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KEEP CALM AND WASH YOUR HANDS
Whether it’s Love in a Time of Cholera, or Life in a Time of Coronavirus, humans have been battling bugs since we crawled out of caves. While a lot is uncertain as our top minds are at work on better understanding the virus and creating a vaccine, there are a lot of steps we can take to minimize exposure and keep healthy while still meeting our work obligations. First and foremost, keep in mind the signs in some restaurant bathrooms that read, “Employees Must Wash Their Hands, But You Probably Should Too.” The CDC recommends that you wash your hands often with soap and water, particularly after using the restroom, before eating, and after coughing or sneezing. To get maximum effect, it’s recommended that you wash your hands for at least 20 seconds, which is the amount of time it takes to sing the “Happy Birthday” song twice. If that song starts to grate, here’s a helpful list of alternative pop hits to hum at the sink: https://www.latimes.com/entertainment-arts/music/story/2020-03-03/coronavirus-hand-washing-20-seconds-happy-birthday-10-songs
Additionally, it’s recommended that anyone experiencing symptoms should stay home from work if possible and should make sure to cover their mouth with a tissue if they cough or sneeze. Using disinfectants on frequently touched surfaces (such as a keyboard) is also recommended. Luckily, the rise in remote work capabilities does give employees and employers some flexibility in keeping healthy and keeping the spread of the illness under control.
27th ANNUAL DWC CONFERENCE HIGHLIGHTS
The annual DWC Conference was almost canceled on account of the coronavirus, but on advice from the Alameda County public health departments went ahead for the 27th year running in Oakland on 3/5 and 3/6 this year. Attendance was notably down and the hand sanitizers with our logo on them were more popular with clients than ever this year. Regardless of the turnout, however, the presentations were as high quality and informative as ever.
The conference was opened by DWC Administrative Director George Parisotto, who reminded all of the parties in attendance of the shared goal of returning injured workers to work. Mr. Parisotto briefly discussed the impacts of AB 5, which will apply the Dynamex ABC test for determining whether a worker is an independent contractor or an employee to workers’ compensation claims starting on 7/1/2020. A more detailed and very informative presentation was also provided on the topic by WCJ Ledger and WCJ Rassp. Mr. Parisotto and chief counsel Yvonne Hauscarriague also discussed recent anti-fraud measures, such as the stay on liens from providers charged with crimes. Since the law freezing such liens went into effect, over 650,000 liens have been stayed, over 400 providers have been suspended due to fraud and abuse, and nearly 300,000 liens have been dismissed. The AD also touched on a state auditor’s report indicating that the DWC has not appropriately addressed its QME shortage and indicated that the DWC is developing a plan to increase the number of QMEs starting next month.
The Southern California conference appears to still be scheduled for 3/26 and 3/27 at the LAX Marriott for the time being, and it is anticipated that the DWC will continue communicating with local health departments as the event approaches to ensure the safety of its attendees.
COMPENSABILITY OF CORONAVIRUS: DO GENERAL OUTBREAKS OF ILLNESS REQUIRE A RUN ON CLAIM FORMS?
One of our larger public entity clients and two large Bay Area health care organizations recently contacted Carol Powell, the Senior Managing Partner in our Walnut Creek office, with concerns about whether first responders and hospital employees may require claim forms and TTD benefits in the event that they develop flu-like symptoms and need to be tested for coronavirus or actually contract the coronavirus. Based on her research, it is unlikely that an employer would be required to provide a claim form during a period of testing or quarantine or be required to pay TTD benefits during any period of testing or quarantine.
First and foremost, it should be noted that leave from work to undergo diagnostic testing does not create a TTD entitlement. TTD benefits have not been found owing where an applicant missed work to undergo diagnostic testing on a body part that was ultimately found noncompensable (Potts v. WCAB (1196) 61 CCC 1082 (writ denied)), and TTD benefits have not been found owing where an injured worker was asked to undergo a fitness-for-duty evaluation before the employer would return the applicant to work (Roberts v. WCAB (2000) 65 CCC 219 (writ denied), though in that case the applicant had already been found permanent and stationary).
Similarly, being exposed to the disease or being placed in quarantine do not actually establish an “injury”, so there would likely be no obligation for the employer to provide a claim form in either case. The employer may have other legal obligations to provide pay for lost wages, but it is unlikely the obligation would arise under workers’ compensation laws.
As to compensability in the event that someone does unfortunately contract the coronavirus, the question to ask in determining if a disease is occupational or nonoccupational is whether the job makes the chances of contracting the disease “materially greater,” than the chances of contracting the disease as a member of the general population. It is well established that the common cold, the flu, bronchitis, or conjunctivitis are not generally considered compensable work injuries. The law treats such illnesses differently than other injuries as a matter of public policy due the high cost of avoidance and treatment of common ailments across the entire workforce and the difficulty of establishing a link between the illness and employment.
Even in the case where there is a materially greater chance of exposure due to the job, medical evidence must establish a causal connection between the employment and the disease. The California Supreme Court has stated that the fact that “an employee contracts a disease while employed or becomes disabled from the natural progression of a nonindustrial disease during employment will not establish a casual connection,” and goes on to state that an ailment “does not become an occupational disease simply because it is contracted on the employer’s premises (LaTourette v. WCAB (1998) 63 CCC 253 and Johnson v. IAC (1958) 23 CCC 54). Causation in cases like these is difficult to establish. An applicant who worked at a hospital was not found to have a compensable injury when an independent medical examiner could not determine whether it was probable that applicant contracted viral encephalitis (a relatively rare disease) at a hospital as opposed to somewhere else (Vawter v. WCAB (1980) 45 CCC 806 (writ denied)).
There are, of course, exceptions. The California Supreme Court has awarded compensation benefits to a traveling salesman who contracted San Joaquin Valley fever (caused by fungus unique to that region) because he had never and would likely never have been to the region in which the disease is common had it not been for his job (Pacific Employers Insurance Co. v. IAC (Ehrhardt) (1942) 7 CCC 71). A detective’s hepatitis B infection was found compensable even though specific exposure was never proven because his work exposed him to drug paraphernalia and possibly infected individuals at a rate notably higher than that of the general population (City of Fresno v. WCAB (Bradley) (1992) 57 CCC 375 (writ denied). Contrasting that case, however, a claim for hepatitis filed by a delivery driver who contracted it while eating doughnuts at one of his stops was not found compensable because the applicant was not subject to exposure any different than the general public (McKeon v. WCAB (1988) 54 CCC 332 (writ denied).
Guidance is provided to employers as to when an employer is required to provide a claim form and report an injury to OSHA in 8 CCR 14300.5. The regulation states that an injury or illness must be considered work-related if an event or exposure in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. At 8 CCR 14300.5(b)(2)(H) the regulation excludes the “common cold or flu,” though also states that “contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work.”
On the balance then, with current medical information suggesting that the coronavirus is a risk to the general population and not to workers in specific fields, and is in many ways analogous to the common cold or flu, employers in general are not required to provide workers who contract the disease a claim form or provide workers’ compensation benefits, unless the facts suggest the injured worker was at a materially greater risk of contracting the disease than the general public and medical evidence supports a link between employment and the disease. Given that the best available scientific evidence suggests that the mortality rate and communicability of the coronavirus may be higher than that of the regular flu, it is very possible that these issues will become litigated, but if every case were to be deemed compensable for all public health workers and first responders, it would have a devastating financial impact on the workers’ compensation system. We will keep you posted on this evolving area of the law and would be happy to provide more detailed in-house training at your request.
NEW CASE BRIEFS AVAILABLE!
This month, Gary Shay, Associate Attorney in our Van Nuys office, discusses the recent Panel Decision of Luisa Isabel Rodriguez v. Kelly Services (2019), where the WCAB issued an opinion on what constitutes a “person competent to testify,” under Labor Code 4903.8, which requires a declaration be issued by a “person competent to testify” when a lien is filed. The declaration must set forth that a billing statement truly and accurately describes the services or products that were provided to an injured employee. The article provides a helpful road map for formally objecting to the Labor Code 4903.8 declaration and is a must read for anyone heavily involved in lien litigation. The brief can be found at the following link: https://www.mulfil.com/the-fallacy-of-competency-to-testify/?single_header=briefs&get_cat=case-brief
This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.
Need Assistance? Are you interested in having M&F attorneys design a customized training or claim review round-table meeting for your office? We’d be happy to provide on-site assistance as required to help you meet the challenges of today’s claims administration issues, and to assist you in complying with all regulatory guidelines. Contact us today at firstname.lastname@example.org for further details or to schedule a seminar!