COVID-19, Fear in the Workplace, and Psychiatric Workers Compensation Claims

by Michael P. Burns (May 26, 2020)
One side effect of the coronavirus pandemic that defendants will have to face is psychiatric claims filed by applicants who allege that the fear of contracting the virus at work has caused industrial depression or anxiety.

The COVID-19 pandemic has naturally raised concerns about employee safety, particularly as California businesses begin reopening. Employees returning to work are likely to have concerns about workplace safety. Employers are taking steps to address these concerns, including providing personal protective equipment and implementing strict hygiene standards. But workers’ compensation insurers may face claims from employees who, although not infected, are fearful about their health when returning to work. These fears will likely result in psychiatric illness workers' compensation claims.

A particular area of concern involves employees who deal regularly with the general public, such as cashiers and bank tellers. May these employees successfully pursue a psyche claim due to the stress and fear of possible infection, without ever actually contracting COVID-19?

When to Provide a Claim Form Under Gov. Newsom’s Presumption

by Louis A. Larres and Zane P. Uribarri (May 21, 2020)

With our lives changing daily, it is important that we keep up on the additions to California law designed to help society through these challenging times. One recent and important change in workers’ compensation law took place on May 6th when the governor issued an executive order creating presumption of industrial injury in certain COVID-19 cases.

In this article, we will look at the legal implications created by the May 6, 2020 executive order issued by California Governor Newsom. The order gives rise to a presumption of industrial causation for COVID-19 claims which occur after March 19, 2020. It is important to note that the order itself does not address the notice requirements an employee must satisfy to trigger the employer’s duty to provide the claim form.

While the order solely addresses the issue of causation by means of a presumption which is designed to ease an employee’s burden of proof, if the presumption requirements are met, the employer could be imputed with knowledge sufficient to implicate its duty to provide the claim form. In drawing that conclusion, bear in mind that the act of providing the claim form is in no way an admission that the injury is work-related and the presumption is still rebuttable.

Covid-19: Multiple Employers over 14 Days (Who's Liable?)

by Donald R. Barthel and John P. Kamin (May 19, 2020)

Per Governor Newsom's recent Executive Order (EO) issued on May 6th, employees who have a positive test result or diagnosis of COVID-19 within 14 days of performing work somewhere other than home at the direction of their employer may enjoy a broad rebuttable presumption that the infection is industrial. While there are other requirements (diagnosis must have been performed by "a physician who holds a physician and surgeon license issued by the California Medical Board”, dates of injury must occur from May 6, 2020 through July 5, 2020, etc), the requirements that the labor or services be performed "at the employee’s place of employment at the employer’s direction" seems clear.

But any good attorney can turn otherwise clear EOs into mush as clear as mud by asking questions, such as:
    What can an employer do about an employee who tests positive, but has worked for two employers in the last fourteen days? How do you determine who is responsible?

En Banc Ruling Relaxes Timeline for Exhibit Filing

by Joseph D. Votroubek (May 12, 2020)

The WCAB has issued a unanimous en banc decision relaxing the rules on timely filing of trial exhibits during the current pandemic.

In an en banc decision titled In Re: Covid-19 State of Emergency En Banc – No.3 Case No. Misc. No.262, the WCAB has ruled that during the state of emergency,

    “…there is good cause to permit receipt into evidence of documents not filed 20 days prior to trial. Therefore, we will also order suspension of the 20 day requirement in WCAB Rule 10670(b)(3). A workers’ compensation administrative law judge retains the authority to decline to receive documents in evidence as otherwise permitted by WCAB Rule 10670(b) and the law.”

    This order will remain in effect until further notice.”

Governor Issues Rebuttable Presumption Applicable Through July 5

by John P. Kamin (May 7, 2020)

Gov. Gavin Newsom created a broad rebuttable presumption that COVID-19 claims are industrial on May 6, which applies to a larger class of workers than originally thought.

The governor announced an executive order creating the rebuttable presumption during a mid-day news conference about the plan to reopen California.

So what does the presumption say?

Legislative Update: “Critical Worker” Presumption Could Create More Litigation

by John P. Kamin (May 5, 2020)
California lawmakers have proposed a rebuttable presumption that “critical workers” COVID-19 claims be presumed compensable, which could create unnecessary litigation if the specific terminology of the bill is not clarified.

State Sen. Gerald Hill (D-San Mateo), and Assemblyman Tom Daly (D-Anaheim) amended SB 1159 on April 22 to create the newly-proposed presumption. Perhaps the most important element of the presumption to note is that it is “rebuttable,” which means that if you can show that something nonindustrial caused the virus, then you can defeat the presumption that it is work-related.

The proposed bill would create a presumption that would apply to “critical workers,” which are defined as “someone who is employed to combat the spread of the virus.”
Who are critical workers? According to the bill’s language, they are:
  • Someone who is in the service of an “essential critical infrastructure employer.”
  • A public sector or private sector employee who is “employed to combat the spread of COVID-19.”
To put it simply, this is a little too vague in this blogger’s opinion. Why?