Introduction

This commentary examines the dissenting opinion in Brittany Foster v. PrimeCare Medical of West Virginia, Inc., decided May 27, 2025, by the Supreme Court of Appeals of West Virginia (Justice Armstead, joined by Justice Bunn, dissenting). Foster, a medical technician at Southern Regional Jail, filed a workers’ compensation claim alleging that she contracted COVID-19 on the job. The Intermediate Court of Appeals (ICA) had denied her claim for failure to satisfy the statutory six‐factor test in West Virginia Code § 23-4-1(f). The majority of the Supreme Court reversed and found the claim compensable; the dissent would have affirmed the ICA’s denial. The core issue is the proper application of the six-factor test governing “ordinary diseases of life” such as COVID-19 and the claimant’s burden of proof.

Summary of the Judgment

The Supreme Court’s majority reversed the ICA, concluding that Foster met her burden under § 23-4-1(f) when all circumstances were considered. In dissent, Justice Armstead would have affirmed the ICA’s ruling because:

• Foster failed to establish that she contracted COVID-19 “in the course of employment” as required by Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970).
• She presented no evidence on the critical fourth factor—whether the hazard of contracting COVID-19 was greater at work than outside.
• The weight of medical opinions—including those of her treating physicians—did not link her infection to her occupation.

Accordingly, the dissent emphasizes that a claimant must satisfy all six factors of § 23-4-1(f) to recover for an “ordinary disease of life.”

Analysis

Precedents Cited

The dissent invokes several foundational decisions on workers’ compensation burden of proof and compensability:

• Barnett v. State Workmen’s Comp. Comm’r (Syl. Pt. 1): Establishes three elements for compensability—(1) personal injury, (2) received in the course of employment, (3) resulting from employment.
• Sowder v. State Workmen’s Comp. Comm’r (Syl. Pt. 2): Confirms the claimant bears the burden of proof on all elements of the claim.
• Barnett v. Wolfolk (Syl. Pt. 3): Permits appellate courts to affirm on any legal ground supported by the record, even if not relied on below.

These cases underpin the requirement that Foster carry the full burden of proving each statutory factor tying her COVID-19 infection to her employment.

Legal Reasoning

The dissent’s reasoning proceeds in two main steps:

1. “Course of Employment” Requirement: Foster had potential exposures both on and off the job. Her first COVID-19 test (five days after workplace exposure) was negative, and her positive test came seven days after non-work activities. Treating physicians explicitly marked her infection as non-occupational. An independent medical examiner conceded the source could not be determined scientifically. On balance, the preponderance of medical evidence failed to show her infection occurred at work.
2. Six-Factor Test under § 23-4-1(f): This statutory provision governs “ordinary diseases of life” (e.g., COVID-19) and requires proof of:
   • a direct causal connection between work conditions and disease;
   • a natural incident of the work;
   • a proximate causation by employment;
   • that the hazard did not equally exist outside work;
   • incidental to the employer–employee relationship;
   • origin in a risk connected with employment.
   The ICA had focused on factor 4 (hazard outside employment) based on a study showing healthcare professionals did not face increased infection risk. Foster failed to introduce any countervailing evidence on that factor despite an opportunity. The dissent holds that omission fatal to her claim.

Potential Impact

The dissent’s approach, if adopted as precedent, will:

• Reinforce strict compliance with the six-factor test for ordinary diseases, emphasizing that every factor must be proven.
• Require claimants to present affirmative evidence on comparative risk (factor 4), preventing speculative claims based solely on employment status.
• Limit workers’ compensation for widespread contagious diseases, thus controlling claim volume and preserving the statutory balance between employers and employees.
• Guide lower tribunals to give substantial weight to neutral or non-occupational medical opinions and to hold claimants to their burden of proof.

Complex Concepts Simplified

• “Ordinary Disease of Life”: A common illness (e.g., flu, COVID-19) to which everyone is exposed outside work; not compensable unless all six statutory factors are met.
• “Course of Employment”: The timeframe and environment of work. Claimant must prove injury or disease was contracted while performing job duties, and not through ordinary community exposure.
• “Proximate Cause”: The primary factor that directly leads to the injury or disease. Medical evidence must show employment was the proximate cause, not merely a possible contributing factor.
• Six-Factor Statutory Test (§ 23-4-1(f)): A set of criteria to distinguish work‐related disease from community‐acquired disease; all factors must be satisfied for compensation.

Conclusion

The dissent in Foster v. PrimeCare Medical underscores the rigorous burden claimants face under West Virginia Code § 23-4-1(f) when seeking compensation for ordinary diseases. It clarifies that:

• Each element of compensability—especially “course of employment” and the six‐factor test—must be established by a preponderance of evidence.
• A claimant cannot rely on speculation or incomplete evidence, particularly on comparative risk (factor 4).
• Neutral or adverse medical opinions diminish the claimant’s proof even if other factors might suggest occupational exposure.

This dissent, if followed in future cases, will sharply curtail compensation for everyday diseases like COVID-19 absent clear, comprehensive proof that the workplace was the proximate source and presented a greater hazard than the community at large.