CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
A recent webinar addressed the issue of Long COVID and some current impacts on employment in the U.S.
By Roger Rabb, J.D.
While most of the media attention associated with the effects of COVID-19 infection has focused on test results, hospitalizations, and deaths, over two years into the pandemic more attention is now being given to the lingering long-term effects of the virus suffered by some patients, so-called “Long COVID” or “Long haul COVID.” In a recent WCRI webinar from the Brown University School of Public Health’s Long COVID Initiative, epidemiologist and emergency physician Dr. Francesca Beaudoin discussed the knowns and unknowns about Long COVID and some current impacts on employers and employees.
As defined by the World Health Organization, Long COVID generally begins within three months of a probable or confirmed COVID-19 infection and the symptoms last at least two months. Although symptoms vary, they commonly include fatigue, shortness of breath, pain, anxiety, poor sleep, and cognitive disfunction. Symptom fluctuations can occur and patients suffering these effects may recover and then relapse. To be classified as Long COVID, there must be no alternate diagnosis to explain the symptoms.
It is estimated that up to 24 million Americans may currently suffer from Long COVID, although anyone infected with the virus is at risk. Those patients who suffered from severe acute infection early on, or were among those who had longer hospital stays, are at greater risk, as are those with comorbidities such as diabetes. Females and older persons are also at higher risk. Although proper treatment information is still being developed, there is evidence that COVID-19 vaccination can help. Two doses of a COVID-19 vaccine seem to reduce the risk of getting Long COVID, and some studies even indicate that getting vaccinated after getting Long COVID may help reduce symptoms.
Dr. Beaudoin shares some statistics showing that Long COVID is having a negative effect on the workforce. Of those suffering from Long COVID, it is estimated that slightly more than 1 million workers in the U.S. are completely out of work due to these symptoms, while another 2 million or so are estimated to have reduced their work hours for this reason. Moreover, as of July 2021, Long COVID could be classified as a disability under the federal Americans With Disabilities Act and the Rehabilitation Act, and according to the Bureau of Labor Statistics 1.2 million more people were identified as having a disability in 2021 than in 2020, and 65% of those were under the age of 65, suggesting that most of this increase is among those who are still generally part of the workforce. However, not all persons suffering from Long COVID would necessarily meet the applicable federal definition of disability. The term is limited to a physical or mental impairment that substantially limits one or more major life activities, while the personal impact of Long COVID can cover a wide spectrum from “minor annoyance” to “debilitating illness.” Dr. Beaudoin also notes certain analytic impediments to generating accurate numbers for these purposes, recognizing that there is no diagnostic test for Long COVID and not all standard COVID testing can be confirmed, both of which may make it difficult to get a confirmed diagnosis of Long COVID in the first place.
While COVID-19 diagnoses are covered under workers’ compensation for some workers in some states, Dr. Beaudoin notes the challenges to proving a workers’ compensation claim for Long COVID, including an additional burden of proof for patients to prove that their lingering health issues are directly associated with their original COVID-19 diagnosis and not due to an alternate etiology, especially when there is an extended period of time between claim incidents or the initial COVID case was asymptomatic or lacked a positive COVID test.
In addition to these general workers’ compensation claim issues, Dr. Beaudoin also shared some concerns or insights provided to the Long COVID Initiative by workers’ compensation system participants. For example, some Long COVID patients expressed concerns because they had been unable to work for many months, some more than a year, and many were eager for a return to work and to achieve a sense of normalcy. Other patients expressed frustration with the medical community, with complaints ranging from the extensive diagnostic testing needed to rule out other causes to a lack of research on the topic altogether.
Employers speaking with the Initiative noted that while there has been much attention given to testing and vaccination, employers lacked knowledge or guidance on how to handle the ongoing pandemic, including how to deal with and mitigate the impacts of Long COVID in the workplace. Despite recognition of Long COVID as a potential disability under federal law, employers lacked guidance on how to recognize whether Long COVID was impacting an employee’s ability to function. In general, employers expressed the need for more research and education to develop best practices and policies to deal with the issue in different industries.
The issues shared by policymakers were largely based on the lack of sufficient data to make informed decisions. For example, policymakers stated that disaggregated data is needed in order to understand the demographic impacts of Long COVID. Similarly, prevalence and cost data are needed by policymakers, insurance carriers, and health care systems to see who is truly being impacted by Long COVID and to set financial policies to support those people who suffer with long-term symptoms.
Despite the present lack of data necessary for providing answers to these issues, Dr. Beaudoin shared some points of immediate guidance for employers. Specifically, employers were cautioned to expect increases in job accommodation requests related to Long COVID and should allow for flexibility when dealing with these concerns. In addition, employers were encouraged to help workers understand the benefits available to them and take steps, if necessary, to reduce any stigma that might attach to a Long COVID diagnosis among employees, including awareness of mental health issues that employees dealing with the ongoing effects of Long COVID might experience.
© Copyright 2022 LexisNexis. All rights reserved.