Nonindustrial COVID-19 Aggravates an Industrial Condition

As explained previously, in LaTourette, the Supreme Court set out two exceptions to the general rule that nonoccupational diseases (such as COVID-19) are not compensable. The second exception is those cases where the immediate cause of the injury is an "intervening human agency or instrumentality of employment". This is confusing language, but seems to mean that the employment itself somehow contributed to the cause of the injury.

An example of this exception was set forth in Maher v. Workers' Comp. Appeals Bd. There, the Supreme Court held that a nurse's pre-existing, nonindustrial tuberculosis was compensable when she was required to undergo treatment for it as a condition of employment, and sustained a significant adverse reaction during the course of treatment. It stated "California law does not require that employment be the sole cause of an injury, only that it be a concurrent or contributory cause." The Court concluded that because treatment of the nonindustrial tuberculosis was required as a condition of her employment, the injury was linked in some causal fashion to her employment, and thus her injury was AOE/COE. For further discussion, see Sullivan on Comp Section 5.9.

The most direct application of Maher would involve a situation where a worker suffers injuries from the side effects of medication used to treat or prevent COVID-19. For example, if an employer required an employee to receive a COVID-19 vaccine as a condition prior to returning to work, any injuries sustained from the vaccine would be compensable.

Since Maher, Labor Code § 3208.05 was enacted and defines "injury" as a reaction to or a side effect arising from health care provided by an employer to a health care worker, which is intended to prevent the development or manifestation of any bloodborne disease, illness, syndrome, or condition. This statute essentially extends the rule in Maher that any injury sustained by health care worker as a result of preventive health care provided by an employer.

EMPLOYMENT AS A CONTRIBUTING CAUSE IN CASES OF COVID-19

What if a worker has an underlying non-industrial condition, and then contracts COVID-19 from work? And the disease causes a worsening of the condition? For example, a worker might have heart condition which was not caused by work. But what if that same worker caught COVID-19 at work, and as a result that heart condition worsened? Would that aggravation of a non-industrial condition and the according need for benefits be the employer's responsibility under workers' compensation? Yes.

As noted above, "intervening human agency or instrumentality of employment" is confusing language. It may be viewed to mean that any work related causal factor can be enough to establish industrial injury.

If so, it would be in accord with the general rule that, even if an employee's underlying condition was not caused by the employment, a disability or death is compensable if the disease was aggravated or accelerated by his or her work. It has been well established that the employer "takes the employee as it finds him. A person suffering from a preexisting disease who is disabled by an injury proximately arising out of the employment is entitled to compensation even though a normal man would not have been adversely affected by the event."

For example, in South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark). an employee died from a combination of drugs prescribed following a fall at work. Some of the drugs were prescribed by his workers' compensation doctor and the other drugs were prescribed by his personal doctor. The QME reported the industrial component was the “minimum level of causation,” like a couple little crumbs off the crust of 12-inch pie. Nevertheless, it believed this was enough to award death benefits.

The Supreme Court explained that for the purposes of causation in workers' compensation, it is sufficient if the work was a contributing cause of the injury. It explained, "Death attributable to both industrial and nonindustrial causes may support a death claim." Accordingly, because the evidence established that the drugs prescribed by the workers' compensation doctor contributed to the employee's death, it was compensable under workers' compensation law. For further discussion, see Sullivan on Comp Section 12.2.

Because only a minimal causation is required, an employer may be liable if there is an underlying industrial condition that combines - to any degree - with non-industrial COVID-19 to cause disability or death. The evidence indicates that people with preexisting conditions (such as diabetes, hypertension, chronic lung disease, heart disease, or cancer) have a higher risk for severe illness and death from COVID-19. If an employee with an industrial heart condition, respiratory condition, diabetes, or hypertension dies as a result of COVID-19, then the employer would likely be liable for death benefits. The underlying industrial injury may be characterized as a causal instrumentality of employment under this standard, and thus the employer has liability. Death benefits are well established as not subject to apportionment (see Sullivan On Comp section 12.27).

The employee would not need to establish the COVID-19 was industrially-related if he or she could prove an industrial component contributed to the death. Even if the employee was not working for the employer at the time of death from COVID-19, if the employee had an open award for industrial hypertension, lung disease or heart condition, the courts could potentially award benefits so long as the death was not barred by the statute of limitations under Labor Code § 5406.

An employee's non-industrial exposure to coronavirus which results in injury short of death could also result in additional liability for the employer. Medical treatment, temporary disability, and possibly even permanent disability benefits may be payable.

An employer is required to treat a nonindustrial condition if it is necessary to cure or relieve an employee from the effects of an industrial injury. Therefore, if an employee had an industrial lung disease, the employer could be required to treat the COVID-19 if the treatment was medically necessary to treat the industrial condition.

Likewise, if an industrial lung condition and non-industrial COVID-19 prevented the employee from returning to work, the employer could be liable for temporary disability benefits. This is because of the well-settled rule that temporary disability benefits are not apportioned. If the industrial lung condition was previously asymptomatic, the employer could be liable for any permanent disability caused by industrial factors.

Thus, despite the general rule that nonoccupational diseases are not compensable, the two exceptions are broad enough that many cases of COVID-19 will be deemed compensable.

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