Happy Monday, dear readers!  How are we doing?  Hanging in there?

It’s all gravy in your humble blogger’s navy here, although I can’t tell you enough how much I miss daily hearings and depositions – it seems like just about every deposition and hearing (with the exception of expedited hearings) is being kicked over again and again.  Even AME and QME exhibits don’t seem to be happening much – despite all the talk about telemedicine, many of the QMEs and AMEs are just cancelling the appointments.  I guess the opportunity of a standard QME exam and report fee isn’t worth losing one’s life over – who would have guessed?

In any case, if you have not yet heard, you should know that CAAA and some of its Union allies are trying to get a presumption into California law that contracting Corona Virus is industrial.

For some reason, Governor Newsom isn’t taking my calls so if you’ve got any influence in Sacramento, I urge you, my beloved readers, to exert it to prevent such a presumption from entering our beloved workers’ compensation swamp.

California Labor Code section 3600 specifically limits compensability to injuries arising out of and in the course of employment.  We receive allegations of injury, investigate them, and them determine if they are work related or not.

The standard for compensability for diseases such as COVID19, without any presumption, would be to either establish a specific point of infection at work (which would be nearly impossible given how wide spread the illness is) or to show that the employee is at a higher risk of exposure than the general public. 

Hospital employees working with hepatitis patients are much more likely to be exposed to hepatitis than the general public – sure!  What about COVID19?  Unless you are a hospital worker treating COVID19 patients, in what scenario would a worker be more likely to be exposed than the general public?  Probably none. 

CAAA and the involved Unions want a presumption for that exact reason: employees working in stores or making deliveries aren’t at higher risk than the general public, because their only risk of exposure is by interacting with the general public.  When your humble blogger goes to the grocery store to buy his ration of toiler paper, he is just as exposed to COVID as the check-out clerk because our source of danger is the exact same: other members of the public.

Without a presumption, absent some showing of direct exposure at work (such as, perhaps, an co-worker who tested positive for COVID19 and a point of contact contemporaneous enough to fit with the incubation period) the worker is just as likely to have gotten it doing his or her own grocery shopping as at work.  And in those cases, the applicant cannot carry his or her burden of proof – showing it is more likely than not that the infection occurred AOE/COE.

Of course, CAAA and the Unions involved want to skip this inconvenient fact and get a free pass.  Well they shouldn’t – workers’ compensation is not a lottery ticket and it is intended to cure or relieve from the effects of non-industrial injuries.  If an applicant can establish that the infection occurred more likely than not at work, then no presumption is necessary for benefits.  If it is less likely than so that the infection was work-related, the worker should not receive benefits.

So, we circle back dear readers – I urge you to do what you can to oppose any efforts at such a presumption.  And if I’m wrong, which, legend has it, I have been from time to time, let me know please!