As we all look back on 2020 and look forward to 2021, everyone understandably breathes a sigh of relief. In the last year, news cycles went from bad news to worse with breakneck speed. What started with devastating fires in Australia quickly changed to a near-miss war between the United States and Iran before more fires in the United States and ultimately the domination of COVID-19.
The pantheon of atrocities was so broad that murder hornets barely made the news, and the attempted burning of federal buildings quickly became old hat.
COVID-19 ravaged the country and the world: death tolls, serious illness, hospitals at capacity, and, of course, the ripple effects. Just like natural disasters that take tolls not only during the disaster itself but also in the suffering and death that follows from lack of water, electricity, security, and access to medical care, COVID-19 had a cascade effect of its own. Businesses were crushed, employees were out of the job, and poverty became a second epidemic, trailing quickly on the coattails of the first.
But, as 2021 gets underway, vaccines are being broadly distributed, and soon COVID-19 will be contained, along with its effects on my corner of the world – workers’ comp litigation, right? Probably not. Remember – the universe revolves around folks like your learned author: attorneys. And while the spread of the disease might be checked by the vaccine, the lawsuits may not.
California enacted COVID-19 presumptions in workers’ compensation laws. In May, Governor Newsom issued EO-N-62-20, which sought to create several presumptions of industrial causation for COVID-19 contracted by employees working outside their homes. The Legislature soon codified the EO as SB 1159.
But as the vaccine leads to fewer carriers of COVID-19, will claims reduce in turn? Well, let’s imagine a scenario occurring with increased frequency in California – an employee is diagnosed with COVID-19 and files a workers’ compensation claim. The employer, well aware of the presumption laws and noticing that the young, healthy employee seems to be fine and back to work after just two weeks, accepts the claim. The world goes on. This employee, “Jack,” gets on with it.
The Family Catches It Too
But what happens when Jack, who so quickly recovered from COVID-19, managed to spread the disease to family members at home? Jack, the young, healthy employee could very easily have had any number of family members in high-risk categories, including but not limited to diabetes, obesity, old age, etc. Serious injury, hospitalization, or even death can result, as we have, sadly, seen over the last year.
None of those family members are likely to be Jack’s co-workers. The employer, without a fight, [presumed] admitted that the initial infection arose out of and occurred in the course of employment. Is it that hard to establish that Jack, who presumptively got COVID-19 at work and then came home, gave it to his family members or roommates as they sat around the table?
Another Shoe Drops
So now comes the second wave: Jack’s at home cohabitants explore their civil tort lawsuit options against Jack’s employer on a theory of negligence. Was Jack’s employer, understaffed? Was the Personal Protective Equipment inadequate? Did Jack’s employer fail to limit occupancy, whether in accordance with the law or just the “reasonable person” standard?
Now the employer, who had such modest liability for Jack’s infection of COVID-19 while at work, is being sued by Jack’s family for negligence. Perhaps by Jack as well for loss of consortium, loss of society, pain and suffering, the whole shmear as they say.
If this sounds at all familiar, it should. Asbestos litigation went on for years (and sometimes still does) for employees exposed to asbestos in the course and scope of their duties.
Often called “Secondary” or “Second Hand” Asbestos Exposure, family members of employees working with asbestos were sometimes exposed to the substance when employees unknowingly brought it home on their clothes.
Imagine the asbestos on a worker’s clothes as he comes through the front door, and his children run to greet him – tight and loving hugs shifting the asbestos from a soiled work shirt to clean pajamas to bedsheets to the child’s lungs.
That was the ruling in the California Supreme Court case of Kesner v. Superior Court of Alameda County, a 2016 decision. In Kesner, the Court considered the employer’s duty of care when “a worker who is directly exposed to a toxin [and] carries it home on his or her person or clothing, and a household member is in turn exposed through physical proximity or contact with that worker or the worker’s clothing.” The Court held that “the duty of employers … to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.” This extended “only to members of a worker’s household.”
Here We Go
So, let’s go back to the present and what to do. The first thing is to suck back in that sigh of relief – COVID-19 exposure, and the resulting litigation is unlikely to go away. The risk and exposure remain in waves of both workers’ compensation claims (for those that cannot or do not take the vaccine) and also from household members exposed and infected as discussed above. Unfortunately, “the Rona” has the potential to drag those precious few employers who can keep their doors open into Court.
Second, defendants must carefully consider how much complacency they will indulge when a workers’ compensation case alleging industrial COVID-19 exposure is claimed. When weighing whether to investigate and litigate or just process and pay, the “cons” side of the equation does not stop with the workers’ compensation act.
Does an employer want to admit that the COVID-19 exposure that killed grandma came from work?
Options to combat this include a thorough and prompt investigation: social media, medical history, and identifying potential other sources of infection. But this must be done promptly. While employer’s insurers normally have 90 days to determine whether to accept or deny a case, under SB 1159, that investigation period is sometimes limited to 30-45 days, depending on the circumstances.
In addition to a well-grounded and timely denial, employers should consider settling relatively minor COVID-19 claims with a Compromise and Release that include what is commonly referred to as a “Thomas” finding.
From Thomas v. Sports Chalet, a “Thomas” finding typically allows parties to settle a California workers’ compensation claim without a final determination on the cause, or even existence of, a compensable claim. In the face of a subsequent civil suit by an employee’s family member, the Thomas finding would ideally leave the burden of proving causation resulting from exposure at work on the civil tort plaintiff, rather than presuming it from an accepted workers’ compensation case.
Finally, and this really should be the rule for all workers’ compensation cases, the employer should have active involvement in the workers’ compensation claim. Active employer participation allows the adjuster (and defense attorney, not unlike your author) greater odds of identifying and supporting a basis to deny or mitigate the claim.
Further, such participation allows the employer to have any documents that would help counter a companion civil suit. Unfortunately, with all the burdens placed on employers in California, some are forced to take the approach of forwarding a reported claim to the broker and adjuster and then directing energy and attention elsewhere.
In short, while the new year is upon us, a lot of what made the last year as “news-worthy” as it was did not disappear at the stroke of midnight on December 31. COVID-19, even should there be a wide-spread deployment of vaccination, continues to cause symptoms of litigation and liability.
Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Gregory Grinberg, Esq. is one of California’s premier workers’ comp defense attorneys. He is a managing partner of GALE, SUTOW & ASSOCIATES, APC.