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

Difference between revisions of "Nonindustrial COVID-19 Aggravates an Industrial Condition"

From Navigating COVID-19

EN>Surelog
 
(54 intermediate revisions by 8 users not shown)
Line 1: Line 1:
−
{{template:Copyright Notice}}
+
<center>
 +
{| class="wikitable"
 +
! [[The Basic Rule — Increased Risk and the General Public|< Previous ]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[Industrial COVID-19 Aggravates Nonindustrial Conditions| Next >]]
 +
|-
 +
|}
 +
</center>
  
−
==INDUSTRIAL CONDITION AS A CONTRIBUTING CAUSE TO NON-INDUSTRIAL COVID-19==
+
----
  
−
The other ''LaTourette''<ref>''LaTourette v. Workers' Comp. Appeals Bd.''(1998) 17 Cal.4th 644, 653.</ref> 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.
+
__TOC__
  
−
For example, in ''Maher v. Workers' Comp. Appeals Bd.'',<ref>(1983) 33 Cal.3d 729.</ref> 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."<ref>''Maher v. Workers' Comp. Appeals Bd.'' (1983) 33 Cal.3d 729, 734.</ref> 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."<ref>''Maher v. Workers' Comp. Appeals Bd.'' (1983) 33 Cal.3d 729, 736.</ref> 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.<ref>''Maher v. Workers' Comp. Appeals Bd.'' (1983) 33 Cal.3d 729, 737-738.</ref> For further discussion, see [[5.9|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).''<ref>(2015) 61 Cal.4th 291.</ref> 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.<ref>''South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark)'' (2015) 61 Cal.4th 291, 296.</ref> 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."<ref>''South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark)'' (2015) 61 Cal.4th 291, 300.</ref> 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 [[12.2|Sullivan on Comp Section 12.2]].
+
As explained previously in ''LaTourette,''<ref>''LaTourette v. Workers' Comp. Appeals Bd.''(1998) 17 Cal. 4th 644, 653.</ref> the Supreme Court defined two exceptions to the general rule that nonoccupational diseases (such as COVID-19) are not compensable. The second exception concerns cases in which the immediate cause of the injury is an "intervening human agency or instrumentality of employment." That language is confusing, but seems to mean that the employment itself somehow contributed to the cause of the injury.  
  
−
===EMPLOYMENT AS A CONTRIBUTING CAUSE IN CASES OF COVID-19===
+
==Cases of Preventive Health Care==
  
−
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.  
+
An example of the exception was established in ''Maher v. Workers' Comp. Appeals Bd.''<ref>(1983) 33 Cal. 3d 729.</ref> The Supreme Court held then 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."<ref>''Maher v. Workers' Comp. Appeals Bd.'' (1983) 33 Cal. 3d 729, 736.</ref> 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, rendering her injury AOE/COE.<ref>''Maher v. Workers' Comp. Appeals Bd.'' (1983) 33 Cal. 3d 729, 737-738.</ref> For further discussion, see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/5.9 Section 5.9 Occupational Disease].
  
−
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 most direct application of ''Maher'' would involve a situation in which 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.  
  
−
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|12.27 No Apportionment of Death Benefit]]).  
+
Since ''Maher,'' Labor Code § 3208.05 was enacted. It defines "injury" as a reaction to or a side effect from health care provided by an employer to a health-care worker that is intended to prevent the development or manifestation of any bloodborne disease, illness, syndrome or condition. That statute essentially extends the rule in ''Maher'' for any injury sustained by a health-care worker as a result of preventive health care provided by an employer.
  
−
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.
+
==When COVID-19 Aggravates an Industrial Condition==
  
−
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.  
+
As noted above, "intervening human agency or instrumentality of employment" is confusing language. It could be viewed to mean that any work-related causal factor might be enough to establish industrial injury.
  
−
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.<ref>''Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton)'' (1983) 34 Cal.3d 159.</ref> 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.
+
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.<ref>''Smith v. Workers' Comp. Appeals Bd.'' (1969) 71 Cal. 2d 588, 592.</ref> 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."<ref>''Lamb v. Workmen's Comp. Appeals Bd.'' (1974) 11 Cal. 3d 274, 282.</ref>
  
−
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.<ref>''Granado v. Workmen's Comp. App. Bd.'' (1968) 69 Cal.2d 399, 404.</ref> If the industrial lung condition was previously asymptomatic, the employer could be liable for any permanent disability caused by industrial factors.
+
For example, in ''South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark),''<ref>(2015) 61 Cal. 4th 291.</ref> 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 others by his personal doctor. The qualified medical evaluator (QME) reported that the industrial component was the “minimum level of causation,” colorfully equating it to a couple of crumbs off the crust of 12-inch pie.<ref>''South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark)'' (2015) 61 Cal. 4th 291, 296.</ref> Nevertheless, the court believed that it was enough to award death benefits.
  
−
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.  
+
The Supreme Court explained that for the purposes of causation in workers' compensation, it's 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."<ref>''South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark)'' (2015) 61 Cal. 4th 291, 300.</ref> 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" [https://app.sullivanoncomp.com/soc/index/title/12.2 Section 12.2 Compensability –– Employee Death].
  
−
===INDUSTRIAL COVID-19 AGGRAVATES NONINDUSTRIAL CONDITIONS===
+
Because only a minimal causation is required, an employer might be liable if there is an underlying industrial condition that combines –– to any degree –– with nonindustrial COVID-19 to cause disability or death. The evidence indicates that people with pre-existing 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, the employer probably would be liable for death benefits.
  
−
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 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 nonindustrial sources of permanent disability due to the apportionment concept; see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/10.34 Section 10.34 Apportionment –– Pre-Existing Disease or Condition].) So, if nonindustrial COVID-19 combines with an industrial condition to create the need for benefits, the employer is fully responsible for the increased need, whether it's for temporary disability, medical care or death benefits. (See "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/9.41 Section 9.41 No Apportionment of Temporary Disability], [https://app.sullivanoncomp.com/soc/index/title/7.21 Section 7.21 No Apportionment of Medical Care], [https://app.sullivanoncomp.com/soc/index/title/7.2 Section 7.2 Scope of Care –– Cure or Relieve] for a full discussion of this obligation, and [https://app.sullivanoncomp.com/soc/index/title/12.27 Section 12.27 No Apportionment of Death Benefit], respectively.)<ref>See also''Granado v. Workmen's Comp. App. Bd.'' (1968) 69 Cal.2d 399, 404.</ref> There is no apportionment –– the employer pays full freight.
  
−
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.<ref>''Granado v. Workmen's Comp. App. Bd.'' (1968) 69 Cal.2d 399, 405-406.</ref>
+
For example, if an employee had an industrial heart problem and the nonindustrial 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.
  
−
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.<ref>See ''De La Tova v. Industrial Acci. Com.'' (1955) 137 Cal.App.2d 516.</ref>
+
==Treating COVID-19 as a Necessity for Treating Industrial Injury==
  
−
For example, in ''Reff v. Workers' Comp. Appeals Bd.'',<ref>(2011) 76 Cal.Comp.Cases 1233 (writ denied).</ref> 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."<ref>''Reff v. Workers' Comp. Appeals Bd.'' (2011) 76 Cal.Comp.Cases 1233, 1236 (writ denied).</ref> 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.<ref>''Reff v. Workers' Comp. Appeals Bd.'' (2011) 76 Cal.Comp.Cases 1233, 1236 (writ denied).</ref>
+
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.<ref>''Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton)'' (1983) 34 Cal. 3d 159.</ref> That is, if it is necessary to treat a nonindustrial condition in order to treat an industrial condition, the treatment must be provided.  
  
−
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.  
+
Take, for example, a hypothetical case in which a worker needed heart surgery on an industrial basis, but could not have the surgery because of nonindustrial COVID-19. The virus was not aggravating the heart condition, it was just in the way of the surgery. The employer could 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.
  
 +
==See Also==
  
 +
* [[The Basic Rule — Increased Risk and the General Public]]
 +
* [[Industrial COVID-19 Aggravates Nonindustrial Conditions]]
 +
* [[State, County and City Orders Applicable to Large Employers]]
  
 +
==References==
 
<references/>
 
<references/>
  
−
[[Category:Pre-Publication]]
+
----
 +
 
 +
 
 +
<center>
 +
{| class="wikitable"
 +
! [[The Basic Rule — Increased Risk and the General Public|< The Basic Rule — Increased Risk and the General Public]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[Industrial COVID-19 Aggravates Nonindustrial Conditions| Industrial COVID-19 Aggravates Nonindustrial Conditions >]]
 +
|-
 +
|}
 +
</center>

Latest revision as of 00:04, 20 January 2024

< Previous Table of Contents Next >


As explained previously in LaTourette,[1] the Supreme Court defined two exceptions to the general rule that nonoccupational diseases (such as COVID-19) are not compensable. The second exception concerns cases in which the immediate cause of the injury is an "intervening human agency or instrumentality of employment." That language is confusing, but seems to mean that the employment itself somehow contributed to the cause of the injury.

Cases of Preventive Health Care

An example of the exception was established in Maher v. Workers' Comp. Appeals Bd.[2] The Supreme Court held then 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."[3] 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, rendering her injury AOE/COE.[4] For further discussion, see "Sullivan on Comp" Section 5.9 Occupational Disease.

The most direct application of Maher would involve a situation in which 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. It defines "injury" as a reaction to or a side effect from health care provided by an employer to a health-care worker that is intended to prevent the development or manifestation of any bloodborne disease, illness, syndrome or condition. That statute essentially extends the rule in Maher for any injury sustained by a health-care worker as a result of preventive health care provided by an employer.

When COVID-19 Aggravates an Industrial Condition

As noted above, "intervening human agency or instrumentality of employment" is confusing language. It could be viewed to mean that any work-related causal factor might 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.[5] 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."[6]

For example, in South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark),[7] 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 others by his personal doctor. The qualified medical evaluator (QME) reported that the industrial component was the “minimum level of causation,” colorfully equating it to a couple of crumbs off the crust of 12-inch pie.[8] Nevertheless, the court believed that it was enough to award death benefits.

The Supreme Court explained that for the purposes of causation in workers' compensation, it's 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."[9] 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 Compensability –– Employee Death.

Because only a minimal causation is required, an employer might be liable if there is an underlying industrial condition that combines –– to any degree –– with nonindustrial COVID-19 to cause disability or death. The evidence indicates that people with pre-existing 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, the employer probably would be liable for death benefits.

The 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 nonindustrial sources of permanent disability due to the apportionment concept; see "Sullivan on Comp" Section 10.34 Apportionment –– Pre-Existing Disease or Condition.) So, if nonindustrial COVID-19 combines with an industrial condition to create the need for benefits, the employer is fully responsible for the increased need, whether it's for temporary disability, medical care or death benefits. (See "Sullivan on Comp" Section 9.41 No Apportionment of Temporary Disability, Section 7.21 No Apportionment of Medical Care, Section 7.2 Scope of Care –– Cure or Relieve for a full discussion of this obligation, and Section 12.27 No Apportionment of Death Benefit, respectively.)[10] There is no apportionment –– the employer pays full freight.

For example, if an employee had an industrial heart problem and the nonindustrial 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

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.[11] That is, if it is necessary to treat a nonindustrial condition in order to treat an industrial condition, the treatment must be provided.

Take, for example, a hypothetical case in which a worker needed heart surgery on an industrial basis, but could not have the surgery because of nonindustrial COVID-19. The virus was not aggravating the heart condition, it was just in the way of the surgery. The employer could 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.

See Also

References

  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, 736.
  4. ↑ Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal. 3d 729, 737-738.
  5. ↑ Smith v. Workers' Comp. Appeals Bd. (1969) 71 Cal. 2d 588, 592.
  6. ↑ Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal. 3d 274, 282.
  7. ↑ (2015) 61 Cal. 4th 291.
  8. ↑ South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal. 4th 291, 296.
  9. ↑ South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal. 4th 291, 300.
  10. ↑ See alsoGranado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 404.
  11. ↑ Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal. 3d 159.


< The Basic Rule — Increased Risk and the General Public Table of Contents Industrial COVID-19 Aggravates Nonindustrial Conditions >
Retrieved from "http://covid19.sullivanattorneys.com/ebook/index.php?title=Nonindustrial_COVID-19_Aggravates_an_Industrial_Condition&oldid=4712"

GET IMPORTANT UPDATES

Michael Sullivan & Associates

Learn more about our services:

SullivanAttorneys.com

Workers’ Comp, Simplified.

Sullivan On Comp