Tuesday, April 21, 2020

Filing a COVID-19 Workers’ Compensation Claim

The pandemic caused by the coronavirus disease (COVID-19) is impacting almost every aspect of Californian lives, including how we live and work.  Every cough, runny nose and even headache can make a person wonder if they have contracted this virus. To make matters worse our first responders and front-line medical personnel continue to perform their essential services to our communities while most Californians are under the protection of a public health directive to shelter in place.

While the general public shelters in place, our first responders face a mounting risk of exposure to COVID-19.  This public health crisis is transforming into an ever-expanding first responder crisis as peace officers, firefighters, and medical personnel contract the virus as they perform their essential services.   Given these facts, the logical question is what will happen to our first responders if and when they contract COVID-19. Does California have a plan for them?

Workers’ Compensation
The purpose of Workers’ Compensation is to provide monetary and medical benefits to people who become injured while working in the course and scope of their job duties. Part of the workers’ compensation process is to separate work related from non-work-related claims. In the context of a disease such as COVID-19, this becomes very difficult to do in practice.

Increased Risk to Exposure
However, there is a recognizable link between the nature of a first responder’s job and an increased risk of contracting the disease. First responders typically encounter a wide variety of exposures at work, including but not limited to bodily fluids, sneezing/coughing, and the unavoidable touching of unclean surfaces. Historically, when dealing with other injuries that first responders face a greater risk of suffering than the public, our State Legislature has acted to create a presumptive injury status for certain injuries. 

Presumptive Injuries
The presumption effectively shifts the burden of establishing causation.  This means the argument switches from the employee’s burden to establish that he suffered an industrial injury to a burden upon the employer.  The employer must rebut that the injury suffered was not from industrial exposure.  For example, there are presumptions for certain first responders who suffer pneumonia, meningitis, tuberculosis, etc.

At present, there is inadequate formal guidance from the State of California as to whether any Workers’ Compensation presumptions would apply to our first responders in the event of a confirmed COVID-19 infection.  In the absence of a presumption, the burden is on the injured first responder to prove that they were at a greater risk of exposure to COVID-19 at the time they contracted the illness.

Record of Exposure
If a first responder is exposed to an individual whom is believed to have the virus the first responder should attempt to establish a record of known or suspected exposure to COVID-19 at work. This evidence may include information as to the time of the exposure, the location of the exposure, the mechanism of transmission, if known, and any other knowledge or observation of COVID-19 symptomatology present at the workplace. This information must be communicated to the employer as well.

In addition to providing information about any potential exposure to COVID-19, the injured first responder must provide medical evidence that they have actually sustained an infection. The preference is medical testing. However, in the absence of test results, there will need to be a diagnosis from a licensed physician of a suspected COVID-19 case. In addition to the diagnosis itself, relevant medical information includes any medical evidence which tends to show that COVID-19 was accelerated, aggravated, or precipitated by job duties. 

The bottom line is that establishing a causal relationship generally requires a qualified physician's opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to your employment. This opinion must be based on a complete factual and medical background. However, the ubiquity of COVID-19 presents unique challenges to the standard causation formula. How consistently can we prove the circumstance of work-related exposure to COVID-19 in an environment where the virus is known to be extremely contagious, relatively unseen, and transmitted by means we are only beginning to fully comprehend?  The fear is, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders despite their daily heroism on the front lines of this disease.

However, Mastagni Holstedt, APC is asserting that injuries caused by a COVID-19 exposure and/or infection should fall under one of the existing public safety presumptions.  The legislative intent behind the creation of a public safety presumptive injury in the California Labor Code is to offer additional protection to first responders who put their lives at risk for the public’s benefit. The risk they take while assisting the public through the COVID-19 pandemic is no different.

Creating a COVID-19 Presumption
It remains to be seen if Mastagni Holstedt will prevail in our arguments that one or more of the existing presumptions should be extended to cover injuries caused by COVID-19 because at the time the presumptions were codified COVID-19 did not exist.  However, there are separate efforts underway to create a new presumption in law.  Fire fighter and law enforcement advocates, such as the Peace Officer Research Association of California (“PORAC”) and the California Professional Fire Fighters ("CPF"), have urged California Governor Gavin Newsom and the State Legislature to create a presumptive injury for our first responders exposed to or inflected with COVID-19. These efforts are ongoing. 

The State Legislature is currently debating Assembly Bill No. 664 which seeks to define “injury” for certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators to include being exposed to or contacting a communicable disease, including COVID-19.  The proposed bill would create conclusive presumption, as specified, that the injury arose out of and in the course of employment.

The fear is, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders despite their daily heroism on the front lines of this disease.  With that said, at Mastagni Holstedt we continue to represent our first responders and will vigorously litigate on their behalf for an extension of the existing presumptive injuries.

If you or someone you know needs help with this fight please contact Mastagni, Holstedt, A.P.C. for an advocate who supports what you do for our communities and who will fight this legal battle with you.