicing and installing oil

burner equipment, required exposure to fuel oil #2 more frequently and in a larger amount

than individuals would be exposed otherwise.76 This Court affirmed the Superior Court’s

reversal of the I.A.B. finding that the employee’s chronic interstitial nephritis, a kidney

disease, was not caused by his employment at the fuel company. The employee identified

heating fuel oil #2, a petroleum hydrocarbon with known health hazards, as a substance to

which he was exposed for over nine years. We held that he had “produced evidence that

his employer’s working conditions through exposure to heating fuel oil #2 produced his

kidney disease as a natural incident of his employment in such a manner as to attach to his

occupation a hazard distinct from and greater than the hazard attending employment in

general.”77

disease resulted from “[‘]the peculiar nature of the employee rather than from the peculiar nature
of employment.’” Id. (citation omitted).
74
Answering Br. at 5.
75
Air Mod Corp., 215 A.2d at 442.
76
Diamond Fuel Oil v. O’Neal, 734 A.2d 1060, 1061–65 (Del. 1999). Exposure to Fuel #2,
according to the company’s own Material Safety Data Sheet, can lead to “[d]egenerative changes
in the liver, kidneys and bone marrow may occur with prolonged, high concentrations.” Id. at 1061.
77
Id. at 1066.

22
In Evans Builders Inc., a Superior Court decision summarily affirmed by this Court,

the employee’s work as a carpenter at a poultry house exposed him to mycobacterium

avium intracellulare (“MAI”) at a higher quantity and frequency than that which was latent

in other potential sources of exposure and as compared to employment outside the poultry

industry.78 The employee adduced expert evidence that his intense exposure to the MAI

organism in the poultry environment was very likely the cause of his pneumonia, which

led to part of his lung being removed. The I.A.B. ruled that his pneumonia and subsequent

disability was a natural incident of his employment at the poultry house.

In contrast, in Burns v. Wilson,79 the Superior Court rejected a legal malpractice

claim on the basis that the plaintiff’s allegations relating to the underlying worker’s

compensation claim were inadequate. The Superior Court considered the plaintiff’s

allegations that the attorney was negligent in not presenting certain evidence including

evidence of a causal link between the mold and mildew and his disease (sarcoidosis of the

lungs, heart, and brain). The court concluded that any such error was harmless “because

mold and mildew cannot be the cause of an occupational disease under the

circumstances.”80 It explained that:

78
Evans Builders, Inc., 2012 WL 5392148, at *1–3. The Superior Court held that the employee’s
MAI induced pneumonia was related to his work as a carpenter in the poultry industry. The I.A.B.
accepted an expert’s opinion that the MAI organism was more prevalent in the poultry industry
than in other environments. The Superior Court also held that the I.A.B. properly made the
required findings and considered the Anderson factors, even though the I.A.B. had used different
language than that used in Anderson. Id. at *3 (noting that “[p]erhaps in less than artful fashion,
the Board made the Anderson analysis,” and that “[t]he Board considered the Anderson factors and
made the required findings, despite being roundabout.”).
79
2015 WL 413452 (Del. Super. Jan. 30, 2015).
80
Id. at *7

23
[E]xposure to mold from working in a tire store does not qualify as an
occupational disease. This is because mold from a leaky building is not a
hazard “which is commonly regarded as natural to [or] inhering in” working
in a tire store.

Because mold and mildew are not hazards caused by the specific nature of
working in a tire store, but are hazards that might just as readily be
encountered in other occupations or in everyday life apart from employment,
the Court finds that any alleged failure by Wilson to present evidence related
to mold/mildew is harmless error and not a proximate cause of Plaintiff’s
failure to prevail on his IAB claim.81

Fowler argues that COVID-19 was a natural incident to working at Perdue in a

pandemic because the Perdue lunchroom was a high-risk location for COVID-19.

However, just as the Superior Court held in Burns that “mold from a leaky building is not

a hazard ‘which is commonly regarded as natural to [or] inhering in’ working in a tire

store[,]”82 contracting COVID-19 in Perdue’s cafeteria was not “natural to” Fowler’s work

at the poultry factory. A claimant cannot succeed merely by establishing that he contracted

COVID-19 at his employment. Being an essential worker in Perdue’s plant (including its

crowded cafeteria) during the pandemic is not enough to establish this link. Fowler failed

to show how COVID-19 is natural to a poultry factory in the same way MAI related

illnesses are natural to a poultry factory.

Fowler’s congressional reports showing the prevalence of COVID-19 in meat

factories did not close the evidentiary gap as they did not establish that COVID-19 is

natural incident to his employment.83 As noted above, Perdue was not analyzed or

81
Id.
82
Id. (quoting Air Mod. Corp., 215 A.2d at 442).
83
I.A.B. II at 11. See App. to Opening Br. at A364–86 (Staff of Select Subcomm. on the
24
identified as a source of data for those reports. Although the congressional reports did

suggest that the meat industry underreported COVID-19 cases, that still did not establish

that there was something specific about working in the meat industry that led to contracting

COVID-19. At best, it is consistent with Dr. Bacon’s testimony that crowded places where

people gathered side by side, breathing the droplets from the area, constituted a higher risk

environment, but not a hazard distinct from other types of employment generally.84

Fowler also challenges the Superior Court’s decision on the grounds that the

Superior Court “appears to limit the analysis to [Fowler]’s job in the box room[.]”85 We

agree with Fowler that compensable injuries are injuries that occur at “a time and place

where it would be reasonable for an employee to be under the circumstances[,]”86 and that

“incidental acts” such as “‘eating, drinking, smoking, seeking toilet facilities, and seeking

fresh air, coolness or warmth,’” are within the course of employment.87 But we reject

Coronavirus, 117th Cong., Coronavirus Infections and Deaths Among Meatpacking Workers at
Top Five Companies Were Nearly Three Times Higher than Previous Estimates (Mem. Oct. 27,
2021)); Id. at A387–447 (Staff of Select Subcomm. on the Coronavirus, 117th Cong., “Now to Get
Rid of Those Pesky Health Departments!”: How the Trump Administration Helped the
Meatpacking Industry Block Pandemic Worker Protections (Rep. May 12, 2022)); Id. at A362–63
(Exec. Order No. 13917, 85 Fed. Reg. 85, 26313–262314 (April 28, 2020) (invoking the Defense
Production Act)).
84
I.A.B. I at 11, 12. See also I.A.B. II at 5, 6.
85
Opening Br. at 37. See also Reply Br. at 4.
86
Rose v. Cadillac Fairview Shopping Ctr. Props. (Delaware) Inc., 668 A.2d 782, 786 (Del. Super.
1995), aff'd sub nom. Rose v. Sears, Roebuck & Co., 676 A.2d 906 (Del. 1996). See also Tickles
v. PNC Bank, 703 A.2d 633, 637 (Del. 1997) (observing that “the employee does not have to be
injured during a job-related activity to be eligible for worker’s compensation benefits,” and that
“incidental acts, including eating, drinking, smoking, seeking toilet facilities and seeking fresh air,
coolness or warmth” can be considered to be “in the course of employment.” (citations omitted)).
87
Tickles, 703 A.2d at 637. See also Reply Br. at 5.

25
Fowler’s claim of error because both the I.A.B.88 and the Superior Court89 considered

evidence concerning both the box room and the cafeteria. The decision by the I.A.B. is

supported by substantial evidence showing that regardless of where on Perdue’s premises

Fowler contracted COVID-19, Fowler failed to establish the necessary relationship

between his work environment at Perdue, and COVID-19 as “natural incident to” that

employment.

The Superior Court did not err in affirming the decision of the I.A.B. because

88
The I.A.B. found:
The problem with [Fowler]’s job was the same for every employee at Perdue, which
was that they ate lunch in the cafeteria, sitting close to each other without any
precautions or distancing during a hazardous activity of eating and speaking, which
leads to spewing droplets in close proximity to one another for up to 30 minutes at
a time. According to Dr. Bacon’s unrebutted testimony, eating in a cafeteria at
Perdue is no different than eating at any other employment site; any employer with
essential workers at work will have an environment that has risks.”
I.A.B. II at 18–19. See also e.g., id. at 5 (“[H]e did not get it in the room where he worked; it is
more likely [than that [Fowler] acquired it in the cafeteria environment or walking in the door of
the building with ten other people surrounding him without wearing masks.”); id. (“Dr. Bacon had
no doubt that [Fowler] acquired COVID-19 in the cafeteria at Perdue.”); id. at 6–7 (“[Fowler]’s
chance of contracting COVID-19 at the cafeteria at Perdue is no different than him contracting it
at any other business or anywhere else where people eat and drink, whether it is a workplace or in
the world itself[.]”).
89
See e.g., Fowler II, at *9 (“The singular fact that Fowler contracted COVID-19 in the cafeteria
on Perdue's premises is not legally sufficient to classify it as an occupational disease. People from
all over Delaware have contracted COVID-19, including people not working as boxers at Perdue.”
(citing Anderson, 442 A.2d at 1360)); id. (“As to work environments, Dr. Bacon testified that
contracting COVID-19 in the cafeteria at Perdue was “no different” than contracting it at any other
business, such as at Home Depot or Lowe's.” (citing Dr. Bacon Dep. I at 32:6–15)); id. at *10 (“Dr.
Bacon further opined that there was a difference between Fowler's work environment compared
with that of an unmasked healthcare worker directly exposed to COVID-19. Thus, there is nothing
natural to, inhering in, or an incident and concomitant of his particular occupation as a boxer that
exposed Fowler to COVID-19.” (citing Dr. Bacon Dep. II at 28:10–29:14)); id. at *11 (“Moreover,
during the COVID-19 pandemic, employees in a number of professions—including lawyers—
were deemed essential. This cuts against Fowler's arguments because it demonstrates that
employees of all professions that were deemed essential faced a risk of contracting COVID-19.”
(citing Dr. Bacon Dep. II at 31:6–32:9)).

26
Fowler’s evidence was not sufficient to show that COVID-19 was “natural to” his

employment as an essential employee at Perdue. Therefore, based upon the record before

us, we agree with the Superior Court that the decision by the I.A.B. is free from any

reversible legal error and is supported by substantial evidence.

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the decision of the Superior Court.

27