The COVID-19 presumption in section 3212.88 of California’s Labor Code did not apply because there was not enough evidence to prove that a deceased employee contracted the virus during an outbreak at the workplace, a recent ruling said.

The case of Garcia vs. U.S. Bank; Old Republic arose when a banker who worked at U.S. Bank’s Signal Hill branch tested positive for COVID-19 on Nov. 19, 2020. That same day, a co-worker also tested positive for the virus. Around five people were working at the branch that month.

The banker passed away a week later, with his death certificate listing the cause of death as COVID-19. His widow filed a death claim, which the bank denied.

The workers’ compensation administrative law judge found that the banker sustained an injury arising out of employment in the form of COVID-19 and that the bank failed to overturn the presumption that he contracted the virus on an industrial basis.

The bank asked for a reconsideration. It argued that this was not a presumptive injury case because there was no outbreak at the time the banker contracted COVID-19. Without this presumption, there was no proof that the banker contracted the virus at work, the bank said.

In a separate case, a workers’ compensation administrative law judge had to determine, based on substantial medical evidence, whether it was reasonably probable that the claimant contracted COVID-19 as a result of a workplace exposure.

Medical evidence needed

The panel of the Workers’ Compensation Appeals Board of California granted the bank’s petition for reconsideration. It canceled the judge’s decision and returned the matter to the trial level for the parties to complete a panel-qualified medical evaluation process and for the judge to conduct further proceedings and to issue a new decision based on substantial evidence.

The presumptions in sections 3212.87 and 3212.88 of the Labor Code were not applicable, the panel ruled. Regarding section 3212.87, the employee was a banker, which was not a public safety occupation entitled to the presumption under that section.

The section 3212.88 presumption was also inapplicable, the panel held. This section defined injury as including “illness or death resulting from COVID-19” if all the following circumstances were present:

• The employee tested positive for COVID-19 within 14 days after a day – on or after July 6, 2020 – when they performed labor or services at their place of employment at the employer’s direction. The date of injury would be the last date that the employee worked at their place of employment at the employer’s direction before the positive test.
• The employee’s positive test occurred during a period of an outbreak at their specific place of employment.

In this case, the panel found that the banker met the first condition because he tested positive within 14 days of performing work at his place of employment and because the positive test occurred after July 6, 2020.

However, the second condition was not present, the panel said. The evidence showed that the bank had fewer than 100 employees in November 2020 and that two employees tested positive for COVID-19 during the relevant 14-day period. The evidence did not support that the banker’s positive test occurred during a period of an outbreak or that the bank was ordered to close after two workers tested positive for COVID-19.

Industrial injury considered

Without the Labor Code presumptions, the panel determined that the judge could not rule upon whether the banker sustained an industrial injury because there was no medical-legal evaluation. If communicable disease caused the injury, the panel could not answer with certainty the essential questions of when and where the employee contracted the disease.

In this case, substantial medical evidence should support the decision of whether the employee had an industrial injury, the panel said. Such evidence would show that it was more likely that the employee acquired the disease at work or that the employment subjected him to a special risk of exposure in excess of that of the general population.

A medical expert should assess whether it was medically probable that disease was transmitted at work, the panel added. A qualified physician whose job was to observe the way diseases spread and to draw conclusions from those observations could provide an opinion for the panel to consider.

Source: Widow of banker who died from COVID-19 seeks workers’ compensation