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By Robert G. Rassp, author, The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis)
DISCLAIMER: The following discussion is based on independent research by the author including sources from the Centers for Disease Control and Prevention and the Johns Hopkins School of Medicine and School of Public Health. The discussion is not connected to or associated with the State of California Department of Industrial Relations, the Division of Workers’ Compensation, or of the Workers’ Compensation Appeals Board. The discussion below is written solely by the author in his capacity as a private citizen and as the Chairman of the Board of Directors of Friends Research Institute which has no affiliation with COVID-19 research protocols as of May 2020.
Workers’ compensation claims filed by employees who allege they have contracted the COVID-19 infection while on the job are expected to emerge in the next few months and perhaps years. Liability for those claims may be readily accepted for some employees who were at great risk of contracting the infection at work, such as first responders. Liability for non-first responder employees may be problematic, requiring proof based on reasonable medical probability that it is more likely than not that the illness was due to work-related exposure to the virus.
Counsel should become familiar with the nomenclature involving the COVID-19 pandemic. The virus that causes COVID-19 is referred to scientifically as “SARS-CoV-2” that represents the severe acute respiratory syndrome novel coronavirus 2. The word “novel” means what it says—we have never seen this version of a coronavirus before. Remember, the common cold is a result of various coronaviruses categorized together as “rhino-viruses.” Once you get a cold, your body develops the antibody to that particular cold virus and you never get that version again. Unfortunately, there are hundreds of rhino viruses going around and, like the influenza viruses, they quickly mutate. In contrast, the term COVID-19 refers to the disease process caused by the SARS-CoV-2 virus. We don’t know if and how the SARS-CoV-2 virus mutates.
The attractive depth-charge looking spherical illustration you see in the media of a SARS-CoV-2 virus is actually a CDC (Centers of Disease Control and Prevention) artist’s rendition of what the actual virus looks like. A single virus is 60-140 nanometers in diameter, where 1 nanometer is 1 billionth of a meter. The filaments of the corona are proteins that latch on to lung cells which triggers an immune system response. That war goes on inside people’s lungs, and the detritus of the war results in destruction of alveoli and inflammation of lung tissue. CT scans of infected patients reveal a finding called “ground glass opacities” which are usually seen in patients with severe pulmonary fibrosis. Infections can cause an immune system response that results in inflammation of lung parenchyma and deposits of detritus into the air sacs (alveoli). What should appear to be a clear black outline of lung has clouds of haze. Patients have high fever, severe coughing, chest pain, and sometimes severe loss of pulmonary function.
I. How Does the Virus Impact the Human Body?
The SARS-CoV-2 virus is proving that it can be a whole-body assault—potentially affecting other internal systems besides the lungs and pulmonary system. Many COVID-19 patients from China have experienced liver function impairments long after their acute physical symptoms have resolved. This was apparent after two negative assays for the SARS-CoV-2 virus were obtained and the patients were discharged from active care. In fact, 12% of discharged patients had heart failure. Additionally, there is evolving evidence that COVID-19 can affect the lungs, heart, brain, liver, kidneys, endocrine system, and the blood system. At the writing of this update in early May 2020, there are over 3,500,000 people worldwide who have been infected by the disease, resulting in the death of 227,000, based on epidemiologists at Johns Hopkins and the CSTE: Council of State and Territorial Epidemiologists. Over 66,000 of those deaths occurred in the United States. That being said, 80% of the people who become infected experience mild to moderate symptoms not bad enough to require hospitalization. On the other side of that statistic, fifteen percent of cases are severe enough to require supplemental oxygen while five percent require mechanical ventilation. Most infections cause symptoms to occur within five days of exposure, lasting seven to fourteen days. People with the infection follow a bell-shaped curve reflecting how long they are ill.
II. Will the Disease Antibodies Protect the Patient in the Future?
One concern is whether and to what extent does a person develop immunity after a COVID-19 infection. This section was written only four months after the first patient tested positive for the infection in the United States, and data on this subject has not sufficiently been developed.
Another concern is that we do not know if the COVID-19 virus stays in a person’s body and can re-emerge later in life. Some good examples include the herpes virus that starts as chicken pox in children and later in life, for some patients, causing shingles. The virus that causes Hepatitis B causes liver cancer decades later. Even though the Ebola epidemic in western Africa subsided in 2016, years later 40% of surviving patients developed blindness due to a recurrence of that virus in the vitreous fluid of the patient’s eyes. So far, it appears that the novel coronavirus does not mutate easily like influenza viruses. It may be too soon to conclude this. It remains to be seen if and how SARS-CoV-2 may mutate over time.
We do know that some patients who had COVID-19 have permanent damage to their lungs. In the original SARS epidemic, 33% of patients had long-term lung impairment after three years. The same percentage of patients developed pulmonary fibrosis who had a MERS infection. So far, patients who had had COVID-19 and survived have lost 20-30% of lung function. Therefore, it is strongly recommended that patients who survived COVID-19 get annual lung scans and pulmonary function tests to see if there is progressive lung damage or improvement.
COVID-19 infection can affect a person’s heart both acutely and in some cases permanently. Emerging data indicates that many COVID-19 patients suffer from blood clots, some so clinically significant that the loss of a leg has occurred. Amid the cascading symptoms of the acute phase of COVID-19 infection in some patients, the heart is deprived of oxygen due to reduced lung function, other body systems are affected, and the body responds with an inflammatory systemic reaction. Blood clots can form, causing strokes, heart attacks, and venous embolisms. Many COVID-19 patients will become lifetime cardiology and pulmonary patients. We do not know the long-term prognosis of these patients.
In some COVID-19 patients, the immune system goes haywire and attacks the body’s organs, causing a hyper-inflammatory response. In medicine, it is called a cytokine storm, which is an immune system response to an infection including influenza, pneumonia, sepsis, and now COVID-19 infection. Cytokine storms can affect a person’s lungs, heart, and kidneys. This occurs in some patients who are very ill from COVID-19.
III. Determining Industrial Causation
How can COVID-19 infections be deemed work related? For first responders such as police, sheriff deputies, paramedic and firefighters, Labor Code §§ 3212 and 3212.8 provide a duty related presumption for heart, pneumonia and for “blood-borne infectious disease” respectively. Section 3212.8(d) states: “For the purposes of this section, ‘blood-borne infectious disease’ means a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including those pathogenic microorganisms defined as blood-borne pathogens by the Department of Industrial Relations.” Since COVID-19 infection causes pneumonia, the application of the presumption is clear for first responders. As to the question of whether COVID-19 is a “blood-borne infectious disease”, it is clear that while the infection begins in the lungs, the viral load becomes systemic.
The causation analysis is somewhat different for non-first responder employees, such as physicians, nurses, cleaning crews in hospitals, grocery clerks and other employees who claim industrially related COVID-19 infection. The compensability of an occupational disease generally requires an employee prove that it is medically probable that he or she experienced a higher risk of work-related exposure causing the disease due to work duties compared to the risk of exposure to the general public [see LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 72 Cal. Rptr. 2d 217, 63 Cal. Comp. Cases 253 (heart attack while at a conference died of infection from heart surgery); Pacific Employers Ins. Co. v. Industrial Acci. Com. (1942) 19 Cal. 2d 622, 7 Cal. Comp. Cases 71 (traveling salesman contracts Valley Fever); Warner v. Industrial Acci. Com. (1935) 10 Cal. App. 2d 375, 51 P.2d 897 (employee contracts pneumonia while traveling on business); Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (Rojas) (2010) 75 Cal. Comp. Cases 1187 (writ denied) (hypersensitivity pneumonitis caused by long-term employment as a meat cutter/wrapper); ASR Construction v. Workers’ Comp. Appeals Bd. (David) (2016) 81 Cal. Comp. Cases 210 (writ denied) (world traveling manager contracted tuberculosis); OneBeacon America Ins. Co. v. Workers’ Comp. Appeals Bd. (Cole) (2016) 81 Cal. Comp. Cases 201 (writ denied) (Valley Fever for painter who dug ditches around building’s foundation); County of Orange v. Workers’ Comp. Appeals Bd. (Azoulay) (2017) 82 Cal. Comp. Cases 378 (writ denied) (bacterial infection in colon spread into circulatory system creating presumption per Labor Code § 3212.8 for a juvenile correction officer)].
It is well settled law that for occupational diseases that can manifest symptoms for years, the WCAB retains jurisdiction over temporary and permanent disability benefits despite a five-year statute of limitations. In General Foundry Service v. Workers’ Comp. Appeals Bd. (Jackson), [(1986) 41 Cal. 3d 331, 228 Cal. Rptr. 243, 721 P.2d 124, 51 Cal. Comp. Cases 375], the Supreme Court of California stated in its decision: “We conclude that the Board's reservation of jurisdiction on the issue of permanent disability in the case of insidious, progressive diseases serves to further the compensatory goals of the workers' compensation system. On remand, the Board may tentatively rate Jackson's known permanent disability [from asbestos related illnesses] and order advances based on that tentative rating. It may then reserve its jurisdiction for a final determination of permanent disability when either (1) his condition becomes permanent and stationary, or (2) his permanent disability is total (100 percent) and further deterioration would be irrelevant for rating purposes.” The future application of General Foundry to workers’ compensation cases involving COVID-19 infections is probable since the full epidemiology of the disease process is unknown since the virus that causes COVID-19 first emerged in humans in December 2019. We are learning about the immediate effect of the disease process, but the long-term effect of the condition is unknown. There are also legislative and administrative considerations involved that are beyond the scope of this discussion. Counsel should be aware of the Governor’s Executive Orders and any bills that are passed by the California legislature and signed into law that pertain to any presumption of compensability for first responders and employees who perform essential government functions during the pandemic.
IV. Permanent Disability Rating of COVID-19 Injured Workers
So, how are COVID-19 patients potentially rated under the AMA Guides? First of all, the patient has to be declared MMI, i.e., having reached maximum medical improvement. That date may be a moving target since it is unknown how long a given COVID-19 patient will have active symptoms.
A. Pulmonary Function
The first consideration for a WPI rating would include Table 5-12 on page 107 of the AMA Guides, 5th Edition. This table shows the overall WPI ratings for the four classes of pulmonary function and exercise test results. These ratings are based on pulmonary function testing, which includes forced expiratory volume in one second (FEV-1), forced vital capacity (FVC), the FEV-1/FVC ratio, Dco (diffusing capacity for carbon monoxide), Vo2 max (maximum oxygen consumption), and METS (metabolic equivalent tasks).
What is significant in the context of COVID-19 WPI ratings on a strict basis, is the METS or metabolic equivalent of tasks, which is reflected in both Table 5-8 on page 101 of the AMA Guides and Table 5-12 on page 107. A METS of 1.0 reflects how much energy is expended while a person is at rest doing nothing. So, a METS of 1.0 reflects the energy expended for autonomic activities—breathing, brain work, and basic movements we do while at rest. A man who weighs 154 lbs., with a METS of 1.0, expends 1.2 Kcal/minute of energy. He would expend 3 METS when walking about 2.7 miles per hour. A person who can exert 5.0 METS can perform an 18-hole round of golf or can walk 3-4 miles per hour for 20 minutes. A person with a METS of 7.0 can run 4-5 miles per hour for 20 minutes. A person who can achieve a METS of 10 or greater on a treadmill test is in excellent physical condition.
Table 5-8 has exertional values for the arduousness of work. So, light work would require sustained ability to perform at a METS of 2.0. Moderate work would require 2 to 4 METS. Heavy work would require 5-6 METS, very heavy work requires 7-8 METS, and arduous work would require greater than 8 METS. Under Table 5-12, a person with a residual METS of less than 4.3 and FVC of less than or equal to 50% would have between a 51% and 100% WPI rating. Similarly, a physician could utilize Table 3-6a based on residual METS due to the overall long-term effects of a COVID-19 disease process on residual exertional capacities.
B. Circulatory System and Heart Function
Many COVID-19 patients suffer from heart failure as a result of the attack of the virus on the lungs. This is because the exchange of oxygen from the lungs to the cardiovascular system can be severely compromised. Any residual cardiac impairment would be rated under Chapter 3 of the AMA Guides to include any permanent limitations in cardiac output or other functions including coronary heart disease (Table 3-6a on page 36), pericardial heart disease (Table 3-10 on page 52), and arrhythmias (Table 3-11, page 56).
In addition, WPI ratings could include consideration of other body systems permanently affected by a COVID-19 infection. A person who has to take blood thinners due to blood clots as a consequence of the disease could get assigned a WPI rating of up to 10% in the text on page 203 of the AMA Guides, along with Tables, 9-2, 9-3, and 9-4 for any residual blood disorders.
C. Liver Function
Permanent impairment of liver function due to COVD-19 infection is found on page 133 at Tables 6-7 and 6-8. All of these impairments are driven by objective liver function studies.
D. Miscellaneous Body Parts and Systems
There are cases involving COVID-19 infection where the blood clots are so severe that the patient has to suffer from an amputation of a leg. This results in a WPI rating of 28% for a below knee amputation and a 40% WPI rating for above the knee amputation under Table 17-32 on page 545. Similarly, many COVID-19 patients have a stroke, despite having no prior known risk factor for having a stroke. Chapter 13 of the AMA Guides would apply for WPI ratings due to a stroke for hemi-paraplegia, cognitive disorders, upper and lower extremity impairments, and overall brain function. See Tables 13-4, 13-2, 13-3, 13-4, 13-5, 13-6, 13-15, 13-16, and 13-17.
The residual disability for injured workers who contract the COVID-19 at work may be from 0% WPI to 100% permanent total disability, which means that each case has to be evaluated separately.
This discussion of COVID-19 is based on limited data that has emerged worldwide from the pandemic that began in December 2019. As time progresses, the data bank for COVID-19 will develop, and the discussion about causation of injury, causation of disability, prognoses, and the overall epidemiology of the disease will evolve. The discussion about industrial causation or work-relatedness of a COVID-19 infection is also in very early stages. The consensus of medical experts early in the pandemic is that control of the spread of the virus will depend on the earliest of herd immunity or the development of an effective vaccine. Remember, no vaccine has been developed for the HIV virus that causes AIDS and it has been since 1981 since AIDS was discovered. However, people who test positive for HIV infection can live long, productive lives due to the regimen of three or four antiretroviral drugs, collectively known as highly active antiretroviral therapy, or HAART.
Conventional wisdom is that due to SARS-CoV-2, we will have to continue with social distancing and infection prevention measures for years. We will remain optimistic that science will develop antiretroviral medications to mediate a COVID-19 infection until we achieve herd immunity or the development of an effective vaccine.
© Copyright 2020 LexisNexis. All rights reserved. This article was excerpted from the upcoming 2021 Edition of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, now on presale at https://store.lexisnexis.com/categories/shop-by-jurisdiction/california-157/the-lawyers-guide-to-the-ama-guides-and-california-workers-compensation-skuusSku58745.