On behalf of Hanna Brophy MacLean McAleer & Jensen LLP, we want to let our clients know that we are fully operational in the midst of COVID-19 and the unique challenges it presents to our community as employers as well as insurance carriers and their agents with responsibility for defending workers’ compensation cases for alleged COVID-19 exposure.
SUMMARY
We are taking serious precautionary measures on behalf of our team as well as our clients. Care should be taken to preserve your physical and emotional well-being as well as that of your employees and insureds. It is important to review COVID-19 claims through a fact-specific lens to determine compensability. We have detailed below effective methods for determining compensability of questionable COVID-19 claims.
HANNA BROPHY’S RESPONSE
We want you to be assured that in addition to the welfare and safety of our team internally, you, our valued clients, are at the top of our minds. We at Hanna Brophy take immense pride in our customer service-focused approach to litigation. We are here for you.
In our 75 years of providing California workers’ compensation defense, we have seen unusual times before and we have always come through them. It is one of the reasons why Hanna Brophy decided to shift to a paperless, electronic system more than 15 years ago. We anticipate little, if any, delay in our ability to continue providing excellent legal services to you, our valued clients.
As a precaution, we have all non-essential members of the Hanna Brophy team working outside the office. We have kept a team in place to allow for normal business operations. All of our attorneys and managers are accessible via email and can be located on our website at www.hannabrophy.com.
It can be reasonably anticipated the Sacramento could pass emergency legislation on the COVID-19 virus that could impact workers’ compensation issues. Attention must be paid to any Legislative changes.
WORKERS’ COMPENSATION IMPLICATIONS
Our clients are exclusively the defense community – the various responsibilities and concerns may vary between Insurance Carriers, Preferred Employer Organizations, Self-Insured Employers, and Third Party Administrators. Employment counsel should be engaged as to wage and hour concerns.
Potential workers’ compensations issues, pursuant to the California Labor Code and related case law, include injury AOE/COE, medical treatment, temporary disability, and in some cases death benefits. The issue of permanent disability will not likely be a major issue absent extraordinary facts. One evidentiary consideration is whether a med-legal expert in the field of infectious disease or internal / pulmonary will be necessary for a full and adequate determination on causation.
COVID-19 presents as a novel virus, but it is not unlike any other common contagion. Injured workers claiming workers’ compensation benefits due to COVID-19 will need to: a) test positive for the specific virus, and b) establish actual industrial exposure from a known source. Remember, any industrial injury must both arise out of and in the course of employment.
There is some very old case law concerning flu-like illness. Historically cases involving colds, flu and even pneumonia have been successfully defended absent extenuating circumstances.
AOE/COE
The basic law was established by the Supreme Court case of Marsh v. IAC (1933) 217 C 338. In that case, the court stated, “An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one of which is commonly regarded as natural to, inherent in, and incident and concomitant of the work in question.” This sounds like an absolute defense to all flu like conditions. It is not. The determination of injury AOE/COE in such situations will depend on the facts.
Special Risk & Increased Risk
In the case of Bethlehem Steel Co. v. IAC (1943) 21 CA2d the Court stated, “Where an employee contracts a contagious or infectious disorder he must in order to recover compensation, establish the fact that he was subjected to some special exposure in excess of that of the commonalty, and the absence of such showing, the illness cannot be said to have been proximately caused from an injury arising out of his employment.” Based on this holding the issue of injury AOE/COE for the COVID-19 virus is nothing more than a proximate cause issue. The injured worker will have the burden of proof. The injured worker will be required to establish that the workplace subjected the employee to some “special exposure.”
What is meant by “special exposure” is a wide open field. We know the injured worker will not be required to prove that the exposure was caused by the employment to a degree of scientific certainty, but rather merely to a degree of reasonable medical probability. In the case of Mail- Well Inc. v. WCAB (2003) 68 Cal Comp Cases 960, writ denied, the WCAB found that the applicant’s Parkinson’s disease was aggravated by his hydrocarbon exposure at work. There was no scientific evidence linking Parkinson’s disease with exposure to hydrocarbons. However, the applicant demonstrated that exposure to various components increased the risk of an aggravation of Parkinson’s disease. So in place of scientific certainty the test became one of “increased risk.”
An increased risk standard would mean that the injured worker would have to prove that the risk of contracting the COVID-19 virus was greater on the job than contracting the virus in a general public setting. Of course, this would be a factually driven termination.
A line of cases that is regularly encountered in in the southern San Joaquin Valley relate to the exposure to the coccidioidomycosis fungi spores. This is commonly referred to as “Valley Fever.” Spores can thrive in areas of the San Joaquin Valley and Arizona, which are dry and undisturbed. Wind storms can cause the spores to spread further and in greater concentration. These type of cases are won and lost on a regular basis at the Worker’s Compensation Appeals Board. If the employee can document that they had an increase in the risk of exposure due to their employment they might prevail on the issue of industrial causation. However, if the employer can prove there was no increased risk, they might prevail with respect to the issue of industrial causation.
Since it is impossible to scientifically test the air that the employee was breathing on the job at the time of the exposure, medical opinions are usually given in terms of reasonable medical probability combined with a risk of exposure. So employee who lived and worked in an endemic area and the employment did not involve any extra outside exposure may not be able to prove that Valley Fever was work related. The WCAB could apply the same standard to the COVID-19.
Employers would be well-advised to document preventative measures taken in the wake of COVID-19 at the worksite. A non-exhaustive list might include records related to which cleaning supplies have been used and the frequency of cleanings, promoting social distancing and/or remote work opportunities (documenting which employees worked remotely), and even keeping tabs on employee reports of indirect exposure emanating from outside the workplace.
TO ACCEPT, DELAY, OR DENY?
While some firms are recommending outright denial, it is always a good idea for defendants to conduct good faith discovery upon presentation of any claims by employees for benefits related to COVID-19. Each case must be understood individually before denials issue. Employers would be well-advised to permit questioning by workers’ compensation specialist to avoid violating HIPAA.
Upon receipt of a claim, initial questions might include the following:
1) Has the claimant been tested for COVID-19? Where was the test done? Are the test results in writing and available? Was testing positive for COVID-19?;
2) What symptoms is the claimant experiencing? (You might refer to the CDC site: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html);
3) Has the claimant lost time from work (remotely or otherwise); and
4) Has the claimant been in direct contact with any other employees? In the case of safety officers who might qualify for a presumption pursuant to Labor Code Section 3212 for pneumonia, care should be taken to develop medical evidence as to the source of the pneumonia. Pneumonia is a very specific diagnosis. While COVID-19 has
respiratory illness implications, it does not appear to cause pneumonia in all cases and the presumption would likely not apply absent a clear diagnosed pneumonia.
KEY RESOURCES
Hanna Brophy (www.hannabrophy.com) is making every effort to stay on top of key developments and will keep our clients up to date via Linkdin: https://www.linkedin.com/company/hanna-brophy-maclean-mcaleer-&-jensen/
For WCAB status, the DWC publishes updates via its Newsline, which can be accessed here: https://www.dir.ca.gov/dwc/dwc_newsline.html.
Details about Corona Virus (COVID-19) can be found here: https://www.cdc.gov/coronavirus/2019-ncov/.
The World Health Organization issues Situation Reports, which can be found here:
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports and MythBusters: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters.
The California EDD has published guidelines for affected employees in a variety of situations:
https://www.edd.ca.gov/about_edd/coronavirus-2019.htm.
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