COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges AtLee and Friedman

Argued at Fredericksburg, Virginia

BRENDA LEE TAYLOR, 

 ADMINISTRATOR OF THE ESTATE 

 OF RICKY EL TAYLOR, DECEASED

MEMORANDUM OPINION* BY

v. Record No. 1042-22-4 JUDGE FRANK K. FRIEDMAN

AUGUST 8, 2023

DAVID POSEY, ET Al.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Michael F. Devine, Judge

Alan Shachter for appellant.

John H. Carstens (Jordan Coyne LLP, on brief), for appellees.

In this appeal, we are asked to review the applicability of Virginia’s Workers’ 

Compensation Act to a claim that an employer’s negligence in operating a retail grocery store 

resulted in a vulnerable employee being exposed to the COVID-19 virus at work and ultimately 

succumbing to it. 

Appellant, Brenda Lee Taylor, as the administrator of the estate of her husband

(“administrator”), filed a complaint alleging wrongful death in the Circuit Court for Fairfax 

County on behalf of the estate of her deceased husband, Ricky Taylor (“Taylor”), against his 

employer, Giant of Maryland, LLC (“Giant”) and David Posey, the store manager where Taylor 

worked. She alleged that her husband served as a grocery manager and that he contracted a fatal 

case of COVID-19 while working at Giant. In response, the defendants filed a plea in bar 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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arguing that the circuit court lacked subject matter jurisdiction over the case because, under Code 

§ 65.2-307, the administrator’s exclusive remedy was governed by the Workers’ Compensation

Act. The circuit court agreed with the employer and held that the claims fell within the exclusive 

purview of workers’ compensation. Accordingly, the court sustained the employer’s plea in bar 

and dismissed the complaint.

BACKGROUND

In March, 2020, the Governor deemed retail grocery stores to be essential businesses, 

allowing them to continue to operate despite the COVID-19 pandemic that was expanding across 

the Commonwealth. Exec. Ord. No. 53 (Mar. 23, 2020). Accordingly, as a retail grocery store 

worker, Taylor continued to perform his duties at Giant; in April, 2020 he was stricken with 

COVID-19. The following month he died from complications arising from the disease. 

The administrator filed a complaint against Giant and its employee, Posey, for wrongful 

death1; the complaint alleges that Taylor was employed by Giant as a grocery manager and due 

to underlying medical conditions, he was “highly vulnerable to catching COVID-19.” It further 

alleges that Giant failed to provide Taylor with a mask and permitted customers to “wander 

through the store without masks and failed to provide or enforce social distancing.” Taylor, in 

fact, was “reprimanded” for directing customers to wear masks and comply with social 

distancing. The complaint states that Taylor’s “doctor instructed him to wear a mask at work” 

due to his vulnerability; “[w]hen he did so, [Giant] ordered him to remove it.” Moreover, 

“[a]fter producing a doctor’s note recommending . . . Taylor wear a mask, [Giant] told him he 

could only wear the mask in a back room or be transferred.” The complaint further asserts that 

Giant failed to properly sanitize the store and failed to monitor employees for exposure to 

COVID-19. The complaint alleges that Taylor quarantined at home when he was not working 

1 Posey and Giant will be referred to collectively as “Giant” or “the employer.”
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and that he contracted COVID-19 at his workplace, was hospitalized, and died from septic 

shock, acute respiratory distress syndrome, and COVID-19 on May 24, 2020.

Giant filed a plea in bar arguing that the circuit court lacked subject matter jurisdiction 

over the case because, under Code § 65.2-307, the administrator’s exclusive remedy was 

governed by the Workers’ Compensation Act. No evidence was introduced in support of the 

plea; Giant’s plea instead asserted that the allegations in the complaint itself established the 

workers’ compensation bar. The circuit court sustained the plea in bar and dismissed the 

complaint. This appeal followed.

STANDARD OF REVIEW

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s 

recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v. 

VanMarter, 279 Va. 566, 577 (2010)). “The party asserting the plea in bar bears the burden of 

proof.” Id. “[W]here no evidence is taken in support of a plea in bar, the trial court, and the 

appellate court upon review, consider solely the pleadings in resolving the issue presented. In 

doing so, the facts stated in the plaintiff’s [complaint] are deemed true.” Id. (quoting Lostrangio 

v. Laingford, 261 Va. 495, 497 (2001)). “This approach results in functionally de novo review of 

the trial court’s judgment.” Id.

ANALYSIS

The Exclusivity Provision of the Workers’ Compensation Act

The Workers’ Compensation Act provides, in pertinent part, that the “rights and 

remedies” within it “granted to an employee when his employer and he have accepted the 

provisions of this title respectively to pay and accept compensation on account of injury or death 

by accident shall exclude all other rights and remedies of such employee” or “his personal 

representative . . . on account of . . . injury . . . or death.” Code § 65.2-307(A). Thus, the Act 
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provides the sole remedy against employers for employees injured within its scope. As the 

Supreme Court explained in Lopez v. Intercept Youth Services, Inc., 300 Va. 190, 196 (2021), the 

Workers’ Compensation Act involves a legislative balancing of conflicting interests. The Act

“reflects a legislative ‘quid pro quo’ that gave workers the right to 

assert no-fault liability against their employers (a right that they 

had never possessed) and took from them the right to sue their 

employers in tort for negligence (a right that they had possessed 

under the common law).” Jeffreys v. Uninsured Emp.’s Fund, 297 

Va. 82, 93 (2019); see also Butler v. Southern States Coop., Inc., 

270 Va. 459, 465 (2005). To be effective, the Act must be 

interpreted to maintain that delicate balance of competing policies 

implicit in this “societal exchange,” Roller v. Basic Constr. Co., 

238 Va. 321, 327 (1989). “A view of the Act’s coverage that is too 

broad would authorize an award of compensation benefits but 

would bar a tort recovery, and a view that is too narrow would 

authorize a tort recovery but would bar an award of compensation 

benefits.” Jeffreys, 297 Va. at 93.

Lopez, 300 Va. at 196. To the extent a worker is entitled to coverage under the Act, workers’ 

compensation provides the exclusive remedy for the employee against the employer and the 

worker is foreclosed from suing his employer in tort. See Hilton v. Martin, 275 Va. 176, 180 

(2008).

The question in this case is whether Taylor’s death falls within the scope of the Act and 

thereby forecloses the administrator’s wrongful death action. See Gibbs v. Newport News 

Shipbuilding and Drydock Co., 284 Va. 677, 683 (2012) (“Lacking any remedy under the Act” 

the “estate is unaffected by” the “exclusivity bar.”). Determination of whether a tort claim is 

encompassed by the Act requires analysis of whether the allegations meet the requirements of a 

workers’ compensation claim as set forth in Code § 65.2-307(A).2 “To the extent that an 

2

See Lopez, 300 Va. at 200 (analyzing whether the employee’s murder arose out of her 

employment to decide whether the negligence claim was preempted by the Act); Middlekauff v. 

Allstate Ins. Co., 247 Va. 150, 152 (1994) (considering whether the employee’s claim for 

emotional distress met the statute’s definition of “injury by accident” in deciding that the action 

was not barred by the Act). 
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employee’s injury does not meet the statutory tests for coverage under the Act, the employee’s 

common-law remedies are preserved unimpaired.” Hilton, 275 Va. at 180; see Giordano v. 

McBar Indus., Inc., 284 Va. 259, 264 (2012).

Whether an employee’s injury falls within the purview of the Act is a different question 

than whether the claim is compensable under the Act. Giordano, 284 Va. at 264. In other 

words, courts analyzing this question are not asked to determine whether the injury actually 

merits a workers’ compensation award, but instead must consider whether the facts, as alleged,

would demonstrate a legitimate workers’ compensation claim (for “injury,” “occupational 

disease,” or compensable ordinary disease of life as those terms are defined by the Act)—such 

that the exclusivity bar would apply. See, e.g., Lopez, 300 Va. at 199-200.

Relevant Factors in Analyzing Whether the Claims Raised in the Administrator’s 

Complaint Fall Within the Purview of the Workers’ Compensation Act

Under definitions set out in the Workers’ Compensation Act, Code § 65.2-101, “[i]njury” 

means “only injury by accident arising out of and in the course of the employment or 

occupational disease.” This appeal focuses on whether Taylor suffered a disease that should be 

treated as a covered illness under the Act. The term “occupational disease” typically “means a 

disease arising out of and in the course of employment” but does not include an “ordinary 

disease of life to which the general public is exposed outside of the employment.” Code 

§§ 65.2-400(A), 3-401. The administrator contends that COVID-19 is an ordinary disease of 

3 Code § 65.2-400 defines “Occupational disease” as follows:

A. As used in this title, unless the context clearly indicates 

otherwise, the term “occupational disease” means a disease arising 

out of and in the course of employment, but not an ordinary 

disease of life to which the general public is exposed outside of the 

employment.
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life—and nothing in her pleadings suggests that Taylor contracted an “occupational disease.” 

Nonetheless, even an “ordinary disease of life” can be treated as a covered “occupational 

disease” under the Act in appropriate circumstances.4 For example, asthma might not generally 

B. A disease shall be deemed to arise out of the employment only 

if there is apparent to the rational mind, upon consideration of all 

the circumstances:

1. A direct causal connection between the conditions under which 

work is performed and the occupational disease;

2. It can be seen to have followed as a natural incident of the work 

as a result of the exposure occasioned by the nature of the 

employment;

3. It can be fairly traced to the employment as the proximate 

cause;

4. It is neither a disease to which an employee may have had 

substantial exposure outside of the employment, nor any condition 

of the neck, back or spinal column;

5. It is incidental to the character of the business and not 

independent of the relation of employer and employee; and

6. It had its origin in a risk connected with the employment and 

flowed from that source as a natural consequence, though it need 

not have been foreseen or expected before its contraction.

C. Hearing loss and the condition of carpal tunnel syndrome are 

not occupational diseases but are ordinary diseases of life as 

defined in § 65.2-401.

4 Code § 65.2-401 sets out when an “ordinary disease of life” can receive coverage under 

the Act:

An ordinary disease of life to which the general public is exposed 

outside of the employment may be treated as an occupational 

disease for purposes of this title if each of the following elements 

is established by clear and convincing evidence, (not a mere 

probability):

1. That the disease exists and arose out of and in the course of 

employment as provided in § 65.2-400 with respect to occupational 
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be considered an occupational disease; however, if a worker is subjected to a release of noxious 

fumes which triggers an asthma attack, the injury could be covered by workers’ compensation. 

Joy v. Arlington (County of) Sch. Bd., VWC No. 211-98-10 (Va. Workers’ Comp. Comm’n Dec. 

29, 2004); see also Island Creek Coal Co. v. Breeding, 6 Va. App. 1 (1988) (finding mine 

worker’s hearing loss to be a compensable ordinary disease of life).

Under Code § 65.2-401, for an ordinary disease of life to qualify as a compensable 

disease, the disease must have arisen “out of and in the course of employment” and, in addition, 

it must “follow[] as an incident of occupational disease,” be an “infectious or contagious disease 

contracted” through employment in health care or as emergency rescue personnel, or be 

“characteristic of the employment and . . . caused by conditions peculiar to such employment.” 

Code § 65.2-401(1), (2). Here, the administrator argues that her claims related to COVID-19 do 

not fit within any of these factors listed in Code § 65.2-401. 

Giant’s argument below, and on appeal, was tied principally to the General Assembly’s 

2021 amendment of Code § 65.2-402.1 which stated that health care workers, firefighters, law 

enforcement officers, and correctional officers would be entitled to a presumption that their 

diseases and did not result from causes outside of the employment, 

and

2. That one of the following exists:

a. It follows as an incident of occupational disease as defined in 

this title; or

b. It is an infectious or contagious disease contracted in the course 

of one’s employment in a hospital or sanitarium or laboratory or 

nursing home as defined in § 32.1-123, or while otherwise engaged 

in the direct delivery of health care, or in the course of 

employment as emergency rescue personnel and those volunteer 

emergency rescue personnel referred to in § 65.2-101; or

c. It is characteristic of the employment and was caused by 

conditions peculiar to such employment.
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COVID-19 illnesses were occupational diseases suffered in the line of duty. Giant did not argue 

that Taylor’s illness somehow fit within the statutory parameters of an occupational disease; 

instead, Giant contended that it would be illogical for some COVID-19 cases to be covered by 

workers’ compensation, while others were not.5 Giant argued that, based on the presumption in 

Code § 65.2-402.1, all work-related COVID-19 cases properly fall under the workers’ 

compensation bar. Giant also reasoned that because any ordinary disease of life can be a covered 

disease under Code § 65.2-401, the administrator’s recognition that COVID-19 is an ordinary 

disease of life automatically triggered the Act’s exclusivity provisions.

Giant’s “all or nothing” logic with respect to coverage for COVID-19 cases is generally 

inconsistent with Virginia workers’ compensation analysis and is particularly unavailing in light 

of Lopez, 300 Va. at 200, and Middlekauff, 247 Va. at 152. In both cases, the Supreme Court 

considered the applicability of the exclusivity provision by undertaking a fact-specific analysis. 

In Lopez, the Supreme Court of Virginia analyzed whether the employee’s murder arose out of 

her employment. While being murdered on the job could be wholly unrelated to the 

employment, in Lopez, where the employee-victim was a youth counselor at a residential home 

working with violent clients with behavioral issues, her death was found to arise out of her 

employment and was covered under the Act. Lopez, 300 Va. at 200. In Middlekauff, the Court 

5 The Act, as amended by the General Assembly, provides that COVID-19 is 

presumptively an occupational disease for health care workers and law enforcement officers, but 

the employee here does not fall into these categories. Code § 65.2-402.1(B); 2021 Va. Acts

Spec. Sess. I chs. 507, 526, 547. Like health care workers and first responders, the Governor of 

Virginia deemed retail grocery stores to be essential businesses allowed to continue to operate 

throughout the early stages of the pandemic. See, e.g., Exec. Ord. No. 53 (Mar. 23, 2020). 

Again, however, the legislature chose not to extend the presumption afforded to health care 

workers and first responders in Code § 65.2-402.1(B) to retail grocery store employees. See,

e.g., Advisory Op. Va. Att’y Gen. to Hon. Ken Stolle, Sheriff City of Va. Beach (May 22, 2020) 

(the COVID-19 amendment to the Act reflects the legislature’s intent to extend a presumption 

benefiting firefighters, as a limited class of occupations, where the nature of their duties places 

them at far greater risk of contracting COVID-19 than the general public).
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considered whether the employee’s claim for intentional infliction of emotional distress from 

harassment met the statute’s definition of “injury by accident.” Here, again, the Court did not 

make an “all or nothing” evaluation that all emotional distress claims are covered by the Act (or 

left uncovered). Instead, the Court conducted an analysis of the complaint, parsing out whether 

the specific harm alleged constituted an “injury by accident” as contemplated by the Act. 

Middlekauff, 247 Va. at 153 (“she alleges a ‘pattern of abusive behavior,’ continuing over an 

extended period of time”; this cannot be construed as an “injury by accident”). See also Snead v. 

Harbaugh, 241 Va. 524, 527-29 (1991) (with respect to a defamation claim, finding pleadings 

sought only damages for loss of reputation—not for emotional damage; injury to reputation is 

not injury to the person and is not covered by the exclusivity bar). 

In both Lopez and Middlekauff, the Court considered the particular facts alleged in the 

pleadings at length to reach its conclusion. It did not categorically hold that the exclusivity 

provision universally applied to all on-the-job murders or claims of emotional distress; it made a 

fact-specific analysis.6 In short, the case law does not support the employer’s categorical 

approach to COVID-19 and, instead, instructs courts to undertake a fact-specific analysis of the 

complaint to determine whether the exclusivity provision should apply. While we reject the 

notion that all COVID-19 claims fall within the reach of the workers’ compensation bar, this 

does not end the inquiry here. 

6 Lopez offers an instructive discussion on the question of whether on-the-job assaults are 

covered by the Workers’ Compensation Act. Lopez observes that in cases where the assault did 

not arise out of the employment, coverage was denied. See Hill City Trucking, Inc. v. Christian, 

238 Va. 735 (1989) (incident not covered where longhaul trucker is randomly robbed); Baggett 

Transp. Co. of Birmingham v. Dillon, 219 Va. 633, 638 (1978) (random violence from unknown 

assailant not work related). Yet in Plummer v. Landmark Communications, Inc., 235 Va. 78 

(1988), an assault on an employee was covered where a newspaper carrier was sent to a deserted, 

dimly lit area at 2:00 a.m. to pick up newspapers where she was attacked. Again, the fact 

specific nature of the coverage analysis is a consistent theme.
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Applicability of the Workers’ Compensation Bar to this Record

The Court is left to decide whether the complaint alleges facts that would support a 

finding that Taylor’s condition qualified as a covered disease under Code § 65.2-401. Again, an 

“ordinary disease of life” arising out of the employment can constitute a covered disease for 

purposes of the Act only if it meets one of three criteria under Code § 65.2-401(2): first, if the 

disease “follows as an incident of occupational disease”; second, if it is an “infectious or 

contagious disease contracted” through employment in health care or as emergency rescue 

personnel; or, third, if it is “characteristic of the employment and . . . caused by conditions 

peculiar to such employment.” See Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 687 (1989) 

(claimant meets the test where his disease was the result of industrial noise which was a 

distinctive feature of his work environment).

Here, we conclude based on the pleadings that the facts, as alleged, do make out a claim 

that would support a legitimate workers’ compensation recovery such that the exclusivity bar 

does apply. We reach this conclusion based on the third prong of Code § 65.2-401(2). The 

language of this section requiring the disease to be “characteristic of the employment” and 

“caused by conditions peculiar to such employment” has been construed somewhat broadly. In 

Musick, this Court specifically rejected the employer’s suggestion that this language was meant 

to foreclose recoveries for ordinary diseases except in the most egregious circumstances. 7 

Va. App. at 686. The Court explained:

We interpret the act as providing that an employee has a 

compensable disease when he proves that his disease was, in fact, 

developed at work as a result of the usual conditions to which he 

was exposed by his employment. If the evidence shows a 

recognizable link between the disease and some distinctive feature 

of the claimant’s job or work environment, we believe, if other 

qualifications are met, the legislature intended recovery. 

Accordingly, we define the phrase “peculiar to the employment” to 

mean unique to the conditions in which the claimant actually 

worked, not the normal working conditions to which other workers 
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in the same occupation, or other workers in the same industry, 

were exposed.

Id. at 687. The facts alleged here are that “[a]fter the outbreak of the COVID-19 pandemic, 

Mr. Taylor remained quarantined at home with his wife, except for when he was at work at 

Giant.” The complaint asserts that, as a condition of employment, Taylor was surrounded by 

unmasked customers and co-workers who were not socially distancing. He was prohibited from 

wearing a mask as he encountered these customers and co-workers as part of his job. He was, in 

fact, reprimanded for suggesting to customers that they wear masks and observe social distancing 

protocols. Even after he provided a doctor’s note supporting his need to wear a mask when 

dealing with the public, Giant balked. Taylor was not only left to work in these perilous 

conditions, but he was actively prevented from taking action himself to reduce the risk.

Ultimately, at the core of the administrator’s complaint she alleges that, based on Giant’s 

actions, Taylor was left unmasked and unprotected in a closed space where he was forced to be 

in contact with a steady stream of infected people who were, themselves, unmasked and failing 

to observe social distancing. In our view this does present a “recognizable link” between the 

disease and the claimant’s work environment. Musick, 7 Va. App. at 687; see also Fairfax Cnty.

v. Espinola, 11 Va. App. 126 (1990) (exposure to hepatitis); Mottram v. Fairfax Cnty. Fire and 

Rescue Dept., 263 Va. 365, 375 (2002) (first responder’s PTSD is an occupational disease under 

the facts established).

Moreover, Giant allegedly subjected Taylor to these conditions despite his doctor’s note 

and knowledge of his vulnerabilities. As the Supreme Court observed in Lopez, “[a]n 

employer’s refusal to protect employees from a known, dangerous condition on the premises can 

also create a peculiar risk under some circumstances.” 300 Va. at 198 (citing Plummer v. 

Landmark Commc’ns, Inc., 235 Va. 78, 86-88 (1988); Lynchburg Steam Bakery, Inc. v. Garrett, 

161 Va. 517, 519-23 (1933)).
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The case before us involves a long list of workplace conditions that, taken as true, were 

alleged to be the direct cause of Taylor’s illness and death. His illness can be seen, if the 

administrator’s allegations are proved, to have followed as a natural incident of his work as a 

result of the exposure occasioned by his work conditions. Accordingly, we agree with the circuit 

court that the exclusivity bar of the Workers’ Compensation Act applies to this claim. Thus, the 

circuit court properly dismissed the administrator’s complaint.

CONCLUSION

The specific facts alleged in the complaint here support a finding that Taylor’s 

COVID-19 was a covered disease under Code § 65.2-401(2). Analysis of the administrator’s 

claims in this case compels application of the Act’s exclusivity provision and dismissal of the 

wrongful death claim. The circuit court’s ruling granting Giant’s plea in bar and dismissing the 

action is affirmed.

Affirmed.