The coronavirus outbreak has changed our daily lives in ways that most could never have imagined and only ever saw in the movies.
While the effect of the virus on our future is still unknown, one thing we do know is that coronavirus claims are just around the corner. Addressing issues related to industrial causation, eligibility for total temporary disability benefits, and employer obligations are interesting and novel questions which will be litigated in the coming weeks.
It is important to keep in mind that TTD benefits are not owed to an employee unless there is both “injury and disability” as required by Labor Code 4650. Let’s look at a few potential scenarios that we are likely to encounter related to coronavirus cases.
Veronica, a warehouse order selector, is one of 500 people employed at a distribution center. One worker at the warehouse tests positive for the coronavirus and thereafter stays home. Veronica has no signs of infection and initially tested negative, but insists that she should stay home for the 14 day incubation period and in the interim receive TTD benefits. Is she entitled to be off work and receive TTD?
The answer is likely no, as Veronica cannot show that she has sustained an industrial injury. Her potential for exposure to the virus was low, given the size of a warehouse and the typical seclusion of order selectors.
Large warehouses have responded to positive tests by not allowing the infected employee to return to work until they have recovered and sanitizing the workplace prior to reopening, thus greatly reducing the chance of further infection. Additionally, Veronica does not have any disability as required by Labor Code 4650, which requires that TTD “shall be made not later than 14 days after knowledge of the injury and disability.”
Without a positive test to show injury or disability, TTD benefits are not owed. Even if the employer took the extraordinary step of completely closing the warehouse due to a single positive test, Veronica still does not have a work related injury or illness and is not entitled to TTD benefits during the shutdown.
Sarah, a nurse at a hospital, is in frequent contact with sick patients admitted to the hospital. For several shifts a week, Sarah works in the wing with the coronavirus patients.
During one shift, Sarah was changing a ventilator tube for a COVID-19 patient when the tubing came loose and she came into contact with bodily fluids. Sarah was tested for coronavirus, which came back negative. She is quarantined at home for 14 days due to the direct exposure, but is she entitled to be off work and receive TTD?
The answer is, again, likely no. The exposure to the virus alone is NOT an injury; Sarah does not have a viable workers’ compensation claim until there is a positive test. If Sarah does test positive, she would then be entitled to both medical treatment and to TTD benefits. The severity of the injury and potential exposure for permanent disability will depend on whether the virus causes respiratory problems, including COVID-19.
Penny, a grocery store clerk who lives alone, begins to feel sick and goes to the hospital with symptoms associated with the coronavirus. She tests positive for the virus and her condition warrants hospitalization.
Penny uses personal protective equipment, such as a mask and gloves, during her work shift and her employer has reported no other cases of the virus at her store location. In the last 14 days, Penny has only traveled from her home to her work, where she also buys her necessities. Is she entitled to receive TTD while she is off work?
The answer is likely yes. It is more probable than not that Penny’s exposure to the virus occurred at her place of employment. The fact that no other employees have tested positive does not preclude Penny from becoming infected by one of the hundreds of store customers she comes into contact with each day. Penny has tested positive and has both injury and disability. Penny does have a valid workers’ compensation claim and is entitled to TTD benefits as well as medical treatment.
We should keep in mind that any potential coronavirus claim will likely include a claim for psychiatric injury. This is similar to needle stick cases by health care workers, who will often have and file legitimate psychiatric claims during the incubation period for HIV, hepatitis, and other blood-borne illnesses.
The difference with the coronavirus is that the incubation period is usually only a few days, and so far not more than 14 days. Whether a valid psychiatric claim exists will largely depend on the circumstances of the individual, including prior psychiatric history, extent of probable coronavirus exposure, and the likelihood of complications with infection.
The issues of compensability and entitlement to benefits due to the coronavirus are very much dependent on the factual circumstances of each case. However, in all circumstances, the employee must have an injury and disability in order to collect benefits.
This article was written by Zane P. Uribarri, who is an experienced workers’ compensation defense attorney at the Law Offices of Bradford & Barthel’s Ontario office. If you have questions about workers’ compensation claims for COVID-19, or any other workers’ compensation defense issues, please feel free to contact Zane via phone (909.476.0552 Ext. 1349) or email.
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