Corona Virus As Work Injury
The current concerns over the highly infectious nature of Covid-19 (Novel Corona Virus) have begged the question: “Am I able to collect Workers Comp benefits in California if I get Corona Virus, influenza, pneumonia, etc. ?” What benefits may be available?
In California, in order to recover Workers Compensation for an injury or illness, the employee has the burden of proving that the injury occurred both in the course of the employment and it arose out of the employment. The test for whether an injury arose of the employment is to ask “but for the job, would the injury have occurred?” In the case of infectious disease like Corona virus, where we are experiencing so called “community spread,” absent special circumstances it may be nearly impossible for an employee to establish, within reasonable medical probability, that he or she contracted the illness at work as opposed to anywhere else. This is true for most other infectious respiratory illnesses, but not always.
In 1929, the California Supreme Court held in Pattiani v. Industrial Accident Commission., that the employee needs to be able to establish a probable connection between contracting the illness and the exposure at work. The employee may be able to establish that the nature of the work subjects the employee to a very special exposure beyond the exposure to the general public, hence supporting a conclusion that the illness arose out of the employment. This rule has been applied to decisions in cases that have dealt with influenza, HIV, tuberculosis and a host of other contagious or infectious medical nightmares. Bethlehem Steel Co. v. Industrial Acci. Com., 8 Cal. Comp. Cases 61, 1943 Cal. Wrk. Comp. LEXIS 246, 21 Cal. 2d 742, 135 P.2d 153 (Cal. March 19, 1943); Federal Ins. Co. v. Workers Compensation Appeals Bd., 60 Cal. Comp. Cases 422, 1995 Cal. Wrk. Comp. LEXIS 3607 (Cal. App. 1st Dist. April 20, 1995) Jacobs v. Western Mun. Water Dist., PSI, administered by ACWA Joint Powers Ins. Auth., 2011 Cal. Wrk. Comp. P.D. LEXIS 74
Clearly, there is an inference (which will need to be supported by factual evidence in any given case) that healthcare workers who are exposed to a particular pathogen, beyond exposure to the general public (such as those who work directly with Corona Virus patients or those who handle the test kits) may be able to establish compensability if they become ill. The same may be true for workers in other employments where the job site has become the host of an unusually high concentration of Covid-19 victims in close quarters and where the statistical incidence of the illness is significantly higher than in the surrounding community. In addition, subject to expert testimony, worksites (such as offices) with poor environmental control may afford an employee the opportunity to establish a weakened immune system leading to the acquisition of and illness that would not have occurred otherwise, although this would be very difficult to establish.
For a survey of benefits that may be available, go to www. /Benefits-You-May-Be-Entitled-To/