COVID 19, Safety Personnel and Workers' Compensation

Updated: August 30, 2020



This blog is going to be about COVID-19 as it relates to safety personnel. To be perfectly frank, I have avoided discussing COVID-19, because I think we're all tired of it, and we have COVID-19 fatigue, but I've been starting to get some phone calls from my safety personnel reporting that they've contracted COVID-19. It appears that work is causing COVID-19 based on the facts given to me. I'm seeing two types.  First, I'm seeing extended stays in hospitals. Second, I'm seeing people that have no hospital stays or short stays in hospital. This second group is sounding like the people who we read about who are called "long haulers." 

The symptoms they're describing is fatigue muscle or body aches, shortness of breath, difficulty breaking, etc.  I talked to some that have been on oxygen for months and they are having difficulty concentrating and focusing. Since they're fatigued, they don't want to exercise and be active, and for a lot of my safety personnel, that's a way of life. It's very frustrating for them. Some personnel have mentioned headaches, difficulty sleeping, anxiety, memory problems and dizziness. 

The symptoms of difficulty concentrating, focusing, headaches, anxiety, memory problems, and dizziness sounds like head or brain injury cases that we handle in workers' compensation.  The symptoms are the same.  We also see these symptoms in stroke cases, heart cases, or people who lack oxygen during surgery.  This is interesting, because, what we're hearing about for most people is the lung problems including trouble breathing, heart problems and general flu-like symptoms. We're hearing that people are having other organ problems, because they're starting to see that this illness affects the blood.  However, cognitive issues are something that I don't think any of us hear a lot about on the news. I've talked to some safety personnel who cognitive problems. 

The injury is still an unknown to doctors and obviously, it's going to be an unknown to us as attorneys.  I've had some of my clients that have called me and asked me, "Well, have you handled any of these cases?" And most of us know, even if you have them, we haven't "handled them," because this is a completely new thing. Doctors don't even know what to do with it, so we as workers' compensation attorneys are still learning as we go along. To be completely honest, if you're a good workers' comp attorney, you have to say to somebody, "I really haven't handled one of these cases because they're completely new."

However, we do have knowledge to pull from from working other cases.  For instance, if I have somebody with a head injury and they're having cognitive problems such as the dizziness, difficulty concentrating, anxiety, depression, we can apply that knowledge to cognitive problems coming from COVID-19.  If a COVID-19 symptomatic client is reporting heart damage, we will apply our knowledge from handling heart cases.  Attorneys who handle safety personnel should have knowledge on heart claims.  If COVID-19 has caused lung damage, then we apply our knowledge from lung cases.  If an attorney has represented firefighters, then they've handled lung problems.  Other end organ damage is often associated with heart problems, so if COVID-19 has affected other organs, most attorneys who handle safety personnel have dealt with end organ damage as a consequence of another problem.

Where am I getting calls right now is the question? I haven't had any calls yet from my CAL FIRE clients, although I'm wondering what this fire season will bring as the peak fire season kicks off, and we have firefighters in their family units or groups.  When they're not fighting fires, where they will be and how close in proximity they will be with other firefighters will determine how COVID-19 affects them. We just don't know yet. 

I've had calls from correctional officers and CDCR. As you may know (those of you in that community who are members of CCPOA and CCSO), you know that San Quentin has had quite a few cases. There's been quite a few up in Susanville, mainly at CCC.  I am hearing about High Desert cases. There are some in the Central Valley as well as Los Angeles County. 

We're going to hear about sheriff, police, and California Highway Patrol.  Obviously when they're restraining suspects or detaining somebody, they're in much closer contact than most of us in our jobs, and so I'm expecting to get those calls.

What do you do when you think that you've contracted COVID-19? 

You need to contact a workers' compensation attorney. Evidence needs to be gathered, so a causation can be proven. The laws right now on COVID-19 on causation is a fluid situation.  Whether or not there's presumptive injuries on long term basis is a fluid situation.  Labor, the legislature, the Governor, as well as my organization, the California Applicants' Attorneys Association are working on that right now. We still don't have a definitive answer on a la. There is a temporary executive order that Governor Newsom provided for a period of time, and so that may be applicable to you. The bottom line is you want to contact a workers' compensation attorney, because whatever we end up with as far as a standard, the evidence and the way it's collected, and the strategy in proving the case is important.

The biggest thing when you're dealing with safety personnel (I say this is the biggest thing because I often say this to my clients) are the other issues in work-related injuries where are more important than the workers' compensation case itself. I don't want to minimize the workers' compensation case. Obviously, I'm a workers' compensation attorney, so the workers' compensation case is important.  However, if you're not able to go back to work, you will be substantially incapacitated from your job.

Industrial Disability Retirement (particularly if your career has been cut short) will be a serious consideration.  Industrial Disability Retirement will be critical to you because of the benefits of Industrial Disability Retirement. 

In order to be eligible for Industrial Disability Retirement, causation has be proven for the workers' compensation claim. In the end, you have to have a compensable workers' compensation case on the injury that is causing you to be substantially incapacitated from your job. If COVID is the reason why you're on oxygen or you're not able to do your job, then we have to prove it is work related in order to be eligible for Industrial Disability Retirement. 

Therefore, causation with COVID-19 cases will be the battleground in workers' compensation litigation. The result of that litigation will determine whether or not an injured worker receives workers' compensation benefits.  If you're safety and Industrial Disability Retirement is an issue, then it's critical that the underlying workers' compensation cause is proven work-related.