Covid-19 Presumption Statutes

In a recent QME Long COVID injury claim alleging that the source of contact with COVID was work-related, I came across the Executive Order N-62-N initiated by California Governor Gavin Newsom in response to the COVID pandemic. As a result, COVID-19 Statutes were enacted including Labor Code 3212.86 which explains the legal presumption of a COVID-19 injury to any employee provided there are sufficient factors in the case that gives rise to the presumption. These factors include that the injured worker must prove that they were diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment which does not include the employee’s residence.

If the employee meets all the elements, the presumption of injury comes into effect and the burden of proof shifts to the employer to disprove the elements.

This brings up the issue of how to deal with SB863 and LC4660.1 which states, “There shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder or any combination thereof arising out of a compensable physical injury.” The problem is that all of these conditions are usually seen in the extended Long COVID cases and if the COVID-19 infection is considered a compensable physical injury, the add-ons cannot be applied unless the presumption allows it, which is questionable.

“Food for thought.”