California and the world are undergoing an unprecedented shutdown of the economy as a result of the COVID-19 epidemic, and its impact is being felt in the workers’ compensation system. Insurers are facing highly unusual situations that have rarely been addressed, including third-party exposure and the risks and benefits of remote employment.
The State of California has issued a statewide remain-in-shelter order, requiring a near shutdown of the once-booming economy, with only a few exceptions (such as food supply and medical care). Insurers should be aware of claims of exposure to COVID-19 by applicants who continue to treat for their industrial injuries.
As many adjusters are aware, injuries sustained during medical treatment could give rise to compensable consequences. The familiar example is when an applicant is injured in a motor vehicle accident while driving to a medical appointment. Injuries sustained from a motor vehicle accident are a compensable consequence of the industrial injury if the accident occurs while the employee is going to or coming from medical treatment for a compensable injury, unless the employee materially deviates from a reasonably direct route for a purpose not germane to the medical visit. Esquivel v. Workers’ Comp. Appeals Bd. (2009); Laines v. Workmen’s Comp. Appeals Bd. (1975).
Therefore, insurers should be aware that some applicants may allege that they contracted COVID-19 as the result of their medical treatment. If this is alleged, the insurer should immediately investigate whether the medical provider has any other reported cases at their facility. The inherent nature of a viral infection, particularly one as widespread and virulent as COVID-19, raises the possibility of multiple points of exposure, including non-industrial sources (such as family and community members).
As noted more fully in the accompanying article, “Communicable Diseases in California Workers’ Compensation: An Overview“, an applicant would need to prove one of the two standards for alleging a compensable coronavirus claim. The first is that either the employment subjected the employee to an increased risk compared to general public. The second is met “if the injury is [because of] an intervening human agency or instrumentality of the employment.” See Latourette v. WCAB (1998), 17 Cal.4th 644, 654.
Similarly, the rise in remote workers during this epidemic also raises concerns about injuries sustained during employment at home. In this article about telecommuting employees, we fully addressed issues of industrial injuries arising from employment at home. The WCAB has held that injuries sustained while working from home are compensable if the employer is aware of the remote employment and gives express or implied approval consent. Santa Clara Valley Transportation Authority v. WCAB (Tidwell) (2017).
Of course, not all injuries sustained while working at home are covered under workers’ compensation. An employee who sustains an injury while running a personal errand, taking care of their children, or otherwise deviating grossly from their at-home employment would arguably not have a viable claim. The personal comfort doctrine, however, has been applied to remote employees. Therefore, injuries sustained at home while using the bathroom or eating, may be compensable.
Insurers should carefully investigate at-home injury claims, as they are often not witnessed. Also, the employer should verify that the employee was expected to work from home, and should confirm work hours and expectations. An employee who chose to work remotely for their own convenience, without their employer’s knowledge or approval, is less likely to prevail in proving an industrial injury.
Finally, some insurers have concerns about applicants who contracted COVID-19 during their employment possibly exposing and infecting their family members. Is an insurer liable in such cases? This scenario presents the unique situation of “injury without employment”. Unless there is an employment relationship between the infected person and the employer, workers’ compensation should not cover the claimed injury.
However, an employer may be civilly liable in cases where an infected employee subsequently infects his or her family. In these cases, the infected family member could file a lawsuit against the employer, alleging negligence by exposing an employee to a communicable disease that caused the family member’s infection. There have been civil cases involving employees who were exposed to asbestos and brought home asbestos on their clothing or their body, which subsequently caused injury to their family members. The California Supreme Court held that employers have a duty of care to non-employees when it is reasonably foreseeable that employees would transfer toxic agents to their family members. Kesner v. The Superior Court Of Alameda County.
To summarize, California workers’ compensation has not dealt with a situation as destructive to the economy as the COVID-19 pandemic. By proactively investigating infection claims, and understanding the boundaries of the workers’ compensation system, insurers can effectively navigate through this situation.
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 mburns@bradfordbarthel.com or (408) 392-8202.
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