Covid-19 Pandemic Raises Compensability Questions for Employers
MARCH 2020: The pandemic of Covid-19 coronavirus has the workers’ compensation community asking how one determines compensability of a virus with a source of infection that could literally be anywhere and everywhere.
Employers, carriers, and administrators are finding themselves in a unique position as public health officials rush to identify cases, quarantine and test people who are exposed to the virus, and treat sick patients. This raises once-in-a-lifetime questions for workers’ compensation defendants, with a situation so rare that there is not very much case law on the books for this type of large-scale infectious disease.
So how does one determine compensability for a situation where employees come down with the Covid-19 coronavirus?
First of all, whether the infection constitutes an injury arising out of the employment must first be addressed. In infectious disease cases, the disease must be contracted in the course of employment to be compensable, and the burden of proof rests on the employee.
The rule for infectious diseases is somewhat narrower than the standard “zone of danger” for typical injuries. The fact that an employee contracts a disease while employed will not establish a causal connection. In other words, the mere fact alone that the injury occurred while the employee was in the employer’s service is not sufficient. (Pacific Employers v. IAC (1942) 19 Cal.2d 622). This narrower rule arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial or other pathological organisms. (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 63 Cal.Comp.Cases 253).
The ultimate determination is likely to be very factually-driven. An injured worker would need to show increased risk of exposure due to the employment which would then shift the burden of proof to the employer to show some source of non-industrial exposure.
Identifying a nonindustrial source of the virus could turn on the facts unique to your geographical location. For instance, a Texas patient who was prematurely released from quarantine went to a local shopping mall on a Saturday from 5:30 to 7:30 p.m. If fellow shoppers – who were not at the mall for work – came down with the virus, that should bar them from contending that their non-mall employers caused their infections.
In the coming days and months, it will be important for employers, carriers, and administrators to pay attention to and track region-specific reports like this. In other words, keep an eye on what’s going on in your backyard – if you see reports specific to local geographic locations like airports or malls – bookmark or save PDFs of those articles so you can easily access them later.
For example, other potential sources could be polling stations, schools, stadiums, etc. Paying attention to social media feeds could be worthwhile as well.
APPLICANT’S BURDEN OF PROOF
When faced with the burden of proof, most applicants’ attorneys will likely argue that in the absence of any other causes – such as our mall example – that it must be work- related. While this argument would improperly shift the burden of proving a negative to the defendant, this argument was followed in the case of City of Turlock v. WCAB (2007) 72 CCC 931, where the Court of Appeal held that there was substantial evidence to support a finding that it was reasonably probable that the city’s sewage worker’s contraction of hepatitis C was work-related. There was physician’s testimony that the worker likely contracted hepatitis C while working in sewers, although no specific source of the disease was pinpointed. The worker had no other non-industrial factors that would account for his infection. Simply because his work put him at increased risk for exposure the court ruled that it was reasonably probably that the infection was work-related.
HEALTH CARE WORKERS
This gives rise to the question about whether health care worker cases are deemed compensable. For these cases, it’s important to note that health care workers already follow very stringent protocol to avoid spreading the disease.
Therefore, the factual investigation should focus on whether there were protocols to avoid infection, and whether there were lapses in those protocols. If there are no lapses in protocols to avoid infection, then the defense against those claims becomes stronger.
The California Labor Code, with one exception, does not provide any statutory presumptions of compensability to health care workers regardless of the type of injury.
The one exception is found Labor Code section 3208.05 which provides a presumption of injury for health care workers due to preventative care. This presumption of compensability may be triggered if a health care worker suffers an injury while undergoing care to prevent the development or manifestation of any blood-borne disease, illness, syndrome or condition recognized as occupationally incurred by Cal- OSHA, the federal CDC or other appropriate governmental entities.
This presumption specifically includes preventative care for, among other things, hepatitis and HIV. Arguably it would also apply to injuries that arise from preventative care for wide-spread contagions during an epidemic. With regard to cheek swabbing in order to test for infection of Covid-19, we do not believe that this in and of itself would trigger obligations under the workers’ compensation policy absent a secondary injury or infection that arises as a result of the cheek swabbing itself.
For those who are exposed at work and wind up being quarantined, the question arises about whether the quarantine itself gives rise to workers’ compensation benefits, such as temporary disability benefits. Please recall that just because someone is quarantined, that does not mean they are infected.
There does not appear to be case law directly on point with quarantine situations being used as a preventative tool. However, that may support employers’ position that a quarantine does not warrant TD benefits.
The primary focus in this inquiry is whether there is evidence of an injury, something requiring more than just first aid. If quarantine is done solely as a preventative measure and there are no active signs of infection at the outset, then quarantine is merely a public health action and as such it would not rise to the level of injury, absent something more. In that situation, there would be minimal likelihood of prevailing on a claim of entitlement to temporary disability benefits.
Please note that if the employees are members of a union, we recommend double-checking whether the union contract speaks to such situations entitling them to wage replacement.
All in all, we recommend using caution before determining whether to accept or deny infectious disease cases during these troubling times. Take a close look at the facts, and feel free to contact us if you have any questions.
And if you’ve got sick employees, we recommend that you follow the advice of public health officials and actively encourage sick employees to stay home. You could be saving yourself months of headaches, after all.
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This article was written by Louis Larres, and John Kamin, both of whom are experienced workers’ compensation defense attorneys and partners at the Law Offices of Bradford & Barthel. If you have questions about infectious diseases in the workplace or any other workers’ compensation defense issues, please feel free to contact us at the Law Offices of Bradford & Barthel.
AB 51 Does Not Impact Workers’ Comp ADR Programs in California
OCTOBER 2019: Statement on California Assembly Bill 51 –
California Governor Gavin Newsom signed AB 51 into law. The law prevents employers from requiring employees or prospective employees to waive their rights to file lawsuits in court for violations of the California Fair Employment and Housing Act (FEHA).
FEHA is a state-level protection for employees and prospective employees against discrimination in employment or housing, and applies to all business practices including advertising, job applications and hiring processes, termination processes, working conditions including “compensation” (wages), and training practices among others.
Workers’ Compensation Alternative Dispute Resolution (WCADR) is in a different category from FEHA. It is regulated by the state and involves labor unions that negotiate with employers to put alternatives to the Workers’ Compensation court system in place.
Workers’ compensation claims are not FEHA claims. Instead, workers’ compensation involves people who were hurt at work and addresses medical treatment and disability payments, and includes adjudication of disputed issues in the context of whether someone was really injured at work and the nature and extent of disability.
The only time FEHA claims and workers’ compensation claims come into contact is if a person claims that they were discriminated against for filing a claim in violation of Labor Code 132a and they decide to pursue it in civil court as opposed to the WCAB. Sometimes a person might have a simultaneous FEHA and workers’ compensation cases, and under AB 51 the person would not be required to submit to arbitration to resolve the FEHA portion. But if there was a WCADR program in place, they would still have to use that program to address the workplace injury claim.
Before AB 51 was passed, employers could require people to sign documents that said that they would pursue FEHA claims using “alternative dispute resolution” rather than sue in court. However, some raised concerns about the fairness of such a requirement, so the legislature removed the requirement via AB 51. The term “alternative dispute resolution” relates to any kind of procedure for resolving cases outside of the formal court system.
In short, AB 51 does not disturb or disrupt WCADR programs.
Bradford & Barthel, LLP provides workers’ compensation litigation services in both traditional and alternative dispute resolution forums throughout California. We are a pioneering firm in the field of WCADR and have extensive experience in negotiating and developing ADR programs that meet the needs of labor unions and management.
Please do not hesitate to reach out to me with any questions or to discuss further. My contact details are:
Michael Peabody, Partner
Director of Alternative Dispute Resolution Services
Bradford & Barthel, LLP
18801 Ventura Blvd, Ste 200
Tarzana, CA 91356
California Workers’ Comp 2020 Temporary Total Disability Rates to Rise
SEPTEMBER 2019: The California Division of Workers’ Compensation has announced that the 2020 minimum and maximum temporary total disability rates will increase on Jan. 1, 2020.
The minimum TTD rate will increase from $187.71 to $194.91 and the maximum TTD rate will increase from $1,251.38 to $1,299.43 per week, the DWC said.
Labor Code requires the rate for TTD be increased by an amount equal to percentage increase in the State Average Weekly Wage compared to the prior year.
The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2019, the SAWW increased from $1,276 to $1,325 – an increase of 3.84013 percent, according to the DWC.
Under Labor Code, workers with a date of injury on or after Jan. 1, 2003 who are receiving life pension or permanent total disability benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW.
The DWC is part of the California Department of Industrial Relations, which in turn is housed within the Labor & Workforce Development Agency.
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Information Source: Insurance Journal
Management’s Role in Slip, Trip and Fall Prevention
APRIL 2019: Slips, trips and falls (STFs) can present challenges to managers in nearly all types of facilities and businesses, but particularly those with any type of public space, like retail establishments, hospitals, financial institutions, hospitality venues and more.
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Information Source: Zurich American Insurance Company
For additional risk insights, visit https://www.zurichna.com/en/knowledge/topics/slip-trip-and-fall-safety