WCDefenseCA

Happy Monday, dear readers!

I hope you are finding this morning one of good health and cheer.  As an attorney, I feel full of life and health when I am at my post, denying benefits and cheating death avoiding liability for my files, but as a father, I’m well aware that being around little kids in a schoolroom setting is just asking for exposure to every disease known to man.

Kids get sick when they go to school, and since parents can’t always afford to miss time from work, kids go to school even when sick and bring the germs with them – I assume you’ve heard of “show and tell.”

Well, what happens when a teacher gets sick?  After all, even though the students aren’t employees, the teachers certainly are!  Are common illnesses that one might catch on the bus, at the supermarket, on the street, but ALSO in the classroom a compensable injury?

Well, consider the case of Grawe  v. Culver City Unified School District.  Therein, defendant sought reconsideration of a finding of 82% permanent disability sustained by a school teacher in the form of hypertension and psoriatic arthritis.  The AME found that “it was medically probable that applicant developed viral cardiomyopathy as a result of contracting viral respiratory tract infections ‘because of being exposed to communicable viruses from her students.’”  The viral illness, in turn, triggered applicant’s hypertension.

So, the ruling was that, more likely than not, applicant did not catch a cold on the street, on the bus, at the bank, or at home, but at school from her students.  It was further concluded that this illness triggering her hypertension resulted in a compensable claim.

The reasoning that drove this conclusion was the WCJ’s reliance on the LaTourette case, in which the California Supreme Court found that “if the employment subjects the employee to an increased risk compared to that of the general public” then the danger, even if it does not arise out of the employment, may be compensable.  Just so we’re clear, the general public which has their children attending these schools and brining home any communicable diseases is somehow not exposed as the teacher in the school, right?

As such, the WCAB denied defendant’s petition for reconsideration and the Court of Appeal denied Review.  Readers, please compare this with the case of Reff v. WCAB, where the opposite conclusion was reached.

Now, if this case were submitted to Justice of the Peace, Lord of Fairness, and Arbiter of Disputes Grinberg (commonly known as the Humble Blogger), I would have found this to be non-industrial.  The teacher simply did not have any sort of exposure that the general public didn’t have as well.  We’re not talking about traveling through areas known to trigger Valley Fever – we’re talking about catching an illness brought to school by a student from home (where the student’s family and friends were likewise exposed).  But, unfortunately, no one asks pool ol’ Greg for his opinion…

Fortunately, this opinion is not binding, so perhaps we in the defense community can continue the fight!