Per Governor Newsom’s recent Executive Order (EO) issued on May 6th, employees who have a positive test result or diagnosis of COVID-19 within 14 days of performing work somewhere other than home at the direction of their employer may enjoy a broad rebuttable presumption that the infection is industrial. While there are other requirements (diagnosis must have been performed by “a physician who holds a physician and surgeon license issued by the California Medical Board”, dates of injury must occur from May 6, 2020 through July 5, 2020, etc), the requirements that the labor or services be performed “at the employee’s place of employment at the employer’s direction” seems clear.
But any good attorney can turn otherwise clear EOs into mush as clear as mud by asking questions, such as:
What can an employer do about an employee who tests positive, but has worked for two employers in the last fourteen days? How do you determine who is responsible?
First, set up the claim, investigate and then join the other party. Your investigation should address:
- job duties at both employers
- potential exposures at both employers (that is, who did the applicant interact with)
- timeline for days/hours/shifts worked at both employers.
- symptoms start date timeline, diagnosis, positive test result
- medical treatment start date
- a litany of questions developed to determine time and place of exposure. You will find many such questions on slides 83-91 from PowerPoint used in B&B’s webinar: “The Pandemic, the Claims Desk and You: How Will COVID-19 Impact W/C?” This can be viewed at: https://bradfordbarthel.com/event/the-pandemic-the-claims-desk-and-you-how-will-covid-19-impact-w-c/
- subpoena the personnel file/wage statement/time cards from the other employer
- look up WCIRB info on the other employer at caworkcompcoverage.com
- If more info from the other employer is needed, consider deposing their “PMK” or “person most knowledgeable”
- do a social media check (google his Facebook page, just in case it’s public)
- anything else pertaining to who/what/when/why/how
Depending on what your strategy dictates, the foregoing can be performed before, during, and after the attempt to join the other employer and carrier.
Good luck!
Got a question about workers’ compensation defense issues or pending workers’ compensation legislation? Feel free to contact John Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he heads the firm’s Sports Law Division and watches the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist, where he reported on work-related injuries in all 50 states. Feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these and other topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Feel free to contact Don at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.
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