-: SJC 13712, Jeff Stacy versus Unitel Corporation, et al.
(person coughs)
Wolohojian: Okay.
Attorney Canniff, whenever you're ready.
Take your time. Whenever you're ready, but take your time.
-: Thank you very much.
May it please the court,
Chief Justice and other members of the associate members
of the Supreme Judicial Court.
My name is John Canniff.
I'm accompanied today by my colleague Robert Martin,
and I'm here today on behalf
of the Travelers Insurance Company in the matter
concerning Stacy versus the Unitel Corporation.
As I'm sure you're well aware,
this is a workers' compensation matter,
and although the Unitel Corporation did have coverage,
I basically represent Travelers Insurance.
I'd like to thank the court
and specifically whomever was kind enough
to sua sponte reach down and grabbed this one
from the appeals court.
It's not often that a workers' compensation matter
reaches the lofty heights here at the SJC,
and secondly, I'd like to thank the court
for giving us a roadmap for the issues
that are being presented here today,
notably in the request for amicus briefs,
and I know that there was an amicus brief filed
in this matter.
Why are we here today?
We're here today basically because we believe there
was an error in the determination of the question of fact,
question of fact being did the employee, and if I may,
I will adhere to the nomenclature of employee insurer
and employer rather than appellate, appellee, et cetera.
It's just easier to understand the context
and the players in this case.
Was there an error in the determination
of a question of fact?
That calculus comes from Perrone's case, 1949.
It was the first time that the then added first sentence
to Section 1(7A) of Chapter 152 regarding a personal injury
that stems from a infectious
or contagious disease was considered,
and the calculus was such that,
under those set of circumstances where-
-: Why don't you focus on the exact language?
'Cause I don't know if it's a question of fact
or a meaning of the statutory language.
So why don't you keep reading?
Stemming from a infectious injury.
Why don't you keep going?
Read the rest of the relevant statutory language.
-: The relevance includes infectious or contagious diseases
if the nature of the employment is such
that the hazard of contracting such diseases
by an employee is inherent in the employment.
-: Right. So, okay.
That's what we gotta answer,
and I don't know if that's so much a question of fact
as a question of law, right?
The nature of the employment such as a hazard
is whatever the language is, right?
-: Yes, your Honor. -: Okay.
In COVID, you read that, I take it,
to be limited to the doctors and nurses, or is that your-
-: I would say individuals whose employment brings them
in direct contact with the infectious disease.
-: Well, there's a second question
whether this is an essential employee
at the time he gets COVID, but he's an essential employee.
Those people are placed at much greater risk
while the rest of us are at home working from home on Zoom.
So doesn't he meet the definition of that statutory language
by being an essential employee
if he's an essential employee?
I understand there's a second question,
but why don't you address the first one?
'Cause I have trouble thinking that someone
who's performing an essential task for the state
during this COVID crisis isn't being put
in harm's way here the way the statute describes.
-: Well, your Honor, the second half of the question is,
was he indeed essential at the time?
And I can- -: So save that.
-: I can get the- -: Save that.
Why don't you answer that first question?
'Cause if you went on the first question,
we don't have to answer that question, right?
-: Well, your Honor,
if one understands the actual chronology
and facts of this case,
the essential services designation or essential workforce,
it's not particular to the employee.
It's particular to the industry.
There were 14 basic economic categories
of employments that were designated essential,
but after June 8th, when there was a reopening-
-: So if he had contracted COVID in March 2020,
your position would be yes, this was inherent in the nature
of his employment that he got this personal injury, or-
-: No, no, your Honor, I would- -: Okay. Why not?
What if he had gotten COVID in March 2020
when he was among the few people in the Commonwealth
who were required or allowed even
to go out to perform their job?
Why would he not fall
within the definition -: Because the-
-: of personal injury at that time?
-: There's nothing to say that he would've been exposed
to COVID directly because of his employment.
-: Well, I think that what is inherent in his employment,
I think the essential services piece
is a little bit of a red herring.
What is inherent in this man's job
is that he is required to be in contact with other people.
He has to go to job sites.
Unlike people who can do their job from a computer
and could work remotely, an inherent aspect
of his employment is that he has to be there in person,
and so that put him at risk to a degree that's different
from other essential workers who also were required
to report to work but could do so remotely.
Is that not true?
Why is that not inherent in his employment?
-: The nature of the employment is that,
under ordinary circumstances,
this individual would not be exposed
to any infectious or contagious disease.
-: Right, which is why I asked you to assume
for the sake of this particular oral argument
that he had not, you know, in January 2019,
but in March 2020 when there was an emergency declared
and everybody was sent home except for him
and his coworkers and other essential workers,
why wouldn't that be inherent in his employment
that he would be exposed to this infectious disease?
-: Your Honor, the possibility of him being exposed
to the contagion was not contingent upon the dates
that he was an essential worker.
-: Is it the legislative history that we look?
Is it the legislative history that we look at
to help guide us in what inherent in the employment means?
As I read the brief and it occurred to me that it, you know,
was more geared towards tuberculosis outbreaks and the like.
John: Yeah, sure.
-: Is that what we look to with the legislative history,
or are there cases that guide us in this area?
John: Well, no.
Actually, your Honor, there's very few cases.
-: Right. That's the problem. -: There was-
-: There's amount of state cases that help you,
but as far as this statute goes in the legislative history,
can you help me out as to how we're supposed
to use those tools to interpret the statute?
-: Well, your Honor,
we only have about five cases in this
since the first sentence of Section 1(7A)
was put into place in 1942.
-: What about any legislative history?
Do you have any of that?
-: I'm not familiar with it, your Honor, in that regard.
What I will say is this,
that I believe that the fact finder in this case,
the administrative judge used the word essential workforce
or essential services as the equivalent
of essentially characteristic,
and now that's an entire misuse
and misapplication of one term for another.
-: But, I mean, a judgment call is made that certain people
are going to have to be exposed to COVID
to keep the rest of us safe and operational,
and those people are gonna have to go to work.
It's not like tuberculosis where, you know,
we all sort of have the same type
of exposure except for the doctors.
This group of people was put in harm's way
because of their jobs,
and it seems to me hard to ignore that.
John: Well, that's hypothetical, your Honor, that he was-
-: No, it's not hypothetical.
We all know that they had to go to work
and were exposed to COVID at a time
when people were getting sick
and the rest of us were told to stay home
so that we wouldn't spread this anymore.
John: But the facts of this case
don't express that hypothetical situation, your Honor.
-: But it does because this isn't a situation
where there was a category of essential worker
that was allowed to go back and do their work in silos.
Going back to Justice Dewar's point,
the record indicates
that the way this particular essential occupation worked
is they all gathered somewhere
and they were all given assignments
and they were all in congregate settings,
and then they broke out into one and two,
I think two-person trucks,
and they went out to do whatever they did.
And I gotta marry two points here because,
okay, in the conceptual world,
the linemen that do this electrical work do not have
as an inherent part of the nuts and bolts
of the job potentially exposure to COVID,
but if you focus on Justice Wendlandt's point,
this is not just in the conceptual world.
This is in the middle of COVID.
So now they're in March of 2020.
There's this contagious disease out.
They're in a congregate setting
because that's how they work,
and they have to do this
because they're essential employees.
Why is the decision of the judge in this case,
in that was affirmed, how is that wrong?
I don't understand. -: But the essential status
may have existed in May of 2020, your Honor,
but it did not exist after June of 2020.
-: Well, that was my question was, yeah.
So assuming what you just said is true,
when did this particular individual contract COVID?
John: February of 2021, your Honor.
-: And by then, what had reopened?
-: There were four phases. -: Phase 1 and 2?
-: No phases 1, 2, and 3. -: Okay, so three phases.
So now the question is is it, you know,
while not entirely normalized,
now the nature of his employment at this time, you know,
was it such that he would contract the infectious disease?
-: Well, the nature of his employment at the time
that he contracted the disease was the equivalent
to all the other open businesses.
-: Phase 1 through 3? -: Phases 1 through 3.
He was on that same status.
-: Right, so if we say that for him,
the nature of his employment at that time falls
within the personal injury definition,
then the same might be true for all the phase 1, 2, and 3,
so long as they worked in some sort
of congregate more than one person setting, right?
-: Are you saying that they, too, would've been-
-: Right, if the administrative judge's decision stands here,
there's no reason why it wouldn't apply
to all employees in phases 1, 2, and 3.
-: Your Honor,
that's the reason why there's a specific restriction
for a hazardous or contagious, I'm sorry,
an infectious or contagious disease
in the first sentence of Section 1(7A).
Everyone under normal situations,
irrespective of the COVID epidemic,
is subject to in the general population possible infection
from a infection, from a contagion.
Think measles.
Had this individual been subject to measles
at any point in time during this timeframe,
we certainly would not have considered his employment
to be essentially characteristic of an exposure to measles.
-: Can I ask you what the standard of review is here,
and in particular, does the board here get any deference
on its interpretation of the statute?
-: As I said in my brief, your Honor,
this is interpretation of the statute,
and that responsibility is left to the courts,
not to the Industrial Accident Reviewing Board,
which is an administrative body.
Dewar: So you're saying they do not get any deference
in interpreting the statute that they administer?
-: With respect to their experience, your Honor, they do,
I would say, get half a step up with respect to-
-: They're a specialized agency with expertise in this area.
-: Yes, but they don't have expertise
in interpreting the operation and the beginning
and end dates of governor's orders.
-: It's the interpretation of the words of the statute
which we're looking at.
We don't owe them deference as to the interpretation
of the words of the statute, correct?
-: Well, they've only had the opportunity
to decide the words of this statute three times before,
Your Honor, actually four, but-
Gaziano: That was a question to help you out.
(justices laugh)
-: And I think Justice Wendlandt was, too,
can I follow up just on her question?
So I don't read him as not being essential
in June or whatever the later date,
but he's not different from a huge number
of other people at that point.
He's essential,
but a lot of people are at least permitted to go to work.
Is there something in that order by the governor
that says he's no longer essential?
'Cause the way those orders were done, you know,
they could just pop up again at any time.
So I thought he's remained an essential employee.
It's just many more people were now allowed to go to work.
-: Your Honor, I would state to you
that Order 37 is plain and unambiguous.
-: Tell me the sentence
that says he's no longer an essential,
what do you rely on for that?
'Cause I've read it a couple of times.
I'm not sure what you're turning to.
-: Order 37, page seven.
"COVID order number 13 is rescinded effective 12:01 AM
on June 8th, 2020," and I believe that's found
at record appendix, page 129.
-: So even though there are all kinds
of things still in place, for that order to make sense,
lots of the old restrictions are still working, right?
It's not as if this order,
you can interpret 37 without the earlier one.
They don't work together without a lot
of the first order remaining in effect, right?
'Cause you don't know who's- -: Your Honor-
-: Let me simplify the question.
Is that Order 37 self explanatory
and self executing by itself,
or do you need to keep parts of the earlier order in place
for the whole thing to make any sense?
-: The order you need to keep in mind
when you're interpreting 37 is actually order number 33.
It was not part of the original hearing record,
but order number 33 specifically stated
that it was about to supersede.
It foretold a change in the implementation
of the phasing in of openings,
and what happened in that case, (coughs)
it indicated that essential businesses, of which the 14,
there was the 14 categories,
was being folded into those categories
that were being allowed to open under phase 1,
and those essential employments designated
in the category of essential employments
were going to have to comply
with the same opening restrictions
that were being placed on those employments in phase 1.
However, the term essential workforce or employments
was completely eliminated
when order number 13 was rescinded by 37.
And what's very confusing in this case
is that we have all these governor's orders.
There's 1 through 69,
69 being the one
that finally ended the declaration of emergency,
and then we have all these dates that are inherent with,
contained, (chuckles) inherent, excuse me,
contained within all of these orders,
and lastly, we have these phases, 1, 2, 3, and 4,
and the last phase, which was not opened at the time,
included amusement halls and Six Flags
and ventures of that nature.
And what's interesting here,
there's an index A to both 13 and 237
that indicate which businesses are in which phase,
and it says specifically in Table A of 13
which ones are essential businesses.
Table A to Section 13 states specifically
what is contained in phase 1,
and it says at that point in the first line
that those businesses which were previously designated
as essential were being folded into phase 1
and subject to the requirements of reopening
that everyone else was being imposed to.
At that point, I would say to you take the word rescinded
and you take the fact that other businesses
are being allowed into the workforce.
The threat of contracting COVID was the same as it was
to any other worker at that point in time.
Wolohojian: Okay. Thank you very much.
-: Thank you very much, your Honors.
-: Okay. Attorney McKenna. -: Thank you, Your Honor.
-: Your Honor, Joe McKenna here on behalf of Mr. Jeff Stacy.
The issue in this case is really the definition
of infectious disease, and it's an expansive one.
Although we have cases that deal with TB
or are in medical sections,
there's no restriction in terms of the language.
In fact, the language is broad.
They don't talk about particular jobs.
They talk about the nature of employment.
Gaziano: Any legislative history, Mr. McKenna?
-: I am not aware of it, your Honor,
but they talk about the nature of employment,
which is expansive.
They talk about what's inherent in the employment.
So it allows for a multitude of applications,
and as Perrone's case tells us,
it's up for the trier of fact to determine
whether the infectious disease was-
-: Well, the traditional ones, though, are,
okay, you work at a dry cleaner
and you're exposed to all those chemicals
and increases your chances of getting cancer,
or you're a doctor or a nurse,
and, you know, you're exposed to, you know,
terrible diseases like Ebola or whatever.
This is sort of a in-between category, right?
-: Well, I think it's a- -: And it doesn't cover
if you get the flu at work, or right?
If he got you sick today, that wouldn't cover that, right?
It has to be something different, right?
-: Well it's, I think, time, place, and manner.
I mean, we have to remember this was a worldwide pandemic.
Millions of people had died.
The governor essentially shut down the Commonwealth.
-: But everyone, like if I had gotten COVID at my house,
you know, I wouldn't be covered, right?
-: No, and there's also the obligation
to prove causal relationship.
That's never gone away.
-: I think you gotta walk us through
'cause there are two very difficult issues.
Does he come within this definition
because he's an essential employee, and then secondly,
is he an essential employee when he actually gets sick?
So I try to answer those two questions if you can 'cause-
-: Certainly. -: I'm struggling
with both of those. -: Certainly.
As the beginning of the executive order,
which the judge I think leans on as proof
of where to pass out who had to work
and who perhaps was optional at some point in time,
there were certain professions that had to work
in order to sustain the health and safety of the citizens.
We needed our food delivered. We needed our lights on.
We needed our houses heated.
So those individuals were required to go out,
and unlike you or me that perhaps we can do our job
on a laptop in our house, they had to go out and,
in the words of the trial judge,
work shoulder to shoulder with each other.
They were a different category.
A line goes down, you need to mount the pole.
You need to string the lines up.
You need a bunch of guys working together.
-: But danger. -: So fast forward
to February 2021.
-: The conditions, I would argue, had not changed.
We had just seen the introduction of a vaccine
which was available to doctors, not to workers.
It wasn't until April
that the vaccine first became available to workers
and eventually by the end of May, June, we have the-
-: But what do we do with, and I'll check,
but maybe you can just confirm,
phase 1, 2, and 3 had been reopened.
-: They had, but it was a permissive reopening
as opposed to the essential workers.
They always had to go out from day one to do the job,
and we relied upon them, and what is permissive
as opposed to what is required is a different story.
You may have elected to go into the office.
These guys had no choice.
They had no choice. -: If you-
-: And that affects the nature of the employment?
I mean, I'm just trying to tie it back to the statute.
-: Yeah, it's the nature of the employment.
They had a different nature of the employment,
and they were called upon to actually work together
in the face for a virulent pandemic
-: Can I- -: in ways that other people
did not necessarily have to do.
-: It's a bit remote because the nature of the employment
that causes the infection in this case
is pretty much the ride to the job, correct?
Joseph: Well, no, it's the working with the guys as well.
I mean, it so happened -: They're working-
-: that on the ride to a job to get tested
after it had started going through the workers,
the coworker turned to Mr. Stacy and said,
"Geez, I haven't been feeling well for a couple of days.
Maybe I should ride alone," and he aptly said,
"Well, I think it's too late now," and it was.
What's not on the record is the boss told the coworker
to come into work on Monday even though he
wasn't feeling well 'cause guys were dropping like flies.
-: I'm just trying to get the nature of the employment
and how that's inherent,
and it's obviously easier
with a medical professional versus-
-: Well, I'll give you another example.
HVAC, you don't assume that's an inherent risk for COVID,
but what if you're tasked
with making hospital rooms negative pressure rooms
and there are COVID patients in them,
and boom, you contract COVID?
I think you have to consider the time, place, and manner,
and that case actually existed.
The fellow got very sick.
He was in Mass General for two extended times.
Thankfully, he got better,
but the whole nature of work changed.
-: The whole nature -: Can I ask-
-: of employment changed. -: Can I ask a followup
on Justice Wendlandt's question?
Say, okay, we're in phase 2, 3, and 5 or whatever.
2, 3, and 4 have to go back to work.
It's permissive, you say,
but your boss says you gotta come to work.
Are all those people eligible for workers' comp
because they were required to come
to work by their employer?
-: Well, there were also distancing requirements
and everything else, so I don't know
that they would necessarily fall into the same category,
and the law says it's up to the trier of fact
to determine whether the nature
of the employment caused an inherent risk,
and I think in this situation,
you have the trier of effect doing that
and the reviewing board agreeing with the analysis.
-: I have a hypothetical for you. It is the following.
So COVID was circulating pretty freely
before even the initial declaration of a state of emergency.
We had the Biogen conference, for example.
If your client had contracted COVID on the same facts,
in other words, it's undisputed, he got it at work
before the state of emergency was declared,
how would your argument work in terms of saying
that that risk or hazard was inherent
in the nature of his employment?
-: What I would say is it always comes back
to the law and the particular facts.
The declaration and the end of COVID are goalposts.
They allow for an easy beginning-
-: So your client would be out in the cold
in terms of coverage if the infection had occurred
on the same factual circumstances before-
Joseph: Your Honor, not necessarily so.
-: Well, I'm trying to find that out.
So if it had happened before the declaration of emergency
so that before that he was designated
as working in an essential service,
how would his contracting COVID during that period,
even if it was undisputed,
that it occurred at work from one of his coworkers,
how would that be inherent in the nature of his employment?
-: It would have to take a pretty extraordinary set of facts.
-: Okay, so as I understand it,
'cause I'm just trying to get to the nub
of where your argument lies,
is it all turns on the status
of the various governor's orders.
-: Governor's orders are instructive.
They gave the judge an easy way
to categorize this guy being an essential worker
that he needed to go out when,
candidly, most of us were at home.
He had to go out.
He had to work side by side with other fellows
to keep the Commonwealth safe.
-: Sure, I understand.
I'm just trying to always tie it back
to statutory interpretation.
So I think what your argument is, but please correct me,
is that by virtue of the designation
of an essential service,
the governor was also essentially as a matter of law saying
that the risk of contracting an infectious disease
was inherent in that person's employment.
-: Yes.
Those are the people that had
to go out in the face of the pandemic,
so their work was by its nature going outside
and being with one another inherently dangerous,
and that was limited to a subset of people.
-: It becomes dependent upon the reopening because, you know,
many of these orders say things like in the preamble,
the risk of contagion has dropped a lot.
So are we supposed to take all of the stuff
that's in the various executive orders
and import that into the definition
of inherent in the employment for purposes of the statute?
-: No, your Honor.
I think that at the beginning,
there was a designation of who we needed to go out
and keep us safe, doctors, medical staff, et cetera.
That never changed throughout the pandemic.
There was no no executive order that says,
"Oh, you know, you can go home and work remotely,"
and, of course, certain jobs can't be done remotely,
and people have to put themselves at risk,
and we elevated those workers, and they did their job.
The grocery store workers making 10, $15 an hour,
they risk infection and death.
So did the utility workers and other workers.
So I'm saying in the space of a worldwide pandemic,
in an extraordinarily virulent situation
where these guys lacked a lot of the proper PPEs
that were lost to get infections along with the rest of us
that we should at least acknowledge during this timeframe
that the nature of their job, being out in public,
working with each other, exposed them to an inherent risk
that was not part of the population at large.
-: Well, if he- -: Candidly, they kept us safe.
-: I appreciate all of that, but it needs to be tied
to the language of the statute, correct?
If it was after the state of emergency had terminated
and there were no such things as the phases anymore,
it's just back to normal,
and a lineman in similar circumstances got COVID
from a coworker, I take it you would agree
that that person would not fall within the definition
of personal injury for purposes
of the workers' compensation statute.
-: Most likely not. -: And right.
And just to go back to my hypothetical, your position,
I take it, would be the same if it
was before the initial declaration of state of emergency.
-: Your Honor, I find myself hard pressed to admit
that someone that got COVID one day
before the state of emergency would be discounted,
but there is a certain logic in the start
and finish line locked out by the governor, so perhaps-
-: It seems to me the only logic you have
because you're depending upon those orders
to give meaning to the definition of personal injury
'cause if there had never been any executive orders,
could you point to anything in his work as a lineman
that would have said that the nature of the employment
is such that the hazard is inherent in that work?
Joseph: Not in the job itself,
but I would remind the court that the judge-
-: If your client is not covered
by this workers' compensation insurance,
what recourse does he have?
-: Social security disability.
Wendlandt: Okay, thank you.
-: Can I ask one other question?
So your brother argues the last sentence of Order 37,
COVID-19 order number 13 is rescinded,
and then I think he cross references the fact that,
earlier in this order, I issued COVID Order 19,
which designated certain COVID-19 essential services.
So he says, "Okay, I read that,"
meaning the essential service designation goes away.
I'm not sure that's right, but I look at the next clause.
"Whereas on March 30th, I issued COVID-19 Orders 21, 30,
and 32, which extended the period
which COVID order number 13 would continue
that do not provide essential services."
We don't have 21, 30, and 32 in our record.
Do they provide for essentials?
Do they classify your client
as an essential service in those two?
-: Your Honor, I'm not aware that they even address it,
and my understanding as the orders as they went forward
were more directed as a reviewing board pointed out
in its decision to a gradual allowance
of other brick and mortar facilities
to open under very rigid circumstances.
I don't think there was any express order saying,
"You folks are no longer essential.
We no longer need you,"
and the reality is we very much did need them
and very much rely upon them during this time.
And again, I think it's up for the finder of fact
to determine whether this gentleman
faced an inherent risk of infection.
Yes, he hung his hat on the executive orders,
and I think that provides quite good bit of cover,
but he actually independently said he had
to work facing a virulent risk of infection,
and he made the findings that he fulfilled the definition.
So at a bare minimum,
I don't think there's enough to disturb his findings,
but obviously, I would hope that the court
would extend coverage to similarly situated individuals,
and again, we're talking a fairly limited timeframe,
you know, unless we face another global pandemic,
but, you know, at the least,
I would ask that you look out for those
who looked out for us.