The Berlin-Brandenburg State Social Court has ruled that a supermarket saleswoman’s Covid-19 infection will not be recognized as an accident at work due to a lack of evidence of infection at work. No specific “index person” could be identified, and an increased occupational risk of infection is not sufficient.
In its decision, the 3rd Senate of the Berlin-Brandenburg State Social Court dealt with the question of whether a salesperson in a supermarket is covered by accident insurance if she is found to be infected with the Covid 19 virus.
Cashier in supermarket becomes infected with corona virus
In the autumn of 2020, the plaintiff, who was 58 years old at the time, worked as a salesperson in a Berlin branch of a national supermarket chain. There, she filled the shelves and worked at the checkout, among other things. On October 20, 2020, a PCR test carried out on her showed a positive result for the Covid-19 virus. In December 2021, the treating family doctor informed the responsible professional association that the plaintiff had been permanently unable to work since March 2021 due to long Covid syndrome. The salesperson herself stated that her social contacts at the time were almost exclusively limited to her workplace, so she assumed that she had contracted the infection there. Some customers did not wear a mouth-nose mask and the safety distance of 1.5 meters was often not observed.
BG rejects Corona as an occupational accident
The trade association refused to recognize the infection with the Covid-19 virus as an accident at work and to pay for the plaintiff’s medical treatment and compensation. The seller did not name a specific person (“index person”) to whom the infection could be traced. Infection in an uninsured, private environment cannot be ruled out from a realistic perspective.
LSG: Protection of statutory accident insurance only upon proof
The action brought against this before the Berlin Social Court was unsuccessful. In response to the appeal filed by the plaintiff, the 3rd Senate of the State Social Court confirmed the decision of the Social Court in its decision of July 22, 2024. It stated that the event in October 2020 did not constitute an accident at work. An infection with the Covid-19 virus could in principle be considered an accident. The penetration of a pathogen into the body and the subsequent symptoms constitute a suitable event or a suitable health damage. However, the necessary Full proofthat the transmission of the virus actually occurred in the supermarket. It is true that intensive contact with an infectious person (“index person”) during work does not necessarily have to have taken place for proof. However, it is also not enough that the risk at work was higher than in the private sphere simply because of the larger number of contacts. In any case, according to the plaintiff’s own statements and her employer, as well as the court’s investigations, no customer or colleague could be found with whom the plaintiff had been in contact during the possible period of infection and in whom the Covid-19 virus could have been detected. Complete isolation of the salesperson in the private sphere cannot be assumed from a realistic perspective. In view of the pandemic spread, it is ultimately not possible to clarify where the salesperson became infected with the virus.
Increased risk of infection at work
The seller’s reference to increased infection risks in her job is also not suitable for proving a specific infection. Such a generally increased risk – as opposed to a specifically proven infection – would at best be suitable for establishing an occupational disease (which is not in dispute here).
The decision is not final. The plaintiff can apply to the Federal Social Court for leave to appeal.
The written reasons for the decision are already available. They will be published as an appendix to this press release on the State Social Court’s website.
Notice: LSG Berlin-Brandenburg, decision of 22 July 2024, L 3 U 114/23
You might also be interested in:
When is a corona infection a reportable work accident?
Accident during a driving instructor’s reconnaissance trip is considered an occupational accident
LSG Berlin-Brandenburg
