RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – DETERMINING AN OCCUPATIONAL DISEASE INJURY DATE WHEN ALL THE DAYS JUST BLEED INTO ONE

FROM MY BAR AT HOME:

Summer days always have a tendency to blend together. When the kids are out of school and spending the day by the pool or chasing bubbles at the park, time seems to just slip by. But this summer (really most of this year) is particularly Groundhog Day-ish, with each day very much resembling the one that came before due to the ongoing safer-at-home measures and social distancing.1

On one of these summer days (who knows which one) my favorite adjuster, Ned Ryerson, called me up on the phone. He breathlessly told me that his first COVID-19 claim had passed his desk and he wanted some advice about whether to admit or deny the claim.

The claim had been filed as a specific injury. It seemed very unlikely to Ned that the applicant had contracted the virus on the exact date they alleged in their Application, particularly since it can take some people close to two weeks before they even begin to exhibit symptoms, and he wanted to know if he could deny the claim on that basis. He exclaimed, “How on earth could the applicant know exactly what day they were exposed?!”

While I appreciate the vigor with which Ned investigates his claims, and as much as I hate to be the bearer of bad news, it was my duty to tell him I didn’t think that strategy would get him very far. I sent him a copy of a panel decision which issued on January 13, 2020, Nate Leggette v. CPS Security, 2020 Cal. Wrk. Comp. P.D. LEXIS 3.2 Although the holding issued in January when many of us were still happily attending parades and licking doorknobs, the reasoning would likely apply to our current COVID-19 world.

In Leggette the applicant worked as a security guard at a construction site bordered on two sides by standing bodies of water, where he was bitten by mosquitos nightly while on the job. He ultimately was hospitalized for West Nile Virus and filed an Application for Adjudication of Claim alleging industrial injury due to the disease on a specific basis. The date of injury was asserted as September 23, 2018, the applicant’s last day worked.

The Workers’ Compensation Judge (WCJ) found that the alleged specific injury could not be supported because there was no evidence that the applicant suffered the mosquito bite which resulted in the occupational disease on that exact date. The WCJ issued a take nothing and then the applicant filed for reconsideration, which was granted.

In their opinion, the Appeals Board (WCAB) disagreed with the WCJ that the applicant had not met his burden in establishing AOE/COE. What followed was a discussion of the unique nature of occupational diseases. While occupational diseases are commonly described in conjunction with cumulative trauma injuries within the California Labor Code, they do not necessarily occur on a cumulative trauma basis. Ultimately the WCAB held that it was appropriate for the applicant to have alleged his injury as having occurred on the specific date on which he would have last been exposed to the disease.

As a reminder, California Labor Code Section §3208.1 describes specific injuries and cumulative trauma injures as follows:

An injury may be either: (a) “specific,” occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) “cumulative,” occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.

Although there are many references throughout the Labor Code to “occupational disease” there is no explicit definition. The WCAB in Leggette relied on a definition gleaned from the 1999 California Court of Appeal case General Dynamics Corp. v. Workers Compensation Appeals Bd., 1999 Cal. Wrk. Comp. LEXIS 5336. This case involved asbestos exposure and whether or not an applicant’s earlier Compromise and Release could resolve an asbestos injury which was not known to exist at the time of the earlier settlement. The WCAB summarized the definition of an occupational disease as “one where the symptoms are latent after exposure.”

The term “occupational disease” is used in two Labor Code sections that are most commonly used in understanding cumulative traumas. First, the term appears in Labor Code §5412, which advises that the correct date of an occupational disease or cumulative trauma is “…that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”

Next, the term appears in Labor Code §5500.5(a) which states that “liability for occupational disease or cumulative injury claims … shall be limited to those employers who employed the employee during a period of [one year] immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first.”

Despite the fact that occupational diseases are paired with cumulative traumas in these two code sections, the Leggette decision finds that the two concepts remain distinct. In other words, an occupational disease is not necessarily a cumulative trauma. Notably, the WCAB explained in Leggette that the applicant had no obligation to prove the exact date of his exposure. Instead, by alleging a specific date of injury for the West Nile Virus claim, the applicant had correctly complied with the language of 5505.5(a) regarding the last date of employment involving hazardous exposure.

I told Ned that this line of reasoning would likely apply to his coronavirus claim. The fact that the applicant had alleged a specific date of injury without evidence as to exactly when he was exposed was not a good enough reason to deny the claim.

I reminded dear Ned that, as with any other case, there was still an investigation which needed to be done. Did anyone else in close contact with the applicant test positive, at work or at home? Are there any credibility issues which raise red flags about the motivation for the claim or which may show some reason to doubt the applicant’s assertion that this was contracted at work? Is there any indication that the applicant risked it all to belt out the song from Shrek with thousands of other motorcycle enthusiasts at Smash Mouth’s big performance at the Sturgis Motorcycle Rally earlier in the month?

“Bing!” Ned exclaimed. The applicant WAS a big Smash Mouth fan and had been on vacation the week of the rally. He had even bragged to coworkers that he was going to get out to see America on his Harley. Ned would dispatch investigators to the applicant’s social media pages to look for photos of him in South Dakota (or “The Tropical Dakota” as it is commonly referred to) with the other bikers. If the applicant was attending large gatherings there could be a question as to whether any exposure occurred in the workplace.

I hung up with Ned, hoping that he would refer the file over for my handling so I would know how the story ended, and returned to my own endless time loop. Get up. Jog. Lawyer. Parent. Disinfect. Manhattan with two cherries.3 Sleep. Repeat.

DISCLAIMER:

All characters at my home bar are fictional and the storyline is simply a product of my active imagination.

I would like to take this opportunity to remind our loyal Lobby Bar/Home Bar patrons that a timely and thorough investigation is key in every claim. Even if a COVID-19 claim is alleged to have occurred during the period of March 19, 2020 to July 5, 2020 in which the Governor’s presumption of compensability could apply, the presumption is a rebuttable one. An investigation could produce the information necessary to make a good faith denial. And as my colleague Tony Macauley wrote in his piece on our blog, there could be constitutional challenges to the presumption which you can read about here.

While Leggette lacks the designation “significant panel decision,” Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

We’re still making our own doubles for now. May George guide my hand. Bottoms up, friends, and keep washing your hands.

1 Fun fact – Anne Rice, noted horror author whose work includes Interview with the Vampire and The Vampire Lestat, served as an influence for the original script of the film Groundhog Day.

2 A copy of Leggette can be obtained via email request.

3 Legend has it that the Manhattan was invented by New York City socialite, Ms. Jennie Jerome, aka Lady Randolph Churchill, in the mid-19th century at a party for the newly elected Governor of New York, Samuel J. Tilden, held at the estimable gentleman’s club called the Manhattan Club. Debatable perhaps because at the time Lady Randolph was in fact in England and very much pregnant with one Sir Winston Churchill, but I digress.

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