The Basic Rule — Increased Risk and the General Public
From Navigating COVID-19
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An employee who is not covered by a presumption may claim successfully that his or her COVID-19 illness was work related by proving that his or her risk of contracting the virus was materially greater than that of the general public, or more common at the workplace than among the public. The most relevant cases to the coronavirus outbreak would be two California Supreme Court cases from 1920 related to what's commonly called the Spanish flu –– City and County of San Francisco v. IAC (Slattery) and Engels Copper Mining Co. v. IAC (Rebstock). (Note that the California workers' compensation system was only 2 years old at the time!)
In Slattery, the Supreme Court awarded death benefits to the widow of a hospital steward who died in 1918 of the Spanish flu. The employer argued that the employee did not contract the influenza from his employment because an epidemic of the disease was raging in the city at the time, the disease was highly infectious, it was so general that 1 in 10 city residents contracted it and virtually every member of the community was exposed to it.
The Supreme Court found that the employee was exposed directly to a considerable number of influenza patients and came down with the disease within the period of incubation after his exposure. It explained that if the epidemic were so severe that if the proportion of the afflicted general public was anything like the number of afflicted in the employee’s class, it might be too speculative to award benefits. But the evidence established that 50%-85% of nurses contracted the disease, compared with 10% for the community in general. It found that this percentage was so great that it was reasonable to conclude that the employee's illness was due to the peculiar exposure of his employment.
Similarly, in Rebstock, the Supreme Court held that a safety engineer who contracted the Spanish flu that caused a heart condition was entitled to an award of benefits. The employee gave up his regular duties at the employer's request for five or six days to care for co-workers suffering from the disease. The employee contracted the disease himself. The employer argued that he acquired it due to the general exposure to which every member of the community was subjected at the time. Again, the Supreme Court found that the employee's chance of contracting the virus was 5 to 8 times as great as the community at large –– he was "exceptionally exposed" and contracted the disease in the course of employment. 
This exception has been applied in other cases. In Bethlehem Steel Co. v. Industrial Acci. Com., the Supreme Court held that 10 shipyard workers who contracted keratoconjunctivitis, a contagious eye disease, were entitled to benefits even though there was a similar epidemic in the city. It found that “The evidence is quite convincing that the disease in the community outside of the shipyards was of much less proportion compared to the population.” It concluded that the employees met their burden, proving that the risk of contracting the disease by virtue of the employment was materially greater than that of the general public.
In addition, in Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt), the Supreme Court awarded compensation benefits to a traveling salesman who contracted a respiratory illness caused by a fungus that thrives in California's San Joaquin Valley and in Arizona, commonly known as Valley fever. Before his employment, the salesman had never been to either region. The court stated: "It was by reason of and incident to his employment that he came in contact with the infection. The risk to which he was subjected by his employment was not the same as that of the public in the endemic area inasmuch as the great majority of the inhabitants there possessed an immunity to the disease which [the employee], living outside the area, lacked." For discussion of other cases, see "Sullivan on Comp" Section 5.9 Occupational Disease.
Application of Increased Risk Exception to COVID-19
Given the cases outlined above, many workers who contract the coronavirus will be able bring workers' compensation claims. That's especially true for employees who contracted the disease during the lockdown.
Gov. Gavin Newsom's executive order of March 19, 2020 had required all California residents to stay home, except for workers deemed to be essential. By specifying that certain workers should continue working, while requiring all others to stay at home, the executive order potentially identifies workers with increased exposure to the coronavirus. That is, if the general public stays home, only certain workers in the field, arguably, are at greater risk than the public. The argument might weaken, however, when people start going back to the workplace.
The list of essential workers includes:
- health-care providers, hospital personnel and workers in medical facilities;
- law enforcement officers;
- grocery and pharmacy workers;
- food manufacturing employees;
- farm workers;
- mass transit workers, taxi and truck drivers;
- postal and shipping workers;
- workers providing access to banking and lending services; and
- gas station workers.
Only health-care workers and law enforcement officers have been given a COVID-19 presumption. Other workers either must establish that there was a COVID-19 outbreak at their workplace or that they had an increased risk of exposure.
Pursuant to Bethlehem Steel, nonessential workers also might be eligible for workers' compensation benefits if they can prove that they're at increased risk. Nothing about Bethlehem's shipyard workers necessarily made them more susceptible to keratoconjunctivitis than other employees. But the Supreme Court still upheld a determination that their exposure was greater than that of the general population based on the evidence at trial. Likewise, if a large percentage of office employees or factory workers for the same employer contract the coronavirus, the courts might find sufficient evidence of an increased risk compared with the general public.
Furthermore, even if they're not essential workers or they can't prove that a material percentage of co-workers contracted the coronavirus, employees, pursuant to Ehrhardt, could assert an increased risk if they were required to travel to where there was an increased risk of exposure. For example, a salesperson could meet with officials at a hospital where COVID-19 patients were treated, or in an office building where it was discovered later that a significant percentage of employees contracted the coronavirus.
Accordingly, although employees have the burden of proving that their increased risk was materially greater than that of the general public, they have multiple ways of meeting the burden. The outcome will depend largely on the evidence of exposure presented at trial.
In one case, the appeals board rescinded a workers' compensation judge's finding that an applicant sustained a compensable injury in the form of COVID-19 when a QME's opinion did not constitute substantial evidence on the issue. The board found that the COVID-19 presumptions did not apply because the applicant last worked on March 11, 2020, prior to the adoption of any presumptions. The QME found that her COVID-19 probably was industrial based on information that she was around hundreds of people daily. At trial, however, the applicant testified that she worked in a cubicle with four to six probation officers and met with a little more than 10 clients per month. The defendant also presented testimony that, other than the applicant, no employees were diagnosed with or tested positive for COVID-19 at the time of her infection. The board remanded with instructions that the QME be provided with the more specific history given in the trial testimony including the applicant's working conditions, the frequency and duration of her contacts with the public and her co-workers, and the fact that none of the applicant's co-workers was diagnosed with COVID-19 during any relevant period.
Compensability also will require a medical opinion to determine whether it was reasonably probable that the employee's job with the defendant was a causative factor in the development of COVID-19, and, in cases of death, that the COVID-19 was a causative factor in the death.
- South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal. 4th 291, 301.
- (1920) 183 Cal. 273.
- (1920) 183 Cal. 714.
- City and County of San Francisco v. IAC (Slattery) (1920) 183 Cal. 273, 282.
- City and County of San Francisco v. IAC (Slattery) (1920) 183 Cal. 273, 283.
- Engels Copper Mining Co. v. IAC (Rebstock) (1920) 183 Cal. 714.
- (1943) 21 Cal.2d 742.
- Bethlehem Steel Co. v. Industrial Acci. Com. (1943) 21 Cal. 2d 742, 750.
- (1942) 19 Cal. 2d 622.
- Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt) (1942) 19 Cal. 2d 622, 630.
- See https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.
- Jackson v. County of Los Angeles, 2022 Cal. Wrk. Comp. P.D. LEXIS 230.
- See Ramirez, Murillo v. Maurice Kariem & Company, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 235; Dawson v. Patton State Hospital, 2023 Cal. Wrk. Comp. P.D. LEXIS 62.
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