California Governor Gavin Newsom issued an Order which impacts Injured Worker who succumb to the Coronavirus Disease. This article will explain the presumption.
Why Was a Presumption Enacted?
Per the Governor, “employees who report to their places of employment are often exposed to an increased risk of contracting COVID-19, which may require medical treatment, including hospitalization; and WHEREAS employees who report to work while sick increase health and safety risks for themselves, their fellow employees, and others with whom they come into contact.”
Why Is There Is a Need to Do So for Workers?
The goal of the presumption is to provide that “prompt and efficient treatment will be realized by facilitating access to this state’s workers’ compensation system for medical treatment and disability benefits.”
What Is the New Presumption Law Relating to COVID-19?
1) Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
a. The employee tested positive for or was diagnosed with COVID19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
b. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
c. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and
d. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
2) The presumption set forth in Paragraph 1 is disputable and may be controverted by other evidence, but unless so controverted, the Workers’ Compensation Appeals Board is bound to find in accordance with it.
In sum, the most important requirements for the presumption to apply is
- The Employee worked at the actual place of employment
- The Employee was working at the direction of the Employer
- There was an actual diagnosis and testing to confirm the diagnosis
- There is an exclusion from one working at home
Is There a Time Limit to the Presumption?
Yes. There is a time limit to the presumption. It is good for 60 days following 5/6/2020.
Per the Executive Order, “This presumption shall only apply to dates of injury occurring through 60 days following the date of this Order.”
Is There an Additional Presumption Within the Order?
Yes. There is a presumption if the claim is not denied within 30 days.
3) Notwithstanding Labor Code section 5402, if liability for a claim of a COVID-19-related illness pursuant to Paragraph 1 is not rejected within 30 days after the date the claim form is filed under Labor Code section 5401, the illness shall be presumed compensable, unless rebutted by evidence only discovered subsequent to the 30-day period.
What Are Injured Workers Entitled To?
“(4) An accepted claim for the COVID-19-related illness referenced in Paragraph 1 shall be eligible for all benefits applicable under the workers’ compensation laws of this state, including full hospital, surgical, medical treatment, disability indemnity, and death benefits, and shall be subject to those laws including Labor Code sections 4663 and 4664, except as otherwise provided in this Order.”
How Will Total Temporary Disability (TTD) Benefits Be Paid?
“5) Notwithstanding any applicable workers’ compensation statute or regulation, where an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under Labor Code section 4850 are due and payable. Where an employee does not have such sick leave benefits, the employee shall be provided temporary disability benefits or Labor Code section 4850 benefits if applicable, from the date of disability. In no event shall there be a waiting period for temporary disability benefits.”
How Does One Qualify for TTD Benefits?
“6) To qualify for temporary disability or Labor Code section 4850 benefit payments under this Order, an employee must satisfy either of the following:
a. If the employee tests positive or is diagnosed under Paragraph 1 on or after the date of this Order, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis;
Or
b. If the employee tested positive or was diagnosed under Paragraph 1 prior to the date of this Order, the employee must obtain a certification, within 15 days of the date of the Order, documenting the period for which the employee was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. All employees must be certified for temporary disability by a physician holding a physician and surgeon license issued by the California Medical Board. The certifying physician can be a designated workers’ compensation physician in an applicable Medical Provider Network or Health Care Organization, a predesignated workers’ compensation physician, or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, the employee should be certified by a physician of the employee’s choosing who holds a physician and surgeon license.
Does This Executive Order Change Other Workers’ Compensation Laws?
No. “Nothing in this Order shall be construed to modify or suspend any workers’ compensation statute or regulation not in conflict with this Order, or to reduce or eliminate any other right or benefit to which an employee is otherwise entitled under law, including the Families First Coronavirus Recovery Act, collective bargaining agreement, or Employee Benefit Plan, including group health insurance, that is in effect prior to March 19, 2020.”
What If I Need Legal 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. for more information.