Important: The status of the COVID-19 crisis constantly changes. The information in this resource is updated frequently.
 Actions

Nonindustrial COVID-19 Aggravates an Industrial Condition

From Navigating COVID-19

Revision as of 03:20, 14 April 2020 by EN>Surelog (→‎EMPLOYMENT AS A CONTRIBUTING CAUSE IN CASES OF COVID-19)

This file does not affect the Copyright Notice that actually appears on the site.


To update that Notice, submit a request to Bartsoz, who created the Wiki.

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

The other LaTourette[1] 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.,[2] 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."[3] 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."[4] 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.[5] 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).[6] 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.[7] 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."[8] 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 if there is an underlying industrial condition that combines - to any degree - with non-industrial COVID-19 to cause the need for the benefit. 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. 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 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. Medical treatment, temporary disability, and 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.[9] 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.[10] 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.

INDUSTRIAL COVID-19 AGGRAVATES NONINDUSTRIAL CONDITIONS

The same principles would apply if an employee contracts COVID-19 on an industrial basis, and the disease aggravates or accelerates a nonindustrial condition. If an employee with non-industrial hypertension, chronic lung disease, heart disease, or other condition dies as a result of COVID-19 which was contracted at work, then the employee's death would be compensable.

The employer would be required to treat any non-industrial conditions if the treatment was necessary to treat the industrially-related COVID-19. Furthermore, if an employee's industrially-related COVID-19 permanently aggravated a nonindustrial condition, the employer would be fully liable for the treatment without apportionment.[11]

However, the majority of people who contract COVID-19 only experience minor symptoms and fully recover. If the industrial injury or condition causes only a temporary exacerbation of a nonindustrial condition, and the employee fully recovers from the effects of the industrial, the employer is not liable for ongoing care of the nonindustrial condition.[12]

For example, in Reff v. Workers' Comp. Appeals Bd.,[13] the appeals board held that a nurse who contracted occupational pneumonia was not entitled to lifetime medical treatment for her pre-existing and dormant common variable immune deficiency (CVID) when it was only temporarily lit up by the occupational disease. The board explained that "if it is established that the medical treatment or medication in question is required separate and apart, or independent of, an industrial injury or condition, then the employer may avoid liability."[14] The board found the medical evidence established the industrial pneumonia temporary aggravated or lit up the non-industrial CVID condition for about two months. Consequently, it concluded there was no legal basis for a permanent award of medical treatment for the CVID condition.[15]

Therefore, if an employee contracts COVID-19 on an industrial basis and it temporarily exacerbates a non-industrial condition, the employer would be required to provide treatment during the temporary exacerbation. However, if the employee fully recovers from COVID-19 without any permanent aggravation of the non-industrial condition, the employer's liability for treatment of the non-industrial condition ceases. Ultimately, whether the COVID-19 temporarily exacerbates or permanently aggravates a non-industrial condition will be a medical issue.


  1. ↑ LaTourette v. Workers' Comp. Appeals Bd.(1998) 17 Cal.4th 644, 653.
  2. ↑ (1983) 33 Cal.3d 729.
  3. ↑ Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 734.
  4. ↑ Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 736.
  5. ↑ Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 737-738.
  6. ↑ (2015) 61 Cal.4th 291.
  7. ↑ South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 296.
  8. ↑ South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 300.
  9. ↑ Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159.
  10. ↑ Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 404.
  11. ↑ Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 405-406.
  12. ↑ See De La Tova v. Industrial Acci. Com. (1955) 137 Cal.App.2d 516.
  13. ↑ (2011) 76 Cal.Comp.Cases 1233 (writ denied).
  14. ↑ Reff v. Workers' Comp. Appeals Bd. (2011) 76 Cal.Comp.Cases 1233, 1236 (writ denied).
  15. ↑ Reff v. Workers' Comp. Appeals Bd. (2011) 76 Cal.Comp.Cases 1233, 1236 (writ denied).
Retrieved from "http://covid19.sullivanattorneys.com/ebook/index.php?title=Nonindustrial_COVID-19_Aggravates_an_Industrial_Condition&oldid=191"

GET IMPORTANT UPDATES

Michael Sullivan & Associates

Learn more about our services:

SullivanAttorneys.com

Workers’ Comp, Simplified.

Sullivan On Comp