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.

CASES OF PREVENTATIVE HEALTH CARE

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.

WHERE COVID-19 AGGRAVATES AN INDUSTRIAL CONDITION

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.

This principle of minimum causality goes hand in hand with the established principle that workers compensation benefits - with the exception of permanent disability - are not subject to apportionment. (The employer is not responsible for non-industrial sources of permanent disability due to the apportionment concept; see Sullivan On Comp 10.34 Apportionment –– Pre-Existing Disease or Condition.) Therefore where nonindustrial COVID-19 combines with an industrial condition to create the need for benefits, the employer is fully responsible for this increased need, whether it be for temporary disability, medical care, or death benefits. (See Sullivan On Comp sections 9.41 No Apportionment of Temporary Disability, 7.21 No Apportionment of Medical Care (See also 7.2 Scope of Care –– Cure or Relieve for a full discussion of this obligation)), and Sullivan On Comp section 12.27, respectively.) There is no apportionment; the employer pays full freight.

For example, if an employee had an industrial heart problem and the non-industrial COVID-19 combined with that problem to cause the employee to miss work, temporary disability benefits would be owed. If the heart problem needed treatment because of the aggravating effects of the COVID-19, the employer would be liable for that treatment. If the worker died from the heart problem because the COVID-19 aggravated it, the employer would be fully liable for death benefits.

TREATING COVID-19 AS A NECESSITY FOR TREATING INDUSTRIAL INJURY

It is also true that 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. That is, if it is necessary to treat a non-industrial condition to in order to treat an industrial condition, that treatment must be provided.

Take for example a case where a worker needed heart surgery on an industrial basis, but could not have the surgery because of non-industrial COVID-19. The COVID-19 is not aggravating the heart condition, it is just in the way of the surgery. The employer would be liable for the cost of treating the COVID-19 despite the fact that there was no aggravation, because the treatment was needed to treat the industrial condition.

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