One side effect of the coronavirus pandemic that defendants will have to face is psychiatric claims filed by applicants who allege that the fear of contracting the virus at work has caused industrial depression or anxiety.
The COVID-19 pandemic has naturally raised concerns about employee safety, particularly as California businesses begin reopening. Employees returning to work are likely to have concerns about workplace safety. Employers are taking steps to address these concerns, including providing personal protective equipment and implementing strict hygiene standards. But workers’ compensation insurers may face claims from employees who, although not infected, are fearful about their health when returning to work. These fears will likely result in psychiatric illness workers’ compensation claims.
A particular area of concern involves employees who deal regularly with the general public, such as cashiers and bank tellers. May these employees successfully pursue a psyche claim due to the stress and fear of possible infection, without ever actually contracting COVID-19?
The Labor Code provides a higher standard for psychiatric claims as opposed to orthopedic claims. Specifically, Labor Code § 3208.3(b)(1) requires that to establish a psychiatric injury, an employee must demonstrate by a preponderance of the evidence (e.g. 50% or more) that “actual events of employment” were predominant as to all causes combined of the psychiatric injury. Psychiatric injuries arising from nondiscriminatory, good faith personnel decisions do not qualify for compensation. (§ 3208.3, subd. (h).)
The term “actual events of employment” is not defined in the Labor Code. Does a general fear of potential exposure to COVID-19 constitute an actual event of employment, even where the employee does not actually contract the virus. Several cases illustrate how fears and anxiety about “potential” events may be compensable.
The Court of Appeal has defined “actual events of employment” as follows: First, the factor must be an “event.” It must be “something that takes place” in the employment relationship. Second, the event must be “of employment.” It must arise out of an employee’s working relationship with his or her employer. (Pacific Gas & Electric Co. v. Workers’ Comp. Appeals Bd. (Bryan) (2004) 114 Cal.App.4th 1174.)
In Pacific Gas & Electric, the Court of Appeal held that an applicant’s “generalized anxiety about his future in a company struggling to survive” was not an actual event of employment. It was not a discrete event that occurred during the employment relationship. Fears about corporate downsizing, outsourcing of jobs, and the fear of future job loss are too broad to allow a viable psychiatric claim.
Similarly, applicant’s fear about the loss of company stock value was not compensable, as it was no different from the same fear the general public has with their investments. In contrast, however, applicant’s anxiety about dealing with irate and aggressive customers could support a psyche claim.
Another issue concerns short-term employees. If an applicant has not been employed for at least six months at the time of the alleged injury, a psychiatric claim should be denied under Labor Code § 3208.3(d), unless the event was “sudden and extraordinary.” The WCAB has held that infection claims, in most circumstances, are not “sudden and extraordinary” events to allow viable psychiatric claims.
In Aresco v. WCAB 79 Cal. Comp. Cases 1188 (2014), applicant contracted Guillain-Barre Syndrome, a bacterial infection, while employed as a maintenance worker at an animal theme park. The court held that the infection was not “sudden and extraordinary” regardless of whether the injury was caused by “eating tainted food, picking up trash, or eating a berry given to him by a co-worker,” as none of these can be considered an extraordinary employment condition. The WCAB concluded: “There is nothing unusual, uncommon, or unexpected about these activities occurring or causing injury in applicant’s employment as a janitor/maintenance worker at an animal theme park.”
There is the potential that an applicant with an actual, medically-supported phobia could assert a psychiatric claim related to fear of contracting an illness at work. In City of Newport Beach v. WCAB 66 Cal. Comp. Cases 506 (2001), applicant, a police officer, ended his employment due to a fear of contracting HIV and alleged a psyche claim. Applicant testified that his duties required close contact with individuals at high risk for HIV and AIDS, such as gang members, jail inmates, hospital patients, and homeless people. At times he had to perform pat down searches, restrain suspects, or become involved in altercations with these individuals. In the course of his duties he came into contact with the body fluid (tears) of an HIV-infected suspect, and his phobia became symptomatic.
The judge held, and the WCAB affirmed, a finding of an industrial psychiatric injury. The judge did not find that the AIDS phobia was merely a passive response to applicant’s work exposure to HIV-positive individuals. Rather, applicant’s “predisposition to the phobia would not have manifested itself in the form of fear of contracting AIDS absent the industrial stresses caused by his duties as a police officer.”
It should be noted that the applicant in this case, according to the medical reports, had an actual, medically-supported, latent and asymptomatic phobia of contracting HIV. In a COVID-19 claim, absent a preexisting phobia of contracting the virus, the actual events of employment, such as working as a cashier, should not rise to the level of supporting a viable psychiatric claim. Medical records should be carefully reviewed to determine whether the applicant ever treated for a phobia or obsessive-compulsive health concerns when evaluating a COVID-19 psyche claim.
An employee’s generalized fear of returning to work and contracting COVID-19 should not constitute actual events of employment to support a psychiatric claim. Similarly, a fear of contracting COVID-19 at work should not constitute a sudden and extraordinary event to circumvent the six-month rule.
Finally, if an applicant asserts a COVID-19 psyche claim, medical records should be carefully reviewed to determine whether the applicant has medical evidence demonstrating a latent or preexisting phobia or an obsessive-compulsive psychiatric condition. Absent such evidence, the bar to successfully asserting a COVID-19 psyche claim should remain high enough to successfully defend these claims.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Michael practiced civil litigation and employment law. If you have questions about psyche claims, COVID-19 claims, or any other workers’ compensation defense issues, feel free to contact Michael at mburns@bradfordbarthel.com or (408) 392-8202.
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