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What does the caselaw say? There is no doubt that everyone who participates in the current Workers’ Compensation system has been affected by the spread of the COVID-19 virus. And, it is not surprising to me that employers, carriers, examiners and attorneys alike are wondering what life after containment of the virus will bring to our little world of litigation. These changes include not only changes to the workplace, changes at the WCAB, but also with the filing of COVID-19 cases against employers. In the past few weeks, I have been given the opportunity to participate in a roundtable with clients and employers, and I drafted a memo regarding relevant Labor Code sections and an overview on the initial claim investigation process. And in preparation for these events, I have scoured caselaw to find out what it says about a claim for exposure to a virus or other infection. My search results are below. What does the caselaw say? Anyone who practices or works in our little world is well aware of the liberal nature of claim compensability in general. A virus or bacteria exposure at work is no exception. As is with any injury, the applicant has the burden of proving with a “reasonable probability” that the disability (i.e. COVID-19 exposure), occurred during the course and scope of employment. McAllister v. Workmen’s Comp. App. Bd. (1968) 69 Cal. 2d 408. However, caselaw also establishes that there can be significant difficulty in determining injury when the source is unknown or unclear, thus establishing a narrower rule specifically for infectious diseases. As stated in the LaTourette decision, “[I]n the area of nonoccupational disease, [t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.”…“The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease.” LaTourette v. WCAB (1998) 17 Cal.4th 644, 654. The opinion expressed in LaTourette is elaborated on further in the Pacific Employers decision, which states that simply because an applicant becomes ill and happens to be employed at the time of illness, this does not create the nexus needed to establish causation. Pacific Employers v. IAC (1942) 19 Cal.2d 622. Nevertheless, as is common with all workplace injuries, the burden is quite low. The applicant only has to provide a “reasonable” or “probable” causal connection to prove the source of any contagion or disease through a preponderance of the evidence. McAllister, supra, at 416-418. Bringing us full circle back to the injury as plead by the applicant, the caselaw identifies two exceptions to the compensability dilemma for a disease that would generally be considered non-occupational. They are: The employment subjects the employee to an increased risk compared to that of the general public. LaTourette, supra, at 654. Or, The immediate cause of the injury is an intervening human agency or instrumentality of the employment. LaTourette, supra at 654. For the first exception, there is plenty of caselaw to guide us in determining what exactly is an “increased risk” when compared to the general public. If there is a greater risk of exposure in the workplace as opposed to risk in the general public, an injury may be deemed industrial. For example, as quoted in the LaTourette decision, the Pacific Employers decision found that an applicant’s contracting of Valley fever was compensable due to multiple work trips to the San Joaquin Valley and Arizona regions which has mold and fungus in the soil that causes said condition. LaTourette, supra, at 654, Pacific Employers, supra, at 622. The court determined that the applicant lacked an immunity to this condition that local residents would have developed and as such was placed at greater risk than that of the general public. In Bethlehem Steel, the court determined that contracting the eye disease of keratoconjunctivitis was a compensable injury for a shipyard worker. Although this was a disease that was contagious throughout the San Francisco bay area in general, the Supreme Court determined that the shipyards of the San Francisco area had a greater proportion of employees exposed at the work site than the general population. Bethlehem Steel Co. v. IAC (1943) 21 Cal. 2d 742. As such, the injury as allegedly contracted while working was deemed industrial. Finally, we have the Bradley decision, which determined that a Hepatitis B infection was industrial despite no evidence of a specific incident of exposure, given that a detective was exposed on a regular basis to drugs and drug paraphernalia, thus creating a higher risk exposure. City of Fresno v. Workers’ Comp. Appeals Bd. (Bradley) (1992) 57 Cal.Comp.Cases 375. For the second exception, we can turn to the case of Maher v. WCAB (1983) 33 Cal. 3d 729, wherein a nurse’s assistant who had pre-existing tuberculosis received treatment while still working her usual and customary duties. After suffering from an adverse reaction to her medication, she filed a claim for her injuries. The Supreme Court decided that the required medical treatment that was needed to continue working resulted in an industrial injury, even if the condition itself was non-industrial. Let us not forget that once again, that ultimate burden borne by the applicant is still rather low, even for exposure cases. Indeed, per Guerra, “a medical opinion that industrial causation was ‘“not zero’” was sufficient contribution… ”. Guerra v. Workers ’ Comp. Appeals Bd. (Guerra) (2016) 246 Cal.App.4th 1301, 1310 quoting South Coast Framing v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 303. Work from home During a conversation I had with a

What you need to know about workplace exposure Following is a summary of my thoughts on the COVID-19 outbreak, claims filed as a result of alleged workplace exposure and the delay period for treatment and investigation upon filing of the claim. I also present some relevant Labor Code and Code of Regulation provisions, and a brief assessment of the timeliness of an investigation during the delay period. This is by no means a complete assessment, as it is merely a birds-eye view of this unique situation. CLAIM DELAY AND LABOR CODE/CCR SUMMARY The relevant Labor Code and Code of Regulation provisions are as follows: Labor Code §5401 (in part): (a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits under this division to the injured employee, or in the case of death, to his or her dependents. Labor Code §5402 (in part): (a) Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400. (b) If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period. (c) Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000.00). Labor Code §4610(i) addresses timeframes for UR determinations. This subsection also addresses prospective and current requests as well as addressing retrospectively. An emergency situation could result in any of these types of requests and further, requires a shorter timeframe for response of 72 hours in the event the condition is an imminent and serious threat. 8 CCR §9812 indicates in part that indemnity benefits are due within 14 days of the employer date of knowledge. In the event the claim is placed on delay, a delay notice shall be issued informing the employee that discovery is needed and the claim is on delay. 8 CCR §9767.5(f) requires that for non-emergency services, the MPN shall ensure that an appointment for the first treatment visit under the MPN is available within three business days of a covered employee’s notice to an MPN medical access assistant that treatment is needed. 8 CCR §9767.1 addresses the definition of emergency services. 8 CCR §9767.5 address in part, access standards for injured worker for emergency services. INJURY In general, an illness that arises from COVID-19 exposure will need to meet both elements below to be considered compensable and result in WC benefit eligibility: Illness must arise out of the course and scope of employment. Illness must arise out of or be caused by conditions particular to the work and not an ordinary disease of life to which the general public is exposed. In the case of COVID-19, it is critical to understand the unique job that an employee was performing if/when exposed. Healthcare professionals, first responders (EMT), hospital workers, and lab technicians often have a lower threshold for connecting the cause/source to the course and scope of their work. As you are aware, once a claim has been reported, it can be placed in a delay status, which affords the applicant the opportunity for treatment up to $10,000.00 while the claim is on delay. My particular conversation largely resolved around the need for timely investigation of potential COVID-19 exposure cases. In many instances, the emergency services rendered for an individual suffering from symptoms could consist of anywhere from a basic physician visit, to Emergency Room visits complete with medications and diagnostic studies, all the way up to the extreme cases of ICU admission, ventilator intubation and even death. Therefore, the $10,000.00 treatment allowance could be met and exceeded very quickly. Many potential scenarios have been posed by clients, which prompted this memo. First, a scenario was posed where an applicant alleged a workplace injury due to COVID-19 exposure, timely and properly reports the claim and seeks out medical treatment within in the MPN. In that particular scenario, assuming an evaluation is timely set with an appropriate physician and the applicant has only mild symptoms, it will still be a fairly quick progression of medical treatment to hit a $10,000.00 cap. Further, it is possible the cap will be met within 90 days, even if treatment is condensed to a few weeks to a month for recovery. The applicant would be afforded multiple evaluations. The evaluations would not be spread out 30-45 days as other injuries would afford as monitoring would need to be completed every few days. Testing for COVID-19 will consist of any detection blood test as sanctioned by the US government. This will result in at least one blood draw in addition to the test. Next, there will undoubtedly be multiple diagnostic tests for breathing and airway concerns. Per the US department of Health and Human Services, multiple tests include volume capacity, diffusion capacity, blood gas, pulse oximetry, and an x-ray of the lungs. There will also be general medications dispensed for flu-like symptoms, pain and general comfort. Simple pulmonary testing will run a few thousand dollars in total, along with lab work. Thus,