With our lives changing daily, it is important that we keep up on the additions to California law designed to help society through these challenging times. One recent and important change in workers’ compensation law took place on May 6th when the governor issued an executive order creating presumption of industrial injury in certain COVID-19 cases.
In this article, we will look at the legal implications created by the May 6, 2020 executive order issued by California Governor Newsom. The order gives rise to a presumption of industrial causation for COVID-19 claims which occur after March 19, 2020. It is important to note that the order itself does not address the notice requirements an employee must satisfy to trigger the employer’s duty to provide the claim form.
While the order solely addresses the issue of causation by means of a presumption which is designed to ease an employee’s burden of proof, if the presumption requirements are met, the employer could be imputed with knowledge sufficient to implicate its duty to provide the claim form. In drawing that conclusion, bear in mind that the act of providing the claim form is in no way an admission that the injury is work-related and the presumption is still rebuttable.
While the order itself may violate the concept of the separation of powers, the following is a breakdown of order, the created presumption, and how to address such a claim.
What Creates the Presumption
When is there a potential work-related COVID-19 claim? Here are the requirements outlined by the Order:
- There must be a positive test or diagnosis of COVID-19.
- If there was just a diagnosis, it was done by a licensed physician and confirmed by testing within 30 days of that diagnosis.
- The positive test was within 14 days of the employee performing work at any time after March 19, 2020.
- The employee was working at a location other than their home.
If all of the above conditions are met, there is a presumed work-related injury.
Meeting all four requirements is key because this presumption factors into the analysis of when to provide a claim form to an employee.
Under the Supreme Court’s decision in Honeywell v. Workers’ Compensation Appeals Board (Wagner) (2005) 35 Cal.4th 24, in order to trigger the duty to provide the claim form, the employer must have actual or constructive knowledge of the injury. This can take the form of either the employer’s own knowledge, knowledge from the employee, or knowledge from any other source. In the case of a presumptive injury due to COVID-19, it may be knowledge of a positive test or diagnosis of that employee. While the law does impose a duty on the employee to make that claim, if the employer becomes aware of a positive test for COVID-19, the employer is under an obligation to investigate. This would include at a minimum, asking how the injury occurred and at most providing a claim form at that point once confirmation of a positive test is received.
A general news story regarding cases at an employer’s geographic area would not be sufficient to trigger the duty to provide a claim form. However, it may trigger the duty to investigate and ascertain which employees may have tested positive or been diagnosed. Some examples that would constitute sufficient notice to trigger the employer’s duty to provide the claim form include an employee directly stating they have tested positive, the test results being provided to the employer, or a medical report from the employee’s doctor identifying a positive test or diagnosis.
When to Provide a Claim Form
Once an employer has knowledge of a presumed work related injury under the order, a claim form should be provided.
Pursuant to paragraph one of the order, if the conditions that create the presumption are met, then a claim form should be provided. Paragraph three of the order provides a 30-day window from date the claim form is filed with the employer to investigate and decide whether to accept or deny the claim. Once the claim form is returned, a decision to accept or deny must be issued in 30 days or the claim will be presumed to be work-related.
In order to determine if the obligation to provide a claim form has arisen, ask questions that help determine whether the governor’s order applies. These questions may include:
- Is there a report of a positive COVID-19 test?
- Who made the diagnosis of COVID-19?
- Have you been at work in the last 14 days?
Some employees may have been diagnosed or tested positive prior to the March 19, 2020, effective date of the order. Paragraph two states that the presumption applies to injuries through 60 days after the May 6, 2020 order. In those cases, a presumption does not apply, but if you have an allegation of work-related COVID-19, the duty to provide the claim form would unfold in the usual manner.
The following employees do NOT need to be provided a claim form:
- Employees diagnosed with COVID-19 without a positive test. Exception if the employee has a diagnosis and tells the employer that it is believed to be work related
- Employees who are staying at home because an infected family member is positive but have not had a positive test or diagnosis.
- Employees staying at home to avoid exposure.
- Employees who have not worked since March 18, 2020.
- Employees who exclusively perform work from home.
Disputing the Presumption
As noted, by providing the claim form the employer is not admitting to an injury. Despite the Order, an employer is still able to dispute the issue of causation. Disputing the causation of the exposure would take place after a claim form is returned. The process of disputing the causation of the claim will include identifying other sources of exposure outside of work, the nature of the applicant’s work, exposure to the public at work, extent of PPE used in the workplace, etc. Some potential questions may include:
- Have others in your home been diagnosed with COVID-19?
- Do other members of your household work outside the home?
- Do you know if you have come into contact with anyone who has been diagnosed with COVID-19?
- Have you been informed that you were at a location where there was a COVID-19 exposure?
- Have you been to any group gatherings outside your home?
- We also recommend, checking the rate of exposure in a particular store with that of the area in which the employee lives.
Because of the language of the governor’s order, some employees must receive a claim form despite having claims that can be disputed. The factual circumstances will govern whether a claim can be disputed or subsequently denied; for example, an employee with a household family member who tested positive prior to the employee’s positive test will create a situation where a claim form must be provided, but a subsequent workers compensation claim may be denied.
It is important to remember that each case is very fact specific, and important details such as job duties, location of employment, exposure to the public, other COVID-19 cases at the employer, the date of exposure and testing, are all needed to determine whether a claim form should be provided and whether a claim should be disputed.
This article was written by Louis A. Larres, and Zane P. Uribarri, both of whom are experienced workers’ compensation defense attorneys at the Law Offices of Bradford & Barthel. If you have questions about coronavirus cases or any other workers’ compensation defense issues, please feel free to contact us.
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