20016718.doc

NORTH CAROLINA INDUSTRIAL COMMISSION

I.C. NO. 20-016718, DARREN PETTIWAY and DEBBIE PETTIWAY WHITLEY, Next of Kin to, and JAMES WHITLEY, Administrator of the Estate of, ALEXANDER R. PETTIWAY, Deceased Employee, Plaintiffs v. COUNTY OF DURHAM, Employer, and CORVEL CORP., Carrier, Defendants.

OPINION AND AWARD for the Full Commission by JAMES C. GILLEN, Commissioner.

Filed: 17 October 2024

This case was heard before the Full Commission on 19 March 2024, upon appeal of Plaintiffs from an Opinion and Award filed by Deputy Commissioner Wes Saunders on 6 October 2023.  The deposition transcripts of Tenetra Young, D.P.H, and Dr. Becky Smith are part of the evidence of record.  
A P P E A R A N C E S
	Plaintiffs:	Lennon, Camak & Bertics, PLLC, Attorneys at Law, Raleigh, North Carolina, Michael W. Bertics, appearing. 

	Defendants:	Young, Moore and Henderson, PA, Attorneys at Law, Raleigh, North Carolina, Dawn Dillon, appearing. 

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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Saunders, the Form 44 Application for Review, and the briefs and arguments of the parties.  The Full Commission hereby enters the following Opinion and Award pursuant to N.C. Gen. Stat. § 97-85:
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
All parties are properly before the Commission, and this is the Court of proper jurisdiction for this action.
All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of parties.
On 13 April 2020, the parties were subject to, and bound by, the provisions of the North Carolina Workers' Compensation Act.
At all relevant times, an employment relationship existed between the parties.
Corvel Corporation was the compensation carrier on the risk.
Alexander Pettiway's (deceased) average weekly wage is $1,316.08.  This yields a compensation rate of $877.43.
Alexander Pettiway's (deceased) alleged date of injury is 13 April 2020.  Alexander Pettiway (deceased) died from complications of Covid-19 on 24 April 2020.
Alexander Pettiway (deceased) was out of work on the following dates: 13 April 2020 through 24 April 2020.
Plaintiffs have been paid the following compensation: None.

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EXHIBITS
The following documents were accepted into evidence as stipulated exhibits:
Stipulated Exhibit #1:  Executed Pre-Trial Agreement; and
Stipulated Exhibit #2:  Indexed and paginated set of documents including Industrial Commission forms and filings, discovery responses, death certificate, funeral expenses, estate and next of kin documents, medical records.
The following documents were accepted into evidence as Plaintiffs' exhibits:
Plaintiffs' Exhibit #1: Executive Orders #s 117, 120, 121, and 131;
Plaintiffs' Exhibit #2: Selfie Photos of Plaintiff; 
Plaintiffs' Exhibit #3: Photos of PPE;
Plaintiffs' Exhibit #4: Photos of N-95 Mask; 
Plaintiffs' Exhibit #5: Photos of Lobby Booth and Exit Button; 
Plaintiffs' Exhibit #7: News Media; 
Young Deposition Plaintiffs' Exhibit #1: CV of Kenetra Young;
Young Deposition Plaintiffs' Exhibit #2: Documents Provided to Expert;
Young Deposition Plaintiffs' Exhibit #3: Plaintiffs' Counsel's Summary of the Claim; 
Young Deposition Plaintiffs' Exhibit #4: Chronology of COVID19 Cases at Durham County Detention Center;
Smith Deposition Plaintiffs' Exhibit #1: Bureau of Vital Statistics Report on Covid-19 Mortality;
Smith Deposition Plaintiffs' Exhibit #2: Email Regarding Studies Relied Upon;
Smith Deposition Plaintiffs' Exhibit #3: Study on Risk of COVID Amongst Prison Staff; 
Smith Deposition Plaintiffs' Exhibit #4: Epidemiology Textbook Chapter; and
Smith Deposition Plaintiffs' Exhibit #5: Smith Study: Early experience with universal preprocedural testing for SARS-CoV-2 in a relatively low-prevalence area.
The following documents were accepted into evidence as Defendants' exhibits:
Smith Deposition Defendant's Exhibit #1: Smith's Study on Coronavirus; and
Smith Deposition Defendant's Exhibit #2: List of Top 25 Employers in Durham County (2021). 
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ISSUE

Whether Decedent's employment with Defendant-Employer placed Decedent at an increased risk of contracting COVID-19 compared to the public generally, or resulted in a hazard of contracting COVID-19 which distinguished his employment with Defendant-Employer in character from employment generally? 
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Based upon a preponderance of the evidence in view of the entire record, and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
This claim arises out of Decedent's 24 April 2020 death.  At the time of his death, Decedent was 55 years old and was employed by Defendant-Employer as a senior detention officer on the first floor of the Durham County Detention Center.  Decedent worked for Defendant-Employer for over 23 years, having started there on 30 July 1996.  Decedent's medical records indicate that Decedent had a history of gout, hypertension, and chronic obstructive pulmonary disease for which Decedent used oxygen when at home.
The Durham County Detention Center is a five-story building with diverse jobs assigned to the correctional officers who work there.
The first floor includes the intake and release section, the control room, a kitchen, and the facility lobby.  In April of 2020, during Decedent's shifts, up to three officers worked in intake, one to two worked in the control room, one worked in the kitchen, and Decedent worked in an enclosed office/booth in the lobby.
The second floor of the detention center is where Detention Intelligence, medical staff, medical facilities, and medical housing units are located.  In April of 2020, three to five correctional officers worked on the second floor.  
The third floor of the detention center contains four different detainee housing pods.  Pod 3-A is a mental health unit.  Pod 3-B is a processing pod for detainees after they leave intake.  Pod 3-C is a disciplinary and special needs pod.  Pod 3-D is a regular housing pod.  Each pod has its own set of assigned officers along with a roving officer and supervising Sergeant.  The fourth and fifth floors contain regular pod housing units that are similarly staffed.
The Durham County Detention Center staff operates in squads.  The A and C staff squads work day shifts and B and D staff squads work nights.  The day shifts run from 8:00 a.m. to 8:00 p.m. and the night shifts run from 8:00 p.m. to 8:00 a.m.  Decedent worked on the B squad, a night shift squad.  Approximately 33 officers worked within the Durham County Detention Center during the B squad night shift.
Due to his health issues, starting in 2018, Decedent was assigned to work as a lobby officer.  Decedent's work area was an enclosed office in the lobby surrounded by walls on two sides and a waist-high counter with plexiglass above it on the other two.  Plexiglass extends from the top of the counter all the way to the ceiling.  In the front of this enclosed office, a small sliding door extends approximately six inches from the top of the counter, allowing the office occupant to pass small items in and out.  This enclosed office is located greater than twelve feet from the lobby entrance.  Because Decedent worked on a night shift, he encountered less than five non-coworkers on a nightly basis.  Police officers, sheriff deputies, and arrested individuals enter the facility through a different area.  No other employees of Defendant-Employer worked near Decedent.
Recognizing the prevalence of COVID-19 in North Carolina communities, Governor Cooper declared a state of emergency on 11 March 2020 and invoked various Executive Orders during March and April 2020 in an attempt to curtail the spread of the virus.  Executive Order 121, issued on 27 March 2020 and titled "Stay at Home Order and Strategic Directions for North Carolina in Response to Increasing COVID-19 Cases," carved out exceptions, allowing 30 broad categories of "essential businesses" to remain open.
During March of 2020, the Durham County Detention Center implemented several new policies to mitigate the effects of COVID-19 pandemic such as transitioning the staff dining facility to take out service only and closing the onsite staff gym. 
Furthermore, effective 16 March 2020, the Durham County Detention Center was closed to the public.  Other than prison staff and detainees, the only individuals who were permitted to enter the facility were bail bondsmen and attorneys.
Additionally, the daily shift meetings were changed.  Prior to the COVID-19 pandemic, at the beginning of each shift, all the members of that shift's squad would report to the second-floor briefing room to go over new information that officers would need to know during the shift.  Retired Detention Staff Sergeant Bradsher testified that, on 19 March 2020, the Durham County Detention Center suspended these mass pre-shift briefings.  He explained that, beginning on that date, the pre-shift briefing meetings were much smaller - with only the officers who worked on each individual floor present and social distancing required.  These smaller briefings were located throughout the facility at different locations.
On 23 March 2020, Defendant-Employer began temperature checks on all arrestees.
On 27 March 2020, Defendant-Employer began checking the temperatures of staff members as they entered the building for their shift.  Retired Detention Staff Sergeant Bradsher testified that this process was done in the lobby and that he went to the lobby several times to sit with the facility nurse while the temperature checks were completed.  He explained that the nurses used a skin surface thermometer to check the temperatures and that the staff were social distanced while waiting for their turn.  Retired Detention Staff Sergeant Bradsher further testified that, to his knowledge, the lobby officer never had to administer the temperature checks and that anyone who entered the facility - such as bail bondsmen - had to undergo a check upon entry.  The enclosed lobby office in which Decedent worked was greater than twelve feet from where the temperature checks took place.
Anthony Prignano, who was the Director of the Durham County Detention Facility during the time relevant to this claim, testified that the Durham County Detention Center was in a state of "complete lockdown" as of the end of March 2020.  Chief Prignano explained that he and Captain McKinney developed the COVID-19 protocols for the Detention Facility in concert with the CDC and that, through a Webinar, learned from the experiences of a detention facility in Riverside, California which had experienced the beginning of the pandemic slightly earlier.  The Durham County Detention Center leadership was in constant communication with the local health department and the Centers for Disease Control and Prevention through electronic guidance, webinars, and specific interactions to ensure they had the most current information.
Chief Prignano described the movement within the facility during the night shift during this period as "very limited movement . . . [t]he only movement you would probably have are officers going on breaks and new detainees coming and having to go up to classification."
Chief Prignano testified that he relied on supervisors to enforce the various COVID-19 protocols instituted by the facility: 
It was expressed to the supervision that this is where we're going to go; ensure that your people are wearing the appropriate mask and they're not clustering them on each other and they are social distancing. I even sent out memos and directives to not gather all in one place, limit your travel throughout the facility; if you . . . [d]on't need to move, don't move.

Chief Prignano observed that the staff took the protocols seriously.
Chief Prignano testified unequivocally that lobby officers did not administer temperature checks and added that the areas where the temperature checks were administered were "monitored by a supervisor to ensure . . . proper social distancing."
Retired Detention Staff Sergeant Bradsher testified regarding the detainee intake process at the Durham County Detention Center.  As of 23 March 2020, new detainees were met outside the facility by staff wearing PPE, had their temperatures checked, and were asked health screening questions.  In many situations, if a detainee registered a temperature, the magistrates would release the detainee unbonded. Offenders released by the magistrate for any reason would not enter the Durham County Detention Center.
Prior to the pandemic, for the night shift to receive and process four to five new detainees would be considered a large amount.  Beginning in March 2020, intake saw a significant reduction in new detainees to be processed.  During March and April 2020, the intake department received one to two new detainees per night on average.  Although the intake area is on the first floor of the Durham County Detention Center, new detainees would never enter the lobby area of the facility during this process.
On 5 April 2020, Defendant-Employer initiated a 14-day quarantine period for any individuals who were exposed to someone infected with COVID-19.  Also on 5 April 2020, all staff were mandated to wear protective eyewear, N-95 masks, and gloves.
Captain Alicia McKinney, who was the security captain assigned to Durham County Detention Facility's C and D squads in March and April 2020, testified before the Deputy Commissioner in this matter.  As a part of her duties, during this time Captain McKinney assisted in preparing various memos for detention center staff related to the new COVID-19 protocols.  She testified that, as a part of the protocols that were put in place in late March, officers were instructed to limit their movement, limit meetings as much as possible, and were discouraged from eating meals with other staff members in enclosed spaces.  She also testified that, by early April, staff were mandated to wear N-95 masks at all times.
The record contains log notes prepared by the lobby officers from 29 February 2020 to 24 April 2020.  These notes were often made in 30-minute intervals and frequently read: "lobby secure, no problems to report" or expressed an equivalent message.  The lobby officer making the note wrote their assigned staff number at the end of the note.
On two occasions, Decedent made notes reflecting that the same homeless person came to the lobby door seeking medical help, with the last of these occasions being on 21 March 2020. Otherwise, Decedent's lobby notes during this period contain no other mention of individuals coming to the lobby door or into the lobby from the public during his shifts.
According to the daily staffing reports contained in the record, during Decedent's shifts on April 3, 4, 5, 8 and 9, there were six to eight employees working on the first floor during the 8:00 p.m. to 8:00 a.m. B squad shift.  Decedent was stationed inside his enclosed lobby office during these shifts.
The last shift Decedent worked prior to becoming symptomatic was the shift spanning the evening of 9 April 2020 to the morning of 10 April 2020.  On the evening of 13 April 2020, Decedent reported for his next scheduled shift and entered the lobby by himself. Nurse Lunsford, who was the nurse stationed in the lobby to administer temperature checks at that time, testified that she observed Decedent sweating, that she remarked to Decedent that he did not look good, and that Decedent responded that he did not feel well.  Decedent was found to have a high temperature and was instructed to go to the hospital for further evaluation.  
Decedent presented to the WakeMed Hospital Emergency Department the night of 13 April 2020.  The medical records reflect that Decedent presented "with a reported history of having a 100.4 fever at work," and that he had been "feeling lightheaded for the past several days" as well as experiencing "mild shortness of breath."  The 13 April 2020 record also reflects that Decedent "works at the Wake [sic] County Detention center and is not aware that he has been around anyone that has the Covid-19 infection." 
The medical records reflect that Decedent tested positive for COVID-19, and, due to his comorbidities, was admitted to WakeMed for treatment.  It was initially anticipated that Decedent would require hospitalization for "at least two nights."  Decedent remained in the hospital until his death.
The WakeMed records reflect that on 17 April 2020, Decedent's hypoxia progressed significantly to the point that he was intubated, that he eventually developed renal failure necessitating dialysis on 20 April 2020, and that dialysis was discontinued due to Decedent developing clots in the dialysis tubing.  Maximum vasopressors were administered on 24 April 2020.  That same day, Decedent's family changed Decedent's status to "do not resuscitate" and Decedent progressed to cardiac arrest and died at 8:42 p.m. on 24 April 2020. Decedent's Death Certificate lists "COVID-19" and "acute hypoxic respiratory failure" as his immediate causes of death and "septic shock with multisystem organ failure" as a significant condition contributing to his death.
Seven correctional officers who worked on the B shift, or worked periods overlapping with the B shift at the Durham County Detention Facility during the first two weeks of April 2020, became infected with COVID-19 in April of 2020.  The infected officers were Decedent, Sergeant Bradsher, Officer Patterson, Officer Lunsford, Officer Holloway, Officer Riddick, and Officer Reginald Dean.  These infections were confirmed between 13 April 2020 and 22 April 2020.  All of these officers worked on the first floor of the Durham County Detention Facility with the exception of Officer Patterson, who occasionally visited Decedent at his enclosed lobby office.
Former Detention Officer Thurmon Patterson, who was diagnosed with COVID-19 on 19 April 2020, testified before the Deputy Commissioner.  Former Detention Officer Patterson medically retired from working for Defendant-Employer in August 2021 due to the effects of COVID-19.  He testified that he still occasionally has "brain fog" as a result of his COVID-19 infection.
Former Detention Officer Patterson, who worked in the mental health unit on the third floor of the Durham County Detention Center, knew Decedent and testified that the two were friends.  Officer Patterson also worked on the B shift.  Prior to working at the Durham County Detention Center, Decedent and Officer Patterson worked together at IBM.  Despite working on different floors, the two would occasionally talk socially over the intercom phones as they worked and sometimes ate their mid-shift meal together in Decedent's lobby office or on the third floor.   Although Officer Patterson professed to be Decedent's friend, he also testified that he did not know if Decedent lived alone or with another person, or if Decedent had any romantic relationships, explaining: "That was not my business to be in his personal like that."  When asked what Decedent did with his free time outside of work, Officer Patterson testified "Not . . . much.  He just stay[ed] at home."
Officer Patterson testified that he personally viewed Decedent performing temperature checks in the lobby area and that he and Decedent ate together in the lobby office without wearing masks during the April 9-10 shift.  In support of this, Plaintiffs submitted into evidence a "selfie" photo of Decedent, that, according to Officer Patterson, Decedent inadvertently took with Officer Patterson's cell phone inside the lobby office during the April 9-10 shift during Officer Patterson's mealtime visit with Decedent.   Officer Patterson is not visible in the photo.
Officer Patterson testified that he spoke on the phone to Decedent while Decedent was hospitalized and that during this conversation Decedent expressed his belief that he contracted COVID-19 in the lobby area of Durham County Detention Center while administering temperature checks.  Officer Patterson also testified "I've actually seen him take a temperature."  
Staff Sergeant Ellerbe, who works on the second floor of the Durham County Detention Center in the Detention Intelligence unit and who supervised Decedent for approximately five years, testified before the Deputy Commissioner.  Staff Sergeant Ellerbe was tasked with performing COVID-19 contact tracing for Defendant-Employer.  Staff Sergeant Ellerbe testified that to perform the contact tracing, he viewed "countless hours" of security video and that, to be a contact deemed worthy of tracing, the individuals' interaction in question had to be "[w]ithin six feet for over ten minutes."
Staff Sergeant Ellerbe contradicted significant portions of Officer Patterson's testimony, testifying that he never observed video showing Decedent and Officer Patterson together for over ten minutes and never saw Officer Patterson enter the lobby booth during the 9-10 April 2020 shift.  In fact, Staff Sergeant Ellerbe did not identify Officer Patterson as having any traceable contact with Decedent.  Staff Sergeant Ellerbe testified that he specifically watched the security video from the night shift of April 9-10 and did not see the two in the booth together for over ten minutes, or in the booth together for any amount of time without wearing masks.  Either of those occurrences would have prompted him to flag it as a traceable contact.  Staff Sergeant Ellerbe testified that the video showed a clear view of everything going on in the lobby booth.  Staff Sergeant Ellerbe testified that the 9-10 April 2020 shift video showed "Patterson bringing [Decedent] food.  He . . . came, he visited, he left, he came back with food.  I did not see him go into the booth."  When asked how it was possible for Decedent to have taken a time-stamped selfie with Officer Patterson's phone during that time, Staff Sergeant Ellerbe testified "If he was moving fast enough and the camera didn't pick him up.  But . . . he wasn't viewed on the camera by me during that time."  Staff Sergeant Ellerbe testified that Officer Patterson gave Decedent his food using the door on the side of the booth and that it was possible that he gave Decedent his phone then, or that he slid the phone through the booth's slot another time.
Although Officer Patterson was adamant during his testimony that he ate with Decedent during the shift beginning on Monday, 13 April 2020, and that during this shift he also showed him his phone, the preponderance of the evidence in view of the entire record shows that Officer Patterson is mistaken.
Based on the preponderance of the evidence in view of the entire record, including Sergeant Ellerbe's testimony about contract tracing, the Full Commission finds that Officer Patterson never entered Decedent's lobby office or ate lunch with Decedent during the 9-10 April 2020 shift.  
Based upon a preponderance of the evidence in view of entire record, the Full Commission affords little weight to the testimony offered by former Officer Patterson regarding Decedent administering temperature checks and Decedent's alleged remarks to him about contracting COVID-19 while administering a temperature check.  The Full Commission assigns greater weight to the testimony of Retired Detention Staff Sergeant Bradsher and Chief Prignano; to Decedent's own lobby logs, which do not document Decedent administering temperature checks; and to Decedent's medical records, which reflect that he was unaware of any COVID-19 exposures.  
Based upon a preponderance of the evidence in view of entire record, the Full Commission finds that there is insufficient evidence to show that Decedent administered temperature checks.  
The parties deposed Kenetra Young, D.P.H. on 8 February 2023.  D.P.H. Young has a Bachelor of Science degree in medical technology from Michigan State University, a Master of Business Administration from the University of Phoenix, a Master in Public Health from Walden University, and a Doctorate in Public Health focusing on epidemiology, also from Walden University.
From January 2017 to December 2020, D.P.H. Young worked as the Communicable Disease Program Manager for the City of Detroit Health Department.  Presently, D.P.H. Young is the Public Health Program Director at Henry Ford College in Dearborn, Michigan.
D.P.H. Young testified that seven employees at the Durham County Detention Center who contracted COVID-19 constituted a "cluster" and that it was likely that "someone within this group or this cluster was sick and spread it to others."
Regarding increased risk, D.P.H. Young testified that, in April of 2020, detention facility employees generally were at an increased risk to contract COVID-19 compared to the public.  D.P.H. Young also testified that Decedent specifically was at increased risk of contracting COVID-19 at the Durham County Detention Facility compared to the rest of Durham County. 
D.P.H. Young's increased risk conclusions appear to be based on Decedent having co-workers who became infected, rather than on the characteristics of his employment or the hazards of Decedent's specific job duties.  D.P.H. Young's opinion testimony fails to adequately convey what duties or characteristics of Decedent's employment she thought increased Decedent's risk of contracting COVID-19 compared to members of the population generally or to employment generally.
The parties deposed Dr. Becky Smith on 9 March 2023 and 26 July 2023.  Dr. Smith has an undergraduate degree from the University of Wisconsin and attended medical school at the University of Wisconsin-Milwaukee.  She subsequently completed an internal medicine residency at Duke University as well as a three-year fellowship in infectious disease at Duke.  Dr. Smith is board certified in both internal medicine and infectious disease and has been working at Duke since 2017.  
Dr. Smith is currently an infectious disease doctor at Duke Hospital. Specifically, she is the Senior Medical Director for Infection Prevention and Control.  Dr. Smith's duties require her to prevent and mitigate healthcare transmission of infectious diseases.  During the onset of COVID-19, Dr. Smith was a member of Duke's COVID-19 leadership task force and developed protocols for the Duke Health System.
Regarding increased risk, Dr. Smith characterized Decedent's specific job at the Durham County Detention Center as being similar to an administrative assistant with a private office and testified that Decedent's risk of contracting COVID-19 was "[n]o greater than the public's risk at his own job . . . [o]r even comparing to other jobs, perhaps even lower risk."  Dr. Smith based her opinions on Decedent's work conditions - he worked the night shift, worked mostly alone in an enclosed space, and did not have job duties related to managing and interacting with detainees.  
Dr. Smith testified that lumping Decedent into a broad category of "detention officers" does not accurately provide an assessment of Decedent's risk of contracting COVID-19 because quantifying Decedent's risk necessarily requires separating his specific job duties from the fact that he worked in a detention facility.  Dr. Smith gave the example of her administrative assistant, who works in a hospital.  While some hospital workers may be at an increased risk of contracting COVID-19, Dr. Smith explained that her assistant would not be at an increased risk solely because she worked in a hospital.  Dr. Smith explained: "[Decedent] didn't have direct interaction with detainees, . . . nor did he . . . ever have to go through . . . areas where they were." When asked if she was aware that there was not a diagnosed case of COVID-19 among the inmate population until the summer of 2020, Dr. Smith testified that she was, adding that Decedent "was six degrees removed from detainees anyway" and "that place was not an increased risk because of its detainee population."
Dr. Smith further testified that Decedent was at no greater risk of contracting COVID-19 compared to the general residential population of Durham at that time: 
My opinion is that he would have been at equal risk as compared to . . . the people that are not part of the essential businesses going to work every day, but yet are allowed to sort of freely go to the grocery store, or go do all the things that meet the criteria for being open with masking and social distancing.

During her deposition Dr. Smith agreed that numerous employers, including many in the healthcare industry, remained open in Durham during the early months of the pandemic.  When asked if Decedent's job placed him at an increased risk of contracting COVID-19 as compared to the employee population in Durham at the time, Dr. Smith responded: 
His specific job characteristics I would put as 'no.'  He's mostly working a night shift.  He's working mostly alone and in an enclosed [area].  He specifically does not have duties for managing detainees . . . I would put him on the lower spectrum of risk . . . the only zero risk is if you're at home with no one else, and don't see anyone ever.  

Based on their relative educations and experience, the Full Commission gives greater weight to the testimony of Dr. Smith than it does to the testimony of D.P.H. Young.  
Given Decedent's extremely limited contact with detainees, given that the cluster of COVID-19 cases among Durham County Detention Facility employees during the first two weeks of April 2020 was localized to first-floor B-shift workers even though all shifts had equivalent exposure to the same detainees, and given the evidence that there was no diagnosed case of COVID-19 among the Durham County Detention Facility detainee population until the summer of 2020, based on a preponderance of the evidence in view of the entire record, the Full Commission finds that Decedent, more likely than not, contracted COVID-19 from a coworker who brought COVID-19 from outside of the Durham County Detention Facility.
Based on a preponderance of the evidence in view of the entire record, the Full Commission finds that Decedent's employment with Defendant-Employer did not expose him to an increased risk of contracting COVID-19 compared to the public generally, and finds that Decedent's employment did not result in a hazard of contracting COVID-19 which distinguished the character of his employment from employment generally.  In making these findings, the Full Commission notes:  1) Defendant-Employer was one of many businesses and employers that remained open in Durham during the early months of the pandemic; 2) the testimony of Dr. Smith regarding Decedent's risk of contracting COVID-19 compared to Durham's residential population at that time and compared to Durham's employee population at that time; 3) the precautionary COVID-19 protocols implemented by Defendant-Employer (including but not limited to closing the dining hall and gym, mandatory employee social distancing and limited movement, employee and detainee temperature checks, and smaller briefings); 4) that Decedent's work station was an enclosed private office; 5) Decedent's assignment to the night shift, during which few detainees and members of the public enter the facility; 6) Decedent's limited and brief contacts with coworkers; and 7) Decedent's lack of contact with detainees.
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
In workers' compensation cases, the plaintiff has the burden of proving every element of compensability.  As part of this burden, the plaintiff must establish these elements by a preponderance of the evidence in view of the entire record.  N.C. Gen. Stat. § 97-84 (2023); Harvey v. Raleigh Police Dep't., 96 N.C. App. 28, 35, 384. S.E.2d 549, 553 disc. rev. denied, 325 N.C. 706, 388 S.E.2d 454 (1989).  Regarding the Industrial Commission's ability to draw inferences from the evidence presented, the North Carolina Court of Appeals has held that  "[it] is for the Commission to determine the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from it . . . ."  Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002).
Given that COVID-19 is not enumerated within N.C. Gen. Stat. § 97-53, the requirements of N.C. Gen. Stat. § 97-53(13) must be met for this claim to be compensable.  N.C. Gen. Stat. § 97-53(13) reads:
Any disease … which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.

Regarding the elements required to prove a compensable occupational disease under that section, the Supreme Court of North Carolina has held: 
For a disease to be occupational under G.S. 97-53(13) it must be (1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be a causal connection between the disease and the [claimant's] employment. 

Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (internal quotations omitted).  The first two elements are satisfied if the employment exposed the worker to an increased risk of contracting the disease compared to the public generally.  Id. at 93-94, 301 S.E.2d at 365.  "The greater risk in such cases provides the nexus between the disease and the employment which makes them an appropriate subject for workman's compensation."  Booker v. Duke Med. Ctr., 297 N.C. 458, 475, 256 S.E.2d 189, 200 (1979).   
In Higgs v Southeastern Cleaning Service, a claimant sought workers' compensation benefits after he contracted tuberculosis while working as a janitor, the claimant having worked closely with a co-worker who developed tuberculosis.  122 N.C. App. 456, 457, 470 S.E.2d 337, 338 (1996).  The Higgs Court concluded that the claimant failed to prove increased risk.  The Court reasoned: 
Plaintiffs' evidence fails to show any correlation between his work as a janitor and the development of tuberculosis, with the exception of his exposure to an employee with the disease. Plaintiff would have been exposed to the disease of tuberculosis whether he was a janitor or a worker in some other capacity. In fact, Plaintiffs' treating physician . . .  testified that there was nothing about the nature of a janitorial job in a department store which would increase a person's risk of developing tuberculosis. 

Id. at 461, 470 S.E.2d at 341.  The Higgs Court relied heavily on the rationale of the Supreme Court in Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979).  The Booker Court concluded that a medical laboratory worker, who regularly spilled hepatitis-infected blood onto his hands as he worked, had been placed by his employment at an increased risk of contracting hepatitis.  Booker, 297 N.C. at 461, 256 S.E.2d at 192.  The Booker Court observed that N.C. Gen. Stat. § 97-53(13) "does not require that the disease be one which originates exclusively from the employment" in which the claimant worked, but that "the conditions of the employment must result in a hazard which distinguishes it in character from employment generally."  Id. at 473, 256 S.E.2d at 199 (internal quotes and cite omitted).  The Booker Court then illustrated this point:
For example, it is clear that the law was not intended to extend to an employee in a shoe factory who contracts pneumonia simply by standing next to an infected co-worker. In that example, the employee's exposure to the disease would have occurred regardless of the nature of the occupation in which he was employed. To be within the purview of the law, the disease must be so distinctively associated with the employee's occupation that there is a direct causal connection between the duties of the employment and the disease contracted.

Id., 297 N.C. at 473-74, 256 S.E.2d at 199. 

In this case, given that Defendant-Employer was one of many businesses and employers that remained open in Durham during the early months of the pandemic, the testimony of Dr. Smith regarding Decedent's risk of contracting COVID-19 compared to Durham's residential population at that time and compared to Durham's employee population at that time, the precautionary COVID-19 protocols implemented by Defendant-Employer (including but not limited to closing the dining hall and gym, mandatory employee social distancing and limited movement, employee and detainee temperature checks, and smaller briefings), that Decedent's work station was an enclosed private office, Decedent's assignment to the night shift during which few detainees and members of the public enter the facility, Decedent's limited and brief contacts with coworkers, and Decedent's lack of contact with detainees, and that it is more likely than not that Decedent contracted COVID-19 from a coworker who brought COVID-19 from outside of the Durham County Detention Facility, the Full Commission concludes that Decedent's employment did not expose him to an increased risk of contracting COVID-19 compared to the public generally, and concludes that Decedent's employment did not result in a hazard of contracting COVID-19 which distinguished the character of his employment from employment generally.  Rutledge, 308 N.C. at 93, 301 S.E.2d at 365; Booker, 297 N.C. at 475, 256 S.E.2d at 200; Higgs, 122 N.C. App. at 457, 470 S.E.2d at 338.   
* * * * * * * * * * *
Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission makes the following: 
ORDER
Plaintiffs' claim for workers' compensation benefits is DENIED. 

Chair BADDOUR and Commissioner PHILLIPS concur. 

 Smith Deposition Plaintiffs' Exhibit #4 is admitted for illustrative purposes only.  
 Defendants did not appeal the Deputy Commissioner's conclusion that Plaintiffs satisfied the causation element under N.C. Gen. Stat. § 97- 53(13).  Therefore, this issue is not before the Full Commission for determination.   

 At the time of the hearing before the Deputy Commissioner, Mr. Prignano was the Chief of Police for the North Carolina Department of Agriculture and Consumer Services.  Therefore, he will be identified as "Chief Prignano."
 Officer Bradsher worked a 10 a.m. - 10 p.m. shift overlapping the B and A shifts.
 Officer Riddick normally worked D-shift in the kitchen. However, on 9 April 2020 he worked on the B-shift on the first floor in intake and release.

I.C. NO. 20-016718		Page 2