By Brendan B. Rochford and Adam Hahn
Mastagni Holstedt, A.P.C.
It is a gross understatement to say the pandemic caused by the coronavirus disease (COVID-19) is impacting almost every aspect of Californian lives, including how we live and work. Nowadays, every cough, runny nose and even headache can make a person wonder if they have contracted this virus. To make matters worse, our first responders and front-line medical personnel continue to perform their essential services to our communities while most Californians are under the protection of a public health directive to shelter in place.
While the general public shelters in place, our first responders face a mounting risk of exposure to COVID-19. This public health crisis is transforming into an ever-expanding first responder crisis as peace officers, firefighters and medical personnel contract the virus as they perform their essential services. Given these facts, the logical question is: What will happen to our first responders if — and when — they contract COVID-19? Does California have a plan for them?
Workers’ Compensation Overview
The purpose of workers’ compensation is to provide monetary and medical benefits to people who become injured while working in the course and scope of their job duties. Part of the duty of workers’ compensation is to separate work-related from non-work- related claims. In the context of a disease such as COVID-19, this becomes very difficult to do in practice. One of the most important questions we can ask is whether the first responder experienced any increased risk of exposure to COVID-19 when compared to the general population. We know that first responders typically encounter a wide variety of exposures at work, including but not limited to bodily fluids, sneezing, coughing and the unavoidable touching of unclean surfaces. However, so far there has been inadequate formal guidance from the state of California as to whether any workers’ compensation presumptions would apply to our first responders in the event of a confirmed COVID-19 infection.
Establishing Causation of Injury: First Responder Presumptions
The presumptions contained in the California Labor Code help make it easier for first responders to receive benefits in their claims. They accomplish this by making it easier to prove that the injury is related to work duties. Therefore, first responders who sustain injuries that are difficult to prove are more likely to receive benefits with a presumption than they would be if no presumption existed. It is for this reason that first responder advocates, such as the Peace Officers Research Association of California, the California Professional Firefighters Association and the Fraternal Order of Police, have pressed California Governor Gavin Newsom to approve emergency legislation designed to create a COVID-19 presumption. Thus far, these efforts have proven unfruitful.
In the absence of a presumption, the burden is on the injured first responder to prove that they were at a greater risk of exposure to COVID-19 at the time they contracted the illness. The first responder should attempt to establish a record of known or suspected exposure to COVID-19 at work. This evidence may include information as to the time of the exposure, the location of the exposure, the mechanism of transmission, if known, and any other knowledge or observation of COVID-19 symptomatology present at the workplace. This information must be communicated to the employer as well.
In addition to providing information about any potential exposure to COVID-19, the injured first responder must provide medical evidence that they have actually sustained an infection. The preference is medical testing. However, in the absence of test results, there will need to be a diagnosis from a licensed physician of a suspected COVID-19 case. In addition to the diagnosis itself, relevant medical information includes any medical evidence that tends to show that COVID-19 was accelerated, aggravated or precipitated by job duties.
The bottom line is that establishing a causal relationship generally requires a qualified physician’s opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to your employment. This opinion must be based on a complete factual and medical background. However, the ubiquity of COVID-19 presents unique challenges to the standard causation formula. How consistently can we prove the circumstance of work-related exposure to COVID-19 in an environment where the virus is known to be extremely contagious, relatively unseen and transmitted by vectors we are only beginning to fully comprehend? The fear is that, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders, despite their daily heroism on the front lines of this disease.
The Future of Workers’ Compensation for First Responders in the Era of COVID-19
While we applaud the tireless efforts of those organizations presently lobbying the state of California for a COVID-19 presumption for first responders, we must also begin thinking about more immediate solutions to this crisis. The collective response of the state of California at various levels of government, via policy implementation and collective bargaining, has widely varied from department to department. Unfortunately, so far, it has not been enough. While emergency leave is typically being provided to a limited extent, there are larger concerns over the medical costs, lost future earning capacity and even death benefits, which can be just as important to the injured first responder, or their family, as compensation for lost wages while recovering from the disease. Without the full support of Governor Newsom and the California government, we ask our state’s first responders not only to accept an increased risk of infection of this virus, but also, even after infection, to shoulder the economic and physical burdens of treating, recovering and living with this disease as a result of their courage.
Brendan B. Rochford and Adam Hahn provide workers’ compensation representation to first responders with Mastagni Holstedt, A.P.C. Brendan predominantly practices in the area of workers’ compensation out of their southern office in Rancho Cucamonga, while Adam works out of the Sacramento office. The Mastagni law firm provides comprehensive legal services for all first responders in California, including, but not limited to, labor and employment, contract negotiation, civil litigation and workers’ compensation matters. All questions and inquiries should be directed to their main office, which can be reached by calling (916) 446-4692.