The COVID-19 pandemic has placed the issue of workers’ compensation claims for infectious diseases back on insurers’ radar.
This area of California workers’ compensation is less familiar to most insurers, in contrast to the more common orthopedic claims. The following serves as a brief outline of the legal framework for evaluating infectious disease claims in California workers’ compensation.
As with all claims, liability for infectious disease claims arise only if an employee sustains injury “arising out of and in the course of employment” (Labor Code 3600). For purposes of the causation requirement, the connection between work and the injury must be a “contributing cause” of the injury. South Coast Framing, Inc. v. WCAB (Clark) (2015) 61 Cal.4th 291, 298.
In infectious disease claims, causation is often nebulous, particularly in an epidemic where there are multiple areas of exposure, many of which are outside the workplace. An applicant has the burden of proving “reasonable probability” of industrial causation, but is not required to prove causation to a “scientific certainty.” See McAllister v. Workmen’s Comp. App. Bd. (1968) 69 Cal. 2d 408.
Reasonable probability does not require applicant to prove in detail, “…the approximate number of hours of exposure, or as to the amount of exposure needed to increase materially the danger of injury.” McAllister, supra, 69 Cal.2d at 418.
Nor does an employee have to prove “scientifically…the source of contagion or the cause of the disease, but only that he establish by a preponderance of likelihood the fact that his disability arose out of and happened in the course of employment.” McAllister, supra, 69 Cal.2d at 417–418.
When the alleged injury involves a viral disease, such as COVID-19, the employee must demonstrate a relationship of cause and effect between the employment and the disease. However, the applicant must also prove that “the employment subjects the employee to an increased risk compared to that of the general public.” LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 654.
Courts have placed special emphasis on job duties when evaluating whether the employment subjects the applicant to an increased risk of exposure. For example, in City of Fresno v. Workers’ Comp. Appeals Bd. (Bradley) (1992) 57 Cal.Comp.Cases 375 (writ den.), a detective’s hepatitis B infection was found to be industrial, although there was no evidence of a specific exposure. Rather, because the nature of his work exposed him to drug addicts and needles, and the court concluded that this exposure led to a higher probability of contracting hepatitis B than the general population.
Similarly, in Dulac v Grambo Healthcare (2016 Cal. Wrk. Comp. P.D. LEXIS 587), the WCAB has held the working as a public teacher carried an increased risk of infection because one is “constantly bombarded by viruses brought into the classroom.”
In Pacific Employers Ins. Co. v. Industrial Accident Commn’ (Ehrhardt) (1942) 19 Cal.2d 622, the Supreme Court of California held that an applicant who was exposed to Valley Fever while on a work trip in an area where the infection was active, sustained an industrial injury. The applicant demonstrated that “the risk to which he was subjected by his employment was not the same as that of the public in the endemic area, inasmuch as the great majority of the inhabitants there possessed an immunity” which applicant lacked.
Where health care workers are concerned, the WCAB leans in favor of finding medical probability of infection. In County of Los Angeles v. W.C.A.B. (Gleason) (2002) 67 Cal. Comp. Cases 1049, 1052 (writ denied), the Board concluded that, although it may be impossible to prove with certainty that dirty needles that stuck the employee while employed as nurse exposed her to the hepatitis C virus, it was medically probable that her disease was caused by needle sticks while so employed, in absence of any other known cause of her infection.
In contrast, an applicant who worked in the office area of a hospital did not sustain an industrial injury where the medical legal evaluator “could not say whether it was as probable that [applicant] contracted the disease at the hospital as it was that she contracted it outside the hospital.” Vawter v. Workers’ Comp. Appeals Bd. 45 Cal.Comp.Cases 806, 807 [writ den.].
In light of the COVID-19 outbreak, insurers should be aware that a key question of whether applicant’s job duties placed him at a special risk for infection should start with an analysis of applicant’s job duties. Also, to constitute substantial medical evidence on the issue of causation in an infectious disease claim, a medical report must connect applicant’s job duties to a heightened risk of exposure to the virus.
Finally, a medical-legal report addressing COVID-19 exposure should discuss how the evaluator determined the probability of industrial exposure. It may be appropriate to consider epidemiological evidence, as well as the safety measures that were in place to prevent exposure. Without this discovery, a report finding industrial exposure should not be considered substantial medical evidence.
With this framework in mind, insurers will have an advantage in understanding the subtle distinctions between infectious disease claims and the more well-known orthopedic claims.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Mr. Burns practiced civil litigation and employment law. He currently serves as an arbitrator for the Santa Clara County Bar Association’s Fee Dispute Resolution Program. Since joining B&B, his primary areas of practice include workers’ compensation and subrogation. Mr. Burns can be reached at email@example.com or (408) 392-8202.
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