Alleged Covid-19 Work-related Injury or Illness: a Guide to Determining When an Employer Must Provide a Claim Form

• Publication year: 2020
• Author: The Hon. Raymond F. Correio (Ret.)

Alleged COVID-19 Work-Related Injury or Illness: A Guide to Determining When an Employer Must Provide a Claim Form

The Hon. Raymond F. Correio (Ret.)

Gardena, California

Introduction

Under which circumstances does an employer have a duty to provide a DWC-1 claim form related to an alleged COVID-19 work-related injury or illness? There is clearly a need for guidance and clarification in this area, given the daily increase in the number of COVID-19 cases being reported throughout California at the time of this writing and the number of employees who have already filed COVID-19 workers' compensation claims. At the present time it is difficult to predict the number of employees who, in the foreseeable future, will file worker's compensation claims alleging they were exposed to or contracted COVID-19 as a result of their employment.

While the particular facts related to each alleged COVID-19 work-related illness or injury are unique and nuanced, an employer's duty to provide a claim form and notice of potential eligibility for benefits to an employee alleging a work-related COVID-19 illness is no different than in any other claimed or alleged industrial injury. With respect to an employer's duty to provide a claim form, the same statutes, regulations, and cases that were applicable before the current crisis still apply to any alleged work-related COVID-19 injuries and related illnesses. This is true even where the alleged COVID-19 injury may be subject to the temporary rebuttable presumption based on the Governor's executive order that became effective on May 6, 2020.

Some of the present confusion related to the duty to provide a claim form to an employee appears to be attributable to both employers and claims professionals putting the cart before the horse by attempting to prematurely determine the compensability of a COVID-19 industrial injury as opposed to isolating and focusing on when and under which circumstances the duty of the employer to provide a claim form is triggered.

Another factor contributing to the confusion in this regard is related to what are "recordable" or "reportable" COVID-19 work-related illness cases. As discussed in detail later in this article, the statutory threshold and criteria concerning an employer's duty to provide a claim form related to such an injury are completely different from the OSHA recording and reporting requirements related to such alleged work injuries. Therefore, it would be a mistake for California employers or their claims administrators to rely on the OSHA guidelines and regulations to determine whether they have a duty to provide a claim form to an employee who is asserting or alleging a COVID-19 work-related injury.

The Insidious Nature of COVID-19

What differentiates COVID-19 from some other communicable diseases both inside and outside the workplace is its insidious nature; that is, a disease developing so gradually as to be well established before becoming apparent. Unlike most communicable diseases characterized as nonoccupational, such as colds and the common flu, COVID-19 is a worldwide pandemic. Also, based on current medical and scientific literature, it appears that unlike many common communicable viruses and diseases, a person can contract the virus but remain asymptomatic or presymptomatic during the 2- to 14-day incubation period but still be capable of transmitting the disease and infecting other people. Scientists are still trying to quantify and determine the transmission risk regarding asymptomatic and presymptomatic individuals infected with the virus.

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As a consequence, unlike workplace environments or occupations that pose an inherently greater risk of employees contracting COVID-19, such as health care workers and first responders, in many seemingly benign workplace environments employees may be unknowingly exposed to an increased or a special risk of contracting COVID-19. Another problem with employees who have contracted COVID-19 but are presymptomatic or asymptomatic is they are frequently not being tested. Most states, including California, initially limited COVID-19 testing primarily to people who were already symptomatic and seeking medical care and treatment. COVID-19 testing has become more available over the last few months, but it is still almost impossible to know how many presymptomatic or asymptomatic people are going to work every day and may be unknowingly transmitting the virus to their coworkers and the public.

When Does an Employer Have a Duty to Provide a Claim Form Related to An Alleged Industrial Injury or Illness Due to COVID-19?

In California, fortunately, we can turn to a decision from the Supreme Court to provide us with guidance in interpreting and applying the applicable statutes and regulations. The following guidelines are based on the California Supreme Court's decision in Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2005) 70 Cal.Comp.Cases 97 and on subsequent case law interpreting and applying the Honeywell decision to a variety of facts and circumstances.

As a general rule, under Labor Code section 5400, except as provided in Labor Code sections 5402 and 5403, an injured worker cannot maintain a claim of industrial injury unless the employer has been given written notice of the injury within 30 days of its occurrence. One legal commentator described the written notice requirement of Labor Code section 5400 as a "weak reed for a defendant to rely upon" to defeat the employer's duty to provide a claim form. It is in Labor Code section 5402(a) that we find the exceptions or substitutes to the written notice requirement set forth in Labor Code section 5400. Labor Code section 5402(a) states as follows:

Knowledge of an injury, obtained from any source, on the part of an employer, or his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford the opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400. (Italics added.)

That's a lot of or's in a very short paragraph. However, as the Supreme Court in Honeywell indicated, if any of the elements in Labor Code section 5402(a) are satisfied, they are deemed substitutes for and are equivalent to the written notice Labor Code section 5400 requires, and they trigger the duty of an employer to provide a claim form. Labor Code sections 5400 and 5402 delineate the situations where an employer has a duty to provide a claim form.

Written Notice or Knowledge of Lost Time from Work or Medical Treatment Beyond First Aid

Within one working day of when the employer receives either written notice (Labor Code §5400) or knowledge of an injury "from any source" that has caused lost time from work "beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide" the employee, either personally or by first-class mail, with a workers' compensation claim form and notice of potential eligibility for benefits. In the event of death, the notice is provided to the employee's dependents (Labor Code §5401(a)). Labor Code section 5401(a) sets out in detail the definition of first aid as it relates to the employer's duty to provide a claim form.

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Knowledge of an Injury Asserted from Any Source

As Labor Code section 5402(a) states, knowledge of an injury "from any source" and "assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts" trigger the duty of an employer to provide a claim form. The case of Griffin v. County of San Bernardino, PSI, 2018 Cal.Wrk.Comp. P.D. LEXIS 13 provides an example.

In Griffin, a fire captain, by way of an Application for Adjudication, filed a cumulative trauma claim alleging hearing loss. Prior to filing his workers' compensation claim he filed a separate...