Governor Newsom Signs Executive Order Clarifying COVID-19 Is A Presumptive Injury

Today, Governor Newsom signed Executive Order N-62-20. This critical order creates a rebuttable presumption that California’s essential employees who contract COVID-19 did so in the course and scope of their employment if certain requirements are satisfied and thus are eligible for workers' compensation benefits.

The presumption, which is disputable by the employer, pertains to employees that have tested positive or been diagnosed by a licensed physician with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment, or at the employer’s direction – but not at the employee’s home or residence. In addition to first responders and health care workers, the new executive order also covers other employees who are working during the COVID-19 pandemic.

Under the Order, the presumption will be in place for the next 60 days and covers claims dating back to March 19, 2020.  Once a COVID-19 claim has been filed, the employer will have 30 days to determine whether to accept or deny the claim. The presumption should eliminate most of the causation fighting that is currently happening between the workers’ compensation insurance carriers, third party administrators and those seeking benefits under the California Workers’ Compensation system. However, it is unclear at this time whether employers will make an effort to challenge this order.

Workers’ Compensation benefits may include medical treatment; temporary disability (or salary continuation under Labor Code section 4850 for public safety) so long as the employee is certified for temporary disability by the treating physician; permanent disability; and/or dependency death benefits. If you are someone you know has tested positive or was diagnosed with COVID-19 within 14 days of performing labor or services at the employee’s place of employment please contact the law office of Mastagni Holstedt for assistance in pursuing workers’ compensation benefits

Filing a COVID-19 Workers' Compensation Claim

The pandemic caused by the coronavirus disease (COVID-19) is impacting almost every aspect of Californian lives, including how we live and work.  Every cough, runny nose and even headache can make a person wonder if they have contracted this virus. To make matters worse our first responders and front-line medical personnel continue to perform their essential services to our communities while most Californians are under the protection of a public health directive to shelter in place.

While the general public shelters in place, our first responders face a mounting risk of exposure to COVID-19.  This public health crisis is transforming into an ever-expanding first responder crisis as peace officers, firefighters, and medical personnel contract the virus as they perform their essential services.   Given these facts, the logical question is what will happen to our first responders if and when they contract COVID-19. Does California have a plan for them?

Workers’ Compensation

The purpose of Workers’ Compensation is to provide monetary and medical benefits to people who become injured while working in the course and scope of their job duties. Part of the workers’ compensation process is to separate work related from non-work-related claims. In the context of a disease such as COVID-19, this becomes very difficult to do in practice.

Increased Risk to Exposure

However, there is a recognizable link between the nature of a first responder’s job and an increased risk of contracting the disease. First responders typically encounter a wide variety of exposures at work, including but not limited to bodily fluids, sneezing/coughing, and the unavoidable touching of unclean surfaces. Historically, when dealing with other injuries that first responders face a greater risk of suffering than the public, our State Legislature has acted to create a presumptive injury status for certain injuries. 

Presumptive Injuries

The presumption effectively shifts the burden of establishing causation.  This means the argument switches from the employee’s burden to establish that he suffered an industrial injury to a burden upon the employer.  The employer must rebut that the injury suffered was not from industrial exposure.  For example, there are presumptions for certain first responders who suffer pneumonia, meningitis, tuberculosis, etc.

At present, there is inadequate formal guidance from the State of California as to whether any Workers’ Compensation presumptions would apply to our first responders in the event of a confirmed COVID-19 infection.  In the absence of a presumption, the burden is on the injured first responder to prove that they were at a greater risk of exposure to COVID-19 at the time they contracted the illness. 

Record of Exposure

If a first responder is exposed to an individual whom is believed to have the virus the first responder should attempt to establish a record of known or suspected exposure to COVID-19 at work. This evidence may include information as to the time of the exposure, the location of the exposure, the mechanism of transmission, if known, and any other knowledge or observation of COVID-19 symptomatology present at the workplace. This information must be communicated to the employer as well.

In addition to providing information about any potential exposure to COVID-19, the injured first responder must provide medical evidence that they have actually sustained an infection. The preference is medical testing. However, in the absence of test results, there will need to be a diagnosis from a licensed physician of a suspected COVID-19 case. In addition to the diagnosis itself, relevant medical information includes any medical evidence which tends to show that COVID-19 was accelerated, aggravated, or precipitated by job duties. 

The bottom line is that establishing a causal relationship generally requires a qualified physician's opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to your employment. This opinion must be based on a complete factual and medical background. However, the ubiquity of COVID-19 presents unique challenges to the standard causation formula. How consistently can we prove the circumstance of work-related exposure to COVID-19 in an environment where the virus is known to be extremely contagious, relatively unseen, and transmitted by means we are only beginning to fully comprehend?  The fear is, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders despite their daily heroism on the front lines of this disease.

However, Mastagni Holstedt, APC is asserting that injuries caused by a COVID-19 exposure and/or infection should fall under one of the existing public safety presumptions.  The legislative intent behind the creation of a public safety presumptive injury in the California Labor Code is to offer additional protection to first responders who put their lives at risk for the public’s benefit. The risk they take while assisting the public through the COVID-19 pandemic is no different.

Creating a COVID-19 Presumption

It remains to be seen if Mastagni Holstedt will prevail in our arguments that one or more of the existing presumptions should be extended to cover injuries caused by COVID-19 because at the time the presumptions were codified COVID-19 did not exist.  However, there are separate efforts underway to create a new presumption in law.  Fire fighter and law enforcement advocates, such as the Peace Officer Research Association of California (“PORAC”) and the California Professional Fire Fighters ("CPF"), have urged California Governor Gavin Newsom and the State Legislature to create a presumptive injury for our first responders exposed to or inflected with COVID-19. These efforts are ongoing. 

The State Legislature is currently debating Assembly Bill No. 664 which seeks to define “injury” for certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators to include being exposed to or contacting a communicable disease, including COVID-19.  The proposed bill would create conclusive presumption, as specified, that the injury arose out of and in the course of employment.

The fear is, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders despite their daily heroism on the front lines of this disease.  With that said, at Mastagni Holstedt we continue to represent our first responders and will vigorously litigate on their behalf for an extension of the existing presumptive injuries.

If you or someone you know needs help with this fight please contact Mastagni, Holstedt, A.P.C. for an advocate who supports what you do for our communities and who will fight this legal battle with you.

California Supreme Court Sets Oral Arguments for Pension Appeals

Today the California Supreme Court set oral arguments in the Alameda County Deputy Sheriff’s Association pending appeal, which is consolidated with several other employee organizations, challenging the constitutionality of the Public Employee Pension Reform Act (PEPRA) as it applied to certain plan members under County Employees Retirement Law of 1937 (CERL). 

Arguments will be heard on May 5, 2020, at 9:00 a.m. via  video or teleconference.  The case is captioned,  Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Assn. (Cal. 2018) 230 Cal.Rptr.3d 681.  The Alameda DSA is represented by Mastagni Hosltedt, APC, attorneys  David E. Mastagni and Isaac S. Stevens.

Listen NOW: Mastagni Holstedt's Brendan Rochford Interviewed By Ride Along Radio Regarding Need For COVID-19 Workers Compensation Presumption

On Thursday, Mastagni Holstedt's own Brendan Rochford was interviewed by Ride Along Radio. Listen to the interview below as Brendan outlines the need for legislation to ensure that COVID-19 becomes a presumptive injury under California's Worker Compensation System.

Brendan Rochford

Mastagni Holstedt Wins Cancer Presumption Exception for Imperial County Probation Officer

In California Workers’ Compensation law, injured workers must normally prove the alleged injury was caused by their job duties (to the standard of a reasonable medical certainty). Over the years, the California legislature has recognized the unique and demanding job duties public safety officers and other first responders face and outlined specific, presumptive injuries. This was done in an effort to make Workers’ Compensation claims and treatment process quicker. One such presumption is cancer. However, each presumption specifically designates who will qualify as a matter of law. These designations are not normally subject to review by the courts. Furthermore, probation officers are categorically excluded in the statutory language of the cancer presumption.

Notwithstanding the statutory exclusion,  Mastagni attorney Brendan B. Rochford successfully argued for an exceptional application of the cancer presumption (William Dallas Jones Cancer Recovery Act (“Act”)), otherwise known as Labor Code §3212.1, to Imperial County Probation Manager Iran Martinez. Raising multiple factors, Mr. Rochford successfully demonstrated Martinez was performing the usual and customary duties of a special agent for the State of California as classified in PC 830.1(b), entitling him to the cancer presumption. The Workers’ Compensation Appeals Board of San Diego agreed and granted Officer Martinez an exception to the presumption. This should soon result in Martinez receiving the benefits for an accepted cancer claim.

The presumptions set forth in Labor Code §3212.1  apply to peace officers sworn under Penal Code §830.1, not to peace officers sworn under Penal Code §830.5. Probation officers in California are sworn under Penal Code §830.5. Attorneys for the County of Imperial argued Officer Martinez’ sworn status precluded him from eligibility under the Act. Relying on Reeves v. ­­­­WCAB, Mr. Rochford countered that Officer Martinez’ job duties as a Narcotics Task Force Officer/Special Agent were also critical factors in the Court’s analysis.

The Court agreed and found that Officer Martinez’ job duties, along with other circumstances including his training, equipment, and title of “Special Agent Martinez,” entitled him to classification as a special agent under Penal Code §830.1(b). After reviewing the deposition of the doctor, the Court further agreed that Officer Martinez’ entitlement to the presumption should clear the way for Workers’ Compensation benefits due to the nature and timing of his injuries. It is on this basis that an order was issued compelling Worker’s Compensation benefits. The decision recognizes the inequity of ordering a probation officer to perform traditional police duties that place them in harm’s way, without affording them the same Workers’ Compensation benefits enjoyed by other PC 830.1 (b)members of the Task Force.

This case speaks to the importance of not giving up on a serious Workers’ Compensation claim simply due to a denial of the presumption based on Penal Code designation. The actual job duties performed at work are crucial factors in determining whether you will be found eligible for a Workers’ Compensation presumption. A consultation with an experienced Workers’ Compensation attorney may be the difference in qualifying for Workers’ Compensation benefits under a public safety presumption.

This decision was recently signed by Workers’ Compensation Judge Wade DiCosmo on January 31, 2020. Defendant enjoys a right to file a Petition for Reconsideration. Updates to be provided accordingly.

Brendan Rochford is a valuable member of the Mastagni Holstedt, A.P.C. team, successfully litigating Worker’s Compensation claims for public safety officers throughout California. As demonstrated by his success in this case, he is well versed in applicable presumptions. He is based in Rancho Cucamonga and regularly appears at the Worker’s Compensation Appeals Boards in San Diego, Riverside, San Bernardino, Pomona, Van Nuys, Santa Barbara, Anaheim, Santa Ana, Los Angeles, Bakersfield, Oxnard, and San Luis Obispo.

Mastagni Holstedt Gets PERB Complaint for Employer Refusal to Provide Information

Mastagni attorneys Kathleen Mastagni Storm and Chelsea Avent recently got a Public Employment Relations Board (“PERB”) Complaint issued against the County of Kern for refusing to provide relevant information to Kern County Fire Fighters Association, Local 1301. PERB concluded the County violated the Meyers-Milias-Brown Act by withholding the information from Local 1301.

For over a year, the County dragged its feet and engaged in bad faith bargaining. In July 2018, Local 1301 and the County began negotiations for a successor Memorandum of Understanding (“MOU”). The bargaining ended in a mediation and a fact finding hearing between the parties. Local 1301’s chief negotiator Robbie McCandlish and attorney Howard Liberman’s hard work during the hearing got a favorable fact finding report for Local 1301. The report noted the County had over $180 million in reserves, Local 1301 were the lowest paid personnel in the surveyed departments, and that members have seen minimal to no pay increases since 2008.

During bargaining, the County told Local 1301 it intended to cut approximately three million dollars from the Fire Department’s overall budget. The County insisted on concessions from Local 1301. Local 1301 decided to seek out alternative cost saving proposals in an effort to mitigate the harm a pay cut would have.

Beginning in October 2018, Local 1301 requested information regarding healthcare plans, member information, and claim details to obtain health care cost quotes from outside companies to formulate its proposals for group insurance plans during bargaining.

Between December and April 2019, the County slowly provided different variations of aggregate information for enrollment count, number of dependents, workers’ compensation claims, and annual medical claims. Local 1301 continued requesting the specific information and attempted to work with the County to find an agreeable way to provide the information that would not allow the identification of any members. It was not until April 2019 the County finally told Local 1301 it could not provide the information claiming it could violate health privacy laws.

PERB’s Complaint concluded the County refused to provide information relevant and necessary to Local 1301’s discharge of its duty to represent employees. Further, the County violated the MMBA by refusing to meet and confer in good faith over the requested information, interfering with members’ rights to be represented, and interfering with Local 1301’s right to represent members.

This decision confirms an employer’s duty to either supply relevant information or timely and adequately explain why it cannot provide the information. Even if the employer ultimately provides the requested information, it will not excuse an unreasonable delay.  An employer’s refusal to provide information amounts to bad faith bargaining in violation of the MMBA.

Delays in Obtaining Medical Treatment

First, it is important to note that securing medical treatment under a workers’ compensation claim is procedurally quite different than treating with one’s family doctor. When a patient receives a prescription for medication or any other form of treatment under private insurance, the patient usually expects the pharmacy to fill the prescription immediately. However, within the context of a workers’ compensation claim, merely obtaining a prescription and presenting it to the pharmacy may not be sufficient to ensure the employer will be responsible for the cost of that prescription.

In fact, if one attempts to procure treatment for a work injury as if it were a non-work-related condition, that persons runs the risk of becoming financially responsible for the treatment at issue.

Naturally, steps should be taken, when possible, to avoid that undesirable outcome.

Ensuring the employer’s insurance company is financially responsible for medical treatment begins with adhering to and considering the necessary steps of the mandatory Utilization Review process.

What is Utilization Review?

For all work-related injuries occurring after January 01, 2013, pursuant to SB 863, all medical treatment requests under workers’ compensation claims must be submitted to Utilization Review. 

It should be noted that Utilization Review has an extensive legislative history in the State of California and is implicated by many sources of law. Those sources include but are not limited, to Assembly Bill 749, Senate Bill 899, and are further codified in California Labor Code Sections 4062 and 4610.

Utilization Review applies within the first 90 days of filing a claim, also known as the investigation period allocated to the Employer, but the Employer is only responsible for the cost of reasonable medical treatment, up to $10,000.00, during that 90-day-period. After the first 90 days, the insurance company must have accepted liability for the claim/body part for which treatment is being sought, prior to there being a possible application of utilization review.

If your claim is denied or even if it has been accepted, it may be an appropriate time to seek legal counsel to facilitate administration of a claim for a workplace injury.

Initiating Utilization Review

The purpose of utilization review is to answer the question of whether treatment is medically necessary according to the relevant treatment guidelines. The possible answers to that question are: yes (“certified”); no (“non-certified”); or in-part yes or no (“modified”).

If the Employer requests Utilization Review, that request is first triggered based upon steps taken by an injured worker’s Primary Treating Physician.

Primary Treating Physician (“PTP”) is a defined term by law and is the doctor designated in advance with the Employer to fulfill the duties indicated in California Code of Regulations Section 9785, among others. Some of those duties will be outlined below and are much different than those a private doctor would need to follow.

On that note, choosing a PTP may be an appropriate topic of discussion with an attorney.

Further, if liability for a workers’ compensation claim or any aspect thereof has been accepted, an injured worker’s PTP, requesting treatment, must submit a Request for Authorization (“RFA”) and Physician Progress Report (“PR-2”).

The RFA is a state required form specific to the purposes of requesting treatment under a workers’ compensation claim. The RFA is mainly a claim demographic form, identifying the injured worker, workers’ compensation insurance carrier, and the PTP. However, and importantly, the RFA also includes the name and diagnostic codes of the specific treatment being requested in terms of quantity, frequency, and duration. The PTP must sign the RFA and transmit it along with the PR-2 (progress report) to the workers’ compensation insurance carrier to request medical treatment.

It is important to note that those steps, although necessary, do not guarantee whether the outcome of utilization review is certified; non-certified; or a modification. Further, a utilization review decision on the basis of any one RFA and PR-2 does not necessarily mean that future RFAs and PR-2s will result in the same decision (i.e. certified; non-certified; or modified).

Similarly, if treatment is approved or approved-in-part, the workers’ compensation insurance carrier will be financially responsible for the approved portions of request(s) associated with a given RFA and PR-2. So, since any approved portions stem from one RFA and PR-2, the PTP will have to complete subsequent RFAs and PR-2s for any future treatment requests. Thus, once the PTP transmits a RFA/PR-2 to the workers’ compensation insurance carrier, timing issues must then be considered.

Timing Under Utilization Review:

The gist of these timing elements, for better or worse, often amounts to delay in obtaining medical treatment.  California Labor Code 4610(g)(1) provides that a utilization review decision must be made within 5 working days from the receipt of information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician. Further, California Labor Code 4610(g)(3)(A) requires that a decision be communicated to the physician within 24 hours of the decision and in writing within two business days to the physician, employee, and if represented, legal counsel as well.

These timing provisions apply to the workers’ compensation insurance carrier that receives an RFA and PR-2 from an injured worker’s PTP. The timing provisions may seem a disadvantage to persons who expect to obtain treatment in the same manner as from one’s family doctor. However, the timing issues presented by utilization review may provide guidance in developing a treatment plan for a work injury.

Failure by a carrier to timely respond to all RFA’s and PR-2s (i.e. to conduct utilization review) means that medical necessity is an issue that may be properly decided by the Workers’ Compensation Appeals Board, based upon substantial evidence. Thus, if an injured worker believes that an RFA and PR-2 has not received a timely response then it would be appropriate to seek legal counsel to discuss the propriety of pursuing the matter further before the Workers’ Compensation Appeals Board, or otherwise. However, if a utilization review decision is timely, but the decision is denial of treatment or modification then an injured worker’s sole remedy is to file for Independent Medical Review (a topic to discuss further with an attorney).

Concluding Remarks:

Obtaining medical treatment under a workers’ compensation claim is more complicated than simply taking a prescription to the pharmacy and can often be a source of delay. However, working with one’s workers’ compensation PTP and/or legal counsel are ways to help facilitate treatment.

It is important to note that this article is not an exhaustive explanation of all nuances pertaining to utilization review.

This article is intended to provide only general information regarding the procedural steps and timing issues that must be considered when pursuing medical treatment under workers’ compensation.

If you have suffered a work injury or are considering legal representation related to workers’ compensation issues, please contact our office at (916) 446-4692 for a free consultation.