Border law enforcement officer wearing mask and gloves due to COVID-19

THE CORONAVIRUS DISEASE, LAW ENFORCEMENT AND SAFETY OFFICERS, AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

In the news, there have been a number of reports that Law Enforcement Officers and Safety Officers have contracted the coronavirus disease or COVID-19. These contractions of the disease may have been work-related. If they were work-related, the Officers would be entitled to pursue this Coronavirus Disease as an industrial injury entitling them to received workers’ compensation benefits.

This article will discuss how California Workers’ Compensation Law may specifically address Law Enforcement and Safety Officers who contract the disease. Most importantly, this article will discuss whether any presumptions apply.

What is Coronavirus?

Per the Centers of Disease Control, the Coronavirus, SARS-CoV-2, is the cause of a disease known as “Coronavirus Disease 2019” or abbreviated as ‘COVID-19.” The Disease is something that is spread by “Person to Person” contact.

Per the Centers of Disease Control, “Coronaviruses are a large family of viruses that are common in people and many different species of animals, including camels, cattle, cats, and bats. Rarely, animal coronaviruses can infect people and then spread between people such as with MERS-CoV, SARS-CoV, and now with this new virus (named SARS-CoV-2).

The SARS-CoV-2 virus is a betacoronavirus, like MERS-CoV and SARS-CoV.  All three of these viruses have their origins in bats.” The origin of the disease being from China. The CDC also noted that the disease spread via “person to person” contact. “Person to Person” contact then spread the disease outside of China.

The CDC refers to the spread of the disease to international destinations as “Community Spread.” The term “Community Spread” implies that there are some people who do not know how or where they became exposed.

How Can the Coronavirus Disease Be Work-Related?

Currently, in the United States, per the CDC, COVID-19 cases include (1) imported cases in travelers, (2) cases among close contacts of a known case, and (3) Community-acquired cases where the source of the infection is unknown. Cases (1) and (2) would be the situations for which there could be work-related contact that can be proven. If an infection source is unknown, it would be extremely difficult to prove that it could be work-related. With respect to Safety and Law Enforcement Officers, if they qualify, would be able to use a presumption to prevail on a community-acquired case. This article will explain which presumption applies in this circumstance.

What is the Illness Severity?

Per the CDC, “[t]he complete clinical picture with regard to COVID-19 is not fully known. Reported illnesses have ranged from very mild (including some with no reported symptoms) to severe, including illness resulting in death. While information so far suggests that most COVID-19 illness is mild, a report external icon out of China suggests serious illness occurs in 16% of cases. Older people and people of all ages with severe underlying health conditions — like heart disease, lung disease and diabetes, for example — seem to be at higher risk of developing serious COVID-19 illness.”

What Are the Signs of Infection?

Per the World Health Organization (WHO), the “[c]ommon signs of infection include respiratory symptoms, fever, cough, shortness of breath and breathing difficulties. In more severe cases, the infection can cause pneumonia, severe acute respiratory syndrome, kidney failure, and even death.”

How Does One Know They Have Coronavirus Disease?

The CDC has a test kit “for severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)” It is “is shipping the test kits to laboratories CDC has designated as qualified, including U.S. state and local public health laboratories, Department of Defense (DOD) laboratories and select international laboratories.”

How Does One Prevent Infection?

Per WHO, the “[s]tandard recommendations to prevent infection spread include regular hand washing, covering mouth and nose when coughing and sneezing, thoroughly cooking meat and eggs. Avoid close contact with anyone showing symptoms of respiratory illness such as coughing and sneezing.”

How Does One Have an Industrial Coronavirus Disease?

An industrial coronavirus disease infection would be one that occurs arising out of and in the course and scope of employment. Another means of an industrial coronavirus disease infection may be one obtained in which an injured worker contracted the disease while seeking medical attention for an existing industrial injury. For example, while treating in the hospital for a work-related broken arm, they become exposed to an infected patient at the hospital. As a result of that exposure, they contract the disease.

In order to prove an industrial case, one would have to succumb to the coronavirus disease. This would most likely require a diagnosis of the disease. Most likely, this would include positive testing for the disease. As noted, there is a test to prove whether one in fact as the disease. Therefore, this would be an important first step in proving an industrial injury. A positive test would be a valuable piece of evidence.

Second, since the disease is transmitted by human to human contact, there should be a history of the injured worker having some form of contact with someone infected with the coronavirus disease.

Third, there should be an expert medical opinion that within reasonable medical probability, more likely than not, that the transmission of the disease arose from industrial exposure. For example, if a worker was exposed to an infected co-worker but also was exposed by having three family members who were also exposed, the Doctor will have to make an in-depth analysis as to whether they believe the infection came from the work exposure.

Fourth, for Safety and Law Enforcement Officers, if a presumption applies in this matter, the expert medical opinion should address the application of the presumption.

What Type of Workers’ Compensation Benefits Can One Receive?

If industrial exposure is found, the full extent of workers’ compensation benefits would be available. This would include total temporary disability payments, medical treatment paid for by the insurance, permanent partial disability and death benefits. For certain Safety and Law Enforcement Officers, Labor Code Section 4850 Salary Continuation Benefits would apply.

What Type of Disease is Coronavirus?

For Law Enforcement and Safety Officers, the characterization of Coronavirus Disease is important. This author contends that Coronavirus Disease should be considered as a form of Pneumonia. The following article supports this position.

In the article. Early Transmission Dynamics in Wuhan, China, of Novel Coronavirus–Infected Pneumonia March 26, 2020 N Engl J Med 2020; 382:1199-1207 DOI: 10.1056/NEJMoa2001316 reports that “[t]he earliest cases were identified through the “pneumonia of unknown etiology” surveillance mechanism.4 Pneumonia of unknown etiology is defined as an illness without a causative pathogen identified that fulfills the following criteria: fever (≥38°C), radiographic evidence of pneumonia, low or normal white-cell count or low lymphocyte count, and no symptomatic improvement after antimicrobial treatment for 3 to 5 days following standard clinical guidelines.”

It further noted that “[a] suspected NCIP case was defined as a pneumonia that either fulfilled all the following four criteria — fever, with or without recorded temperature; radiographic evidence of pneumonia; low or normal white-cell count or low lymphocyte count; and no reduction in symptoms after antimicrobial treatment for 3 days, following standard clinical guidelines — or fulfilled the abovementioned first three criteria and had an epidemiologic link to the Huanan Seafood Wholesale Market or contact with other patients with similar symptoms.” The disease in the article is referred to as of “novel coronavirus (2019-nCoV)–infected pneumonia (NCIP)”

In sum, it is clear from this article that the Coronavirus Disease is a form of Pneumonia. Law Enforcement and Safety Personnel have a Pneumonia Presumption. Therefore, the Pneumonia Presumption should apply to the Coronavirus Disease.

What is the Law Enforcement and Safety Presumption That Should Apply to the Coronavirus Disease?

This author contends that the Pneumonia Presumption should apply to the Coronavirus Disease.

Labor Code Section 3212 provides “[i]n the case of members of a sheriff’s office or the California Highway Patrol, district attorney’s staff of inspectors and investigators or of police or fire departments of cities, counties, cities and counties, districts or other public or municipal corporations or political subdivisions, whether those members are volunteer, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting or of any county forestry or firefighting department or unit, whether voluntary, fully paid, or partly paid, and in the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish and Game whose principal duties consist of active law enforcement service. Excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service.

Some such as

  • Stenographers
  • Telephone operators
  • Office workers

 

The term “injury” as used in this act includes hernia when any part of the hernia develops or manifests itself during a period while the member is in the service in the office, staff, division, department, or unit, and in the case of members of fire departments, except those whose principal duties are clerical, such as stenographers, telephone operators, and other office workers.

Also in the case of county forestry or firefighting departments, except those whose principal duties are clerical and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting.

In the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish and Game whose principal duties consist of active law enforcement service, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service such as stenographers, telephone operators, and other office workers, the term “injury” includes pneumonia … that develops or manifests itself during a period while the member is in the service of the office, staff, department, or unit. … The compensation that is awarded for … pneumonia shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by the workers’ compensation laws of this state.

pneumonia so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. The presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.

The … pneumonia so developing or manifesting itself in those cases shall in no case be attributed to any disease existing prior to that development or manifestation.” [emphasis added]

Further, there is Labor Code Section 3212.10 which provides

[i]n the case of a peace officer of the Department of Corrections who has custodial or supervisory duties of inmates or parolees, or a peace officer of the Department of the Youth Authority who has custodial or supervisory duties of wards or parolees, or a peace officer as defined in Section 830.5 of the Penal Code and employed by a local agency, the term “injury” as used in this division includes …, pneumonia… that develops or manifests itself during a period in which any peace officer covered under this section is in the service of the department or unit. The compensation that is awarded for that injury shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits as provided by the provisions of this division.

The …pneumonia… so developing or manifesting itself shall be presumed to arise out of and in the course of employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.”

What If I Need Advice?

If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

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