Grinberg: COVID-19 Presumption Revisited

Tuesday, April 21, 2020 | 1

COVID-19 has had quite an impact on attending hearings before the Workers' Compensation Appeals Board.

Gregory Grinberg

Starting April 13, each workers’ compensation judge had an assigned phone number to allow parties attending mandatory settlement conferences to call in and discuss the matter over the phone. The parties were instructed to complete five-pagers and e-file or email them to WCJs the night before the hearing.

I had three such MSCs and let me tell you, this is awesome. If I were asked, I would urge us to consider making mandatory settlement conferences via conference telephone call the norm. Parties are required to appear having already reviewed their cases and ready to either settle or go to trial. 

The cases are given attention by the WCJ over the phone in a systematic process without having to track down the opposing counsel, whether that be in the cafeteria, outside having a cigarette or in the secret bar-and-lounge that only humble bloggers know about.

It’s been only one week, but, so far, the system has been efficient and relatively smooth. If you nurture a grudge that the opposing side shows up to court completely unprepared and learns his or her file on the go, perhaps this is the system to weed such behavior out.

Now, since my last blog post, where I valiantly argued that there is absolutely no need to have a presumption of compensability for COVID-19 cases among grocery workers, I have received a surprising bit of email traffic making some very valid points. The thrust of the arguments has been that whereas I would spend only 30 minutes to an hour at the local grocery store, the grocery store worker would spend eight hours or more there.

As such, the emails argued, perhaps the grocery store worker is at greater risk than the public because the grocery store worker cannot retreat to shelter-in-place until completion of the eight-hour shifts (plus commute time) that are part of the job.

I completely and totally agree. It sounds like there are going to be cases where the injured worker can show, through time sheets alone, that it is more likely than not that the COVID-19 applicant has come down with and suffered from is industrial.

But I submit this to you: Why, then, do you need a presumption? If it’s this obvious, then file for a priority conference and get a finding of fact that the injury is industrial. It’s not like you have to pay for a qualified medical exam, right? Defendants are forced to do that, sometimes even when the dispute could be resolved by a factual inquiry. 

But let’s get real for a second: What presumption is going to be limited in scope to the eight-hour employee valiantly providing grocery service to the teeming masses for 40 hours a week? No, of course not, the presumptions would also include the recent hire that has worked only one week when the incubation period for COVID-19 can last as long 11.5 days (if not longer).

What about the employee who doesn’t interact with customers but is on the night shift re-stocking? What about the loading dock employee who doesn’t see customers? The butcher? The baker?

Although the points raised by some of my readers are well taken, I urge you to remember that this only proves the overarching point: There is no basis for a presumption. If your case is so slam-dunk, do exactly what we were all trained to do for three years: Go to court and prove your case. 

And with that, I wish you good health and another week surviving cabin fever. 

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.