Your humble blogger has the misfortune of reliving, frequently and without reason, some of his more awkward moments. Some as early as my formative years, some more recent. It’s never a pleasant experience and I would rather not — but awkward is as awkward does. 

Gregory Grinberg

Like those awkward memories, COVID-19 is going to remain with us, and make us fairly unhappy, for years to come.

When defending a COVID-19 case, though, the most obvious argument against compensability is that the exposure and infection occurred outside of the workplace, no? Given that employees naturally have privacy rights, trying to establish exposure outside of the workplace can be a challenge, certainly.

What better way to get the information about applicant’s non-work activities than to ask those living with applicant?

Well, that is the subject of the panel decision in Labella v. Marathon Petroleum, a panel decision issued by the WCAB late last month.

Applicant alleged injury in the form of COVID-19 related illness while employed by defendant.  Defendant then sought to compel the testimony of three witnesses who all, as claimed by defendant, lived with applicant. The petitions alleged the depositions were necessary “to obtain details of [applicant’s] possible exposure to COVID at home.”

Sounds reasonable, no? If one of the witnesses testifies to coming home with COVID-19 from a trip several days before applicant showed his first symptoms, wouldn’t that be relevant to the AOE/COE determination? Likewise, if no one at home had COVID19 symptoms prior to applicant showing his symptoms, wouldn’t applicant’s counsel be chomping at the proverbial bit to have those witnesses testify under oath and state this fact?

Well, the WCJ denied the petitions, reasoning “this court is unaware of any basis or jurisdiction for compelling a non-party to appear for deposition.” Defendant then sought removal.

The WCAB granted removal and sent the matter down for further development of the record, but did not reverse the denial of defendant’s petition out of hand. So, unfortunately, we do not have the fiery and affirmative right to depose family members regarding COVID-19 cases. However, the commissioners did provide some guidance.

The commissioners referred the parties to Labor Code section 5710, which allows the appeals board to cause the depositions of witnesses who need not be parties to the case (“a workers’ compensation judge, or any party to the action or proceeding, may … cause the deposition of witnesses residing with or without the state…”).  The opinion rejects the theory that only the employer’s employee witnesses may be so compelled.

The opinion further notes that the WCJ is empowered to issue protective orders, but that generally the WCJ and the WCAB can order non-party witnesses to sit for deposition.

So, while not definitive or controlling, it does signal that at least three WCAB commissioners appear inclined to allow defendants to depose family and co-habitants of COVID-19 claimants.

Your humble blogger would add some more food for thought — when we go down this road, we will inevitably run into issues of spousal privilege. Whether communications between spouses can be offered into testimony, or, more importantly, being called as a witness at all (see Evidence Code 970).  But, we don’t only live with our spouses alone. Children, roommates, grandparents, parents, etc., do not qualify for the privilege under EC 970.

Although, hopefully, cases of COVID-19 infection become less frequent, and the litigated cases related thereto become less frequent still, we will continue to see these cases crop up now and again.

Till next time, dear readers!

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.