COVID-19 Update from Dietz, Gilmor & Chazen – Executive Order N-62-20, Non-Presumption Claims, and WCAB News
EXECUTIVE ORDER N-62-20, ISSUED AND EFFECTIVE 05/06/2020
Covered dates of potential exposure – 03/19/2020 – 07/05/2020.
Temporary rebuttable presumption of injury AOE/COE for an employee’s COVID-19-related illness if:
The work was performed on or after 03/19/20.
The employee was directed by the employer to perform work at a location other than the employee’s home.
The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee worked at the employer’s direction.
A California-licensed physician made the initial diagnosis, and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
Period to reject claim is shortened to 30 days from date of filing of claim form.
If not rejected within the 30-day period, the claim is presumed compensable, unless rebutted by evidence only discovered after the 30-day period.
All workers’ compensation benefits, including death benefits, available.
Permanent disability is subject to apportionment.
If employee has paid sick leave (PSL) benefits specifically available in response to COVID-19, those benefits must be exhausted before any TD or LC 4850 benefits will be due and payable.
No waiting period for TD.
For TD before 05/06/2020 – If the employee tested positive or was diagnosed with COVID-19 before 05/06/2020, then by 05/21/2020, employee must obtain a certification documenting the period for which the employee was TD and unable to work, and must be re-certified every 15 days thereafter, for the first 45 days after the diagnosis.
For TD after 05/06/2020 – If the employee tests positive or is diagnosed with COVID-19 on or after 05/06/2020, the employee must be certified for TD within the first 15 days after the initial diagnosis, and must be re-certified every 15 days thereafter, for the first 45 days after the diagnosis.
The physician certifying TD must hold a California physician and surgeon license.
The Department of Industrial Relations is precluded from collecting any death benefit payment arising out of claims covered by the Order.
The Order applies to workers’ compensation insurers writing policies that provide coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California.
If an employee tested positive or was diagnosed with COVID-19 between 03/19/2020 to the present, after working at the employer’s direction at a location other than the employee’s residence, provide a claim form to the employee as soon as possible, if not done previously.
Going forward up to and including 07/19/2020 (14 days after the last date of the Order’s specified exposure period), provide a claim form within 24 hours of obtaining knowledge, from any source, that employee tested positive for or was diagnosed with COVID-19 after working at the employer’s direction at a job site that is not the employee’s residence.
PROVIDING CLAIM FORMS TO EMPLOYEES NOT COVERED BY THE ORDER
A blanket approach to providing claims forms during the pandemic is not recommended. An employee is likely to think the form must be completed and filed, even if he or she has not been exposed to the coronavirus. Once the claim form is filed, a claim is created, which triggers rights and obligations. The resulting flood of claims would be highly burdensome.
Here are some guidelines that should help:
A claim form must be provided if an employee asks for one.
A claim form must be provided if an employer receives knowledge, from any source, that (1) the employee was diagnosed with COVID-19 and (2) either it is work-related, or the employee is claiming it is work-related.
If a claim form is not required to be provided, consider the nature of the employee’s work, the work environment (working remotely?), whether the employee has actually tested positive for the novel coronavirus or been diagnosed with COVID-19, whether the employee has health insurance, and any factors unique to the situation. The facts may weigh in favor of providing a claim form.
Reminder for Employers:
Providing a claim form does not mean acceptance of the claim.
COMPENSABILITY OF COVID-19 CLAIMS FILED BY EMPLOYEES NOT COVERED BY THE EXECUTIVE ORDER
If the new presumption of injury AOE/COE does not apply to a claim, an employee can litigate injury AOE/COE.
Normally, no exposure for WC benefits for non-occupational diseases, which is what COVID-19 is, since the novel coronavirus is found throughout the world and can affect anyone, not just employees.
The employee will prevail if there is substantial evidence that his or her risk of exposure to the novel coronavirus was probably higher than the general public’s. (Note: scientific certainty is not required to be proven.)
Compensability can extend to injuries from the side effects of medications or procedures used to treat COVID-19, not just injuries from the direct damage wrought by the novel coronavirus.
NON-COVID-19 INJURIES TO EMPLOYEES WORKING FROM HOME WHILE STAY-AT-HOME ORDER IS EFFECTIVE
If employer has directed employee to work from home, or given permission, then the employee’s home becomes a second job site, and employer benefits from employee’s services, so injury at home will probably be compensable.
The personal comfort doctrine is another theory that will support compensability of an injury such as slipping and falling in the bathroom.
WCAB NEWS The Boards remain closed to the public at this time. Hearings, now including case-in-chief trials, are being conducted telephonically by calling the WCJs’ telephone conference lines. Documents are to be filed electronically via EAMS or JET File or paper filing by U.S. Mail. (If none of those filing procedures will work, email filing is a last resort.) To learn the latest changes in WCAB policies and procedures, you can check for news releases at https://www.dir.ca.gov/dirnews
Media Contacts: Company Name: Dietz, Gilmor & Chazen, APC Industry: California workers’ compensation defense Full Name: David Jankosky, DGC Client Services Email Address: email@example.com