Worker Advocates Push for COVID-19 Presumption in Golden State

Originally published by WorkCompCentral on April 17, 2020, Authored by Greg Jones

As cases of COVID-19 increase among essential California workers who don’t have the luxury of sheltering in place during the pandemic, some advocates are pushing for changes that will make it easier to receive workers’ compensation benefits for the disease caused by the new coronavirus.

California was the first state to shut down to try to minimize transmission of the virus, but more than a half-dozen states have already passed legislation or implemented executive orders that presume COVID-19 is an occupational condition for first responders and health care providers. The presumptions in some of those states also apply to people at grocery stores and pharmacies, auto repair shops and all other essential workers.

In California, for the time being, at least, workers have to prove that they were exposed to the new coronavirus in the course of employment.

Stephen Bussell, president of the Santa Rosa Police Officers’ Association, told the Santa Rosa Press-Democrat that the state needs to act soon to ensure that frontline workers are protected against lost wages if they get sick.

Nine police officers in Santa Rosa have contracted the disease, including Detective Marylou Armer, who died from the illness March 31.

Bussell said the Police Department is supportive of workers with COVID-19, but it’s difficult for first responders to document where they were exposed to the virus. Officers on patrol sometimes take people to the hospital and are otherwise in situations where they can encounter people carrying the virus, he said.

“Right now, we’re doing our best to document exposures,” he said. “It’s challenging to document and be accurate. But the likelihood that it happened at work is greater than not.”

Applicants’ attorney Alan Gurvey, managing partner of Rowen, Gurvey & Win, said he thinks it’s important for California to be proactive in protecting workers.

“Since California has been ahead of the game, at least relatively speaking, with respect to protecting the public in this state, it would be in everyone's best interests for emergency legislation to ensure that people exposed to COVID-19 are protected,” Gurvey said. “Honestly speaking, it is not asking too much and will not be too costly to insurance companies, necessarily, to ensure workers’ compensation coverage, notwithstanding the possible argument that one cannot with medical certainty prove causation of the circumstances of contraction.”

Most who contract the disease will recover without any work restrictions, limitations or impairment, he said. But a presumption would at least mean workers can collect temporary total disability benefits for lost time and receive medical treatment for the condition. And, in most cases at least, Gurvey said he doesn’t think medical or indemnity costs will be very high.

“The people who I am in touch with the coronavirus are simply quarantined and dealing with a lot of discomfort,” he said. “There are some, unfortunately, where the treatment will be costly and involve hospitalization. Even those who are hospitalized and recover for the most part will not have limitations, although some of them may have some permanent partial disability. The death cases, which hopefully are few and far between, would be governed by the laws of death benefits, which would mean there would essentially need to be dependents to recover.”

Gurvey also said he thinks the potential costs of COVID-19 claims would not outpace any savings that carriers and self-insured employers will realize as a result of fewer claims while Californians respect the stay-at-home orders and are not out in the traditional workforce.

Jerry Azevedo, a spokesman for the Workers’ Compensation Action Network, said some employers are already accepting workers’ compensation claims for COVID-19 in addition to providing sick and paid leave benefits.

He said the threshold issue is whether COVID-19 claims require a different standard, as well as the extent to which changing the standard will bring nonindustrial claims into the system.
“COVID-19 raises unique issues, including community transmission, long latency, asymptomatic carriers and a subset of workers who are continuing essential work,” Azevedo said. “It’s appropriate to have a conversation about how these issues get sorted out in the context of workers’ comp claims during this public health emergency. As with all presumptions, the question is whether we need a mechanism for work-related claims that aren’t getting accepted. Is that happening and what are the issues?”

The Workers’ Compensation Insurance Rating Bureau is already laying the groundwork to analyze the potential cost of a COVID-19 presumption in California, according to President and CEO Bill Mudge.

During the WCIRB’s Governing Committee meeting on April 8, Mudge said the bureau is already talking with research experts and industry leaders about the possible implications of such a presumption.

“We’re aware of an emerging groundswell for potential legislation regarding a diagnosis of coronavirus disease 19 as a presumptively compensable claim among certain potential worker segments,” Mudge said. “These conversations are occurring in California and similar states at the moment. And the WCIRB, as often is the case in matters of workers’ compensation pending legislation, will work with other experts and our committees to undertake a legislative evaluation of costs to the workers' comp system, should we be presented with a bill.”

It’s not clear when the majority of California lawmakers will return to Sacramento to resume the 2020 session. The Legislature is currently on recess until May 4, but members of the Senate Special Budget Subcommittee on COVID-19 Response met Thursday in the Capitol, and the Assembly Budget Subcommittee on Budget Process, Oversight and Program Evaluation is meeting to discuss COVID-19 response expenses Monday.

While workers in California will have to wait to see if the Legislature will approve a presumption, lawmakers and regulators in states including Alaska, Florida, Illinois, Kentucky, Michigan, Minnesota, Missouri, North Dakota and Washington have adopted some kind of presumption of compensability for COVID-19.

The International Association of Industrial Accident Boards and Commissions published a summary of state actions relating to the compensability of COVID-19 claims here.