General Foundry case does not apply to COVID claims
- October 13th, 2021
- Tom Richard
- No comments
Some applicant’s attorneys have advocated for a delay in the final resolution of COVID workers’ compensation claims by applying the General Foundry case. However, our research shows that General Foundry does not apply to COVID-19.
General Foundry held that the WCAB may tentatively rate the permanent disability of an employee with a progressive disease (in that matter, asbestosis) and order PD advances based on that tentative rating. It may then reserve jurisdiction indefinitely to make a final determination of permanent disability when the employee’s condition is permanent and stationary, or when the employee’s permanent disability is total and further deterioration would be irrelevant for rating purposes. Gen. Foundry Serv. v. Workers’ Comp. Appeals Bd., 42 Cal. 3d 331, 721 P.2d 124 (1986)
General Foundry only applies to insidious, progressive diseases, even where there is strong evidence that future surgery will be required. For example, in Ruffin the WCAB held that applicant’s knee injury, which doctors opined would require a total knee arthroplasty in the future, was not a progressive disease within the meaning of General Foundry, and that if jurisdiction were reserved to award further permanent disability in the circumstances of such a case, the five-year statute of limitations of §5804 and 5410 would cease to have any effect. Ruffin v. Olson Glass Co., 52 Cal. Comp. Cases 335, 1987 Cal. Wrk. Comp. LEXIS 2444 (W.C.A.B. August 21, 1987).
What is an insidious, progressive disease?
“The characteristics of the ‘insidious, progressive disease’ to which the court refers are (1) that it is caused by a ‘remote’ and ‘undramatic’ work exposure—one that is likely to be undetected at the time, or if detected, the significance is likely to be unappreciated (2) that the disease worsens over time, but at a rate so gradual that it is well established before becoming apparent and, (3) that it has a ‘long latency period’ between exposure to the risk and the onset of symptomatology.” Ruffin v. Olson Glass Co., 52 Cal. Comp. Cases 335, 1987 Cal. Wrk. Comp. LEXIS 2444 (W.C.A.B. August 21, 1987).
It must be both insidious and progressive
“In order for a condition to qualify for an insidious disease process so that jurisdiction can be reserved on the issue of permanent disability pursuant to General Foundry, it must both be insidious and progressive.” Sandoval v. State, 2015 Cal. Wrk. Comp. P.D. LEXIS 404; citing Patrick O’Brian v. County of San Diego (2012) W.C.A.B. No. ADJ7441132 (San Diego District Office).
For instance, in Seavello, the court reversed a finding that skin cancer was an insidious disease because the cancer was completely excised, and therefore the skin condition could not fairly be described as progressive. Seavello v. WCAB, 77 Cal. Comp. Cases 596 (May 29, 2012)
COVID is not insidious
An insidious, progressive disease is defined as insidious if it “proceeds in a gradual, subtle way, but with harmful effects”, or, “because it can develop or recur without symptoms at a distant time from the initial instigating cause.” Gregoryk v. State, 2012 Cal. Wrk. Comp. P.D. LEXIS 412; Sandoval v. State, 2015 Cal. Wrk. Comp. P.D. LEXIS 404.
In Gregoryk, applicant’s chronic myelogenous leukemia was found to be insidious because it “proceeded/progressed in a sub-clinical manner, though it replaced normal bone marrow elements with malignant cells until it finally became clinically apparent.” The court noted that chronic myelogenous leukemia had the characteristics of an insidious, progressive disease in that a) it gradually worsened and established itself over time (as shown by fatigability and bruising), and b) it also had a long latency period between exposure and onset of symptoms.
This long latency period was the primary concern motivating the General Foundry holding:
If the Board makes a permanent disability rating too early, the employee faces the risk that the five-year statute of limitations will preclude him from seeking full compensation once his disease is stationary or he has reached 100 percent disability. This risk is especially grave considering the long latency period of diseases arising from exposure to asbestos in the workplace. Gen. Foundry Serv. v. Workers’ Comp. Appeals Bd., 42 Cal. 3d 331, 721 P.2d 124 (1986)
COVID, however, does not have a long latency period, so the risk of non-symptomatic insidious progression does not apply here. On the contrary, COVID generally develops and peaks relatively quickly. Mild COVID cases typically recover within two weeks, while those with severe or critical diseases may take three to six weeks to recover. Some early studies suggest 10% to 20% of people with COVID-19 will experience symptoms lasting longer than a month. https://covid.joinzoe.com/post/covid-long-term.
“Long COVID” is a condition characterized by long-term sequelae appearing or persisting after the typical convalescence period of COVID-19. https://www.nature.com/articles/s41586-021-03553-9. The incidence of Long COVID declines over time, as many people slowly recover. https://www.ons.gov.uk/news/statementsandletters/theprevalenceoflongcovidsymptomsandcovid19complications.
The symptoms linger, but the disease does not change.
The important thing to note is that Long COVID refers to those suffering from long-term symptoms rather from a disease that gradually worsens over a long period of time. In terms of General Foundry, there is no risk that COVID applicants will be precluded from seeking full compensation within the five-year statute of limitations due to a long latency period between exposure to COVID and the onset of symptomatology. Though COVID symptoms may persist, they quickly arise and become stationary. Long COVID does not gradually worsen without symptoms. Just the opposite, Long COVID cases generally result in improvement over time.
COVID is not progressive
An insidious, progressive disease is defined as progressive if there is “a reasonable degree of medical probability that it will progress or worsen over time”. Silva v. State Highway Patrol, 2013 Cal. Wrk. Comp. P.D. LEXIS 229. The fact that recurrence can be limited or prevented by continuous observation makes the disease a progressive one. Sandoval v. State, 2015 Cal. Wrk. Comp. P.D. LEXIS 404.
In Sandoval, applicant’s Grade 3 carcinoma was held a progressive disease because it placed him at a higher risk of future invasive cancer and required regular visits to a urologist, intermittent urine immunologic studies, and annual cystoscopy for surveillance.
Similarly, in Gonzales, applicant’s Valley Fever was held a progressive disease, even though the medical record established that applicant’s current medication regimen effectively controlled the disease, because there was significant potential for relapse once the treatment was discontinued. Gonzales v. Robert Heely Constr., 2014 Cal. Wrk. Comp. P.D. LEXIS 497.
For comparison, see Silva, where applicant’s schwannoma (a benign tumor) was held not to be a progressive disease because “while applicant’s schwannoma must be monitored for recurrence, no doctor has opined, with a reasonable degree of medical probability, that it will progress or worsen over time. While applicant’s schwannoma is insidious, it is not progressive.” Silva v. State Highway Patrol, 2013 Cal. Wrk. Comp. P.D. LEXIS 229.
In summary, COVID is neither an insidious nor a progressive disease. There is no medical probability that the Long COVID disease will progress or worsen over time. Long COVID more closely aligns with the disease in Silva, where long-term symptoms may be monitored, but there is no probability that they will progress or worsen over time. Moreover, unlike with the cancer cases discussed, the occurrence of Long COVID cannot be limited or prevented by continuous observation.