The chances of contracting the Coronavirus (also called “COVID-19”) are slim, but the number of those infected is increasing daily. It is only a matter of time before a worker contracts COVID-19 through their place of employment (i.e., a doctor, emergency responder, etc.). After a worker exposed to the Coronavirus contracts the disease, there could be grounds for a valid a workers’ compensation claim for an industrial injury. The repercussions are mind-boggling.
How does a health insurer prepare for potential claims when so much about COVID-19 is still unknown, including how it is spread? The workers’ compensation claim will start in the typical fashion, with the applicant still proving the injury arose out of and occurred in the course of employment as required under L.C. § 3600. However, an applicant may be required to meet a different burden of proof like the one required when proving a Valley Fever claim. It is unclear whether the courts would follow this approach, however it would be a very good guide for them to follow.
In Valley Fever claims, industrial causation for the disease is shown by proving “the employee’s risk of contracting the disease from the employment [was] materially greater than the general public or more common at the place of employment than among the public.” Tim Abernathy v. Harris Wolf California Almonds, 2015 Cal. Wrk. Comp. P.D. Lexis 547. The court also concluded an applicant must show the employment caused or contributed to their disease to a reasonable medical probability. Id. While the Board in Time Abernathy dealt with Valley Fever specifically, the new burden of proof could directly apply to COVID-19 as both are airborne diseases workers can encounter during the course of their employment. Should the work setting expose the employee to a “materially greater” chance of contracting the airborne disease than the general public, and should the Board choose to follow this approach for Coronavirus cases, then it is highly likely the Coronavirus claim would be successful.
With the Coronavirus still not completely understood, Courts may find it differs significantly from Valley Fever. The applicant can prove how they contracted Valley Fever by following the codified approach in L.C. § 6709. (The recent code section is discussed at length in How Global Climate Change and Valley Fever Impact Workers’ Compensation). The Coronavirus is so new no one knows completely how to prevent it or how to guide employees to avoid contracting it. The National Law Review recommends “employees and employers whose work is related to coronavirus should maintain detailed records identifying potential exposures.” See Coronavirus: Factors for the Insurance Industry to Consider – Part 3 Liability and Workers’ Compensation Insurance.
The California Department of Industrial Relations (“DIR”) is making an attempt to prevent the spread of COVID-19 at this time. As of March 3, 2020, the DIR provided a guide to protect workers from exposure to the Coronavirus. See Interim Guidance for Protecting health Care Workers from Exposure to Coronavirus Disease (COVID-19). The DIR points to 8 C.C.R. § 5199 as a standard for controlling exposure to Aerosol Transmissible Diseases (ATD). This standard applies to those involved in medical practice, certain laboratories, correctional facilities, homeless shelters, drug treatment programs, public health services and police officers, and “any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD Standard.” These employees will likely be some of the first to file a workers’ compensation claim for contracting the Coronavirus due to their increased exposure chances.
While some attorneys are already monitoring for Coronavirus workers’ compensation cases, there aren’t that many in California. The Los Angeles Times reported there are 60 cases in California as of March 6, 2020. Exposure to employees with ATD training is likely to have happened at this point, but unless the person can prove where or how they contracted the disease, there isn’t going a large number of viable workers’ compensation claims at this point. Other attorneys are claiming a Coronavirus industrial injury would be similar to claiming an employee caught the flu at work. However, with the Coronavirus already effecting 100,000 people worldwide in ways highly analogous of Valley Fever, the chances of a valid claim arising in California grow daily. Health Insurance providers should monitor for what could be a number of workers’ compensation claims where costly treatment is provided on what may ultimately be considered an industrial injury.
If you should have any questions regarding this article, please contact Gary Wickert at [email protected].