Nonindustrial COVID-19 Aggravates an Industrial Condition

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INDUSTRIAL CONDITION AS A CONTRIBUTING CAUSE TO NON-INDUSTRIAL COVID-19

The other LaTourette exception to the noncompensability of nonoccupational diseases exists when the immediate cause of the injury is an intervening human agency or instrumentality of employment. While this language may be confusing, it can be simplified to the idea that an injury or illness is compensable if the employment was a contributing cause.

For example, in Maher v. Workers' Comp. Appeals Bd., 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. The Court cited the long established rule that "an employer takes the employee as he finds him at the time of the employment." It added, "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.

This exception was further applied in the case of South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark). In that case, 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.

EMPLOYMENT AS A CONTRIBUTING CAUSE IN CASES OF COVID-19

Based on this exception, an employer may be liable for treatment or death, even if the coronavirus exposure was non-industrial. The most direct application pursuant to Maher would involve a situation where a healthcare worker suffers injuries from the side effects of medication used to treat or prevent COVID-19. However, this exception has wide ranging application and consequences for employers.

Because only a minimal causation is required, a connection can often be made, and thus an employer may be liable for, medical care, temporary disability or death benefits if there is an underlying industrial condition that combines - to any degree - with non-industrial COVID-19 to cause the need for the benefit. For example, person with a heart condition which is has been found industrial has that condition aggravated by non-industrial COVID-19 and dies, or just need other benefits. The underlying industrial injury may be characterized as a causal instrumentality of employment under this standard, and thus the employer has liability.

Actually, this combination of industrial and non-industrial causes is common in California worker's compensation.

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. Death benefits are well established as not subject to apportionment (see Sullivan On Comp section 12.27 No Apportionment of Death Benefit).

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. For example, 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.

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.