Happy Monday, dear readers!
So … you’ve looked everywhere for guidance on Corona Virus, and you ended up coming back here. Accordingly, please allow Dr. Humble Blogger (remember, I did take Remedies in law school) to impart some wisdom upon you – you’re not going to catch Corona Virus because you chose to eat lunch at a Chinese food restaurant instead of a Sushi restaurant; you’re not going to catch Corona virus because you drank Corona Beer instead of Guinness; and, most importantly, if you’re going to Costco to stockpile toilet paper and hand sanitizer, but you’re still eating the samples being given out in the store, I think you might be missing the point.
In any case, there’s a whole lot of inquiry about whether workers’ compensation is going to get dragged into the Corona Virus panic. I would respectfully refer my beloved readers to a prior blog post on the flu in general – the rule that governs the inquiry is not whether someone who happens to have a job also happened to catch the flu (or Corona Virus) but rather, whether the job increases the danger of exposure to the injured worker more so than is visited upon the general public.
Since we’re in the spirit as it is, let’s take a look at the case of Leggette v. CPS Security, a panel decision issued in January of this year.
Now this one doesn’t have to do with Corona Virus, but it does have to do with West Nile (remember when that was the big pandemic?) Applicant worked as a security guard at a construction site. At that location, there was standing water on two sides of the construction site, and applicant saw and heard mosquitos. He also felt them bite him on a daily basis!
On the alleged date of injury, he went home and the next morning (as per his testimony) he remembers putting on his pants and… that’s it. He woke up a week later in the hospital, and was told he had contracted West Nile Virus.
Applicant alleged a specific injury and sought benefits but the AOE/COE trial resulted in a take-nothing, reasoning that applicant could produce no evidence of a mosquito bite on the date as alleged (his last day worked).
The WCAB reversed, equating the mosquito bite that gave rise to the West Nile Virus to an occupational disease, in that the “symptoms are latent after exposure.” The panel concluded that “[t]he WCJ erred in finding that applicant had to specify the exact date that he was bitten by the infected mosquito… [r]equiring an injured worker to know the exact date of exposure in a case like this one would be nearly impossible.”
So based on this case, it is sufficient for an applicant to show that there was probable exposure to the condition as a result of work activities. Notice, however, what the injured worker is NOT required to show:
- The specific date on which he believes he was exposed or on which particular date a mosquito bite resulted in exposure; and
- That the mosquitos near his workplace actually carried the West Nile Virus. Remember dear readers, there are plenty of perfectly healthy mosquitos out there that are annoying but not carriers of WNV. However, it does not appear that any testing was required to show that the mosquitos infesting applicant’s worksite actually carried the virus.
Bringing this back to the Corona virus though – the news reports your humble blogger has seen seem to suggest that infection is nearly everywhere. Previously recovered patients seem to get re-infected, and a huge swath of the population, though infected, shows no symptoms at all.
As low as the bar appears to be for workers to claim that their infection was work related, defendants should have a counter argument about the inability of an applicant to carry his or her burden in proving exposure at work as well as a result of work (AOE and COE).
What about you, dear readers, have you had this come up yet? If so, drop me a line and share your experience.