By now, we have all heard of the COVID-19 virus, commonly referred to as the coronavirus. News of the virus is spreading as fast as the virus itself. Most countries around the world are tirelessly working to cure those infected and to stop the spread. The Vice President of the United States has assured the public that private insurance companies will pay for the cost of co-pays and for the test itself. California Governor Newsom has declared a state of emergency. Congress is also thinking about other extreme measures to prop-up hard-hit sectors of the economy.
Some of you may have already seen claims for the coronavirus. Unless the California State Legislature enacts a specific provision, addressing industrial causation, how will the Worker’s Compensation Appeals Board (WCAB) address these claims? Will the WCAB treat the coronavirus similarly to other viral and bacterial diseases? If so, then many of these claims will be deemed nonindustrial.
According to the Centers for Disease Control and Prevention (CDC), COVID-19 is a new form of coronavirus. The coronavirus causes a wide range of sicknesses from the common cold to more severe conditions such as Severe Acute Respiratory Syndrome (SARS). The CDC notes, however, that COVID-19 is not the same as previous forms of the coronavirus. Health professionals around the world are currently researching the exact form of sickness caused by COVID-19 and for a vaccine. For the time being, COVID-19 will likely fall into the category of nonoccupational diseases.
A nonoccupational disease has been defined as, “one that is not contracted solely because of an exposure at work or because it is related to a particular type of work.” (See LaTourette v. WCAB (1998) 63 CCC 253, 258; see also Johnson v. IAC (1958) 23 CCC 54, 55). Diseases such as the cold, flu, and bronchitis are considered nonindustrial even if they could be spread by co-workers. The reason they are deemed by law as nonindustrial diseases is because of how difficult it is to discern their origin and are so widespread as to make their connect to the workplace doubtful. As with many general rules in worker’s compensation, there are two major exceptions:
(1) the employee is subject to an increased risk compared with that of the general public; or
(2) the cause of the injury is an intervening human agency or instrumentality of employment.
The first exception is likely the one that would apply most with regard to COVID-19. Employees probably subject to the first exception include health care professionals, first responders, hospital workers and other similarly situated employees that come into greater contact with an infected person than those in the general public. A nurse or janitor working at a hospital that has treated COVID-19 infected persons will have more persuasive evidence to prove that they were exposed to the coronavirus at work. For this exception to apply, the injury must be a natural reasonably probable result of the employment or its conditions. (See Bethlehem Steel Co. v. IAC (George) (1943) 8 CCC 61, 63).
Employers and worker’s compensation carriers may not be unaffected by the COVID-19. Only time will tell. How great of an impact this virus will have in the worker’s compensation system is still unfolding.
By Isaac Escobedo, Esq., Senior Counsel, Sacramento Office March 2020