NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
California workers’ compensation is off to an interesting start for the year.
The Last Of The Board’s En Banc Emergency COVID Orders Has Been Rescinded
The Appeals Board issued several En Banc decisions in response to the state of emergency brought on by COVID-19. These decisions temporarily suspended specific WCAB Rules of Practice and Procedure. As we began to come out of the pandemic, the Board began rescinding those rules suspensions. On February 28, 2023, California Governor Newsom terminated the COVID-19 state of emergency. In response, the Board issued a new En Banc decision on March 22, 2023, Misc. No. 268. This decision rescinded all remaining provisions of prior Misc. Orders in numbers 260, 261, and 266. As the Board noted in footnote 3, “By this order, the Appeals Board rescinds all remaining rule suspensions.”
So, what does this mean for workers’ compensation practitioners? This means that we are back to pre-pandemic rules and procedure, though there are hopefully a few changes that will remain with us. The Misc. No. 268 dealt with three specific areas where rules and procedure were temporarily suspended; witness signatures on C & R’s, electronic filing of documents, and walk through assignment hours. Let’s look at the impact of Misc. No. 268 in each of these areas.
Misc. No. 260, witness signatures
This is the area that may have the most day-to-day impact on practitioners. Misc. No. 260 temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures and specifically noted the suspension of the requirement in the Compromise and Release agreements for signatures from two witnesses. Further, signatures on the forms from all parties may be electronic. This Misc. Order issued March 18, 2020, in the very early days of the state of emergency.
Whether parties will once again have to obtain actual non-electronic signatures is still up in the air with some judges requiring this while at least one has said “If DocuSign is good enough for my mortgage, it is good enough for a C & R”. What we do know is that we once again require two witness signatures or completion of the notary form.
Electronic unwitnessed signatures on the Compromise and Release was an incredible time saver for both applicants and defendants and was very convenient. The parties could simply email documents and obtain quick electronic documents. There was no need for anyone to actually meet in person for signatures, scan signed documents, or mail them. There is now.
Misc. No. 261, electronic filing
This area will also remove a major convenience for the workers’ compensation practitioner. Misc. No. 261 temporarily suspended WCAB Rule 10940(b) regarding sending documents directly to the Appeals Board by fax or email for filing. This Misc. Order issued March 19, 2020, the day after Misc. No. 260.
Misc. No. 261 noted that Rule 10940(b) “prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board.” This was an incredible convenience that many took full advantage of. Email with the Board was quick and easy and a major time saver. That is no longer allowable and we are back to Rule 10205.7(c), which provides:
“No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers' compensation administrative law judge or the appeals board.”
Misc. No. 266, walk through assignment hours
Walk-through hearings area quick and easy way to move along a dispute or to obtain approval of a settlement. Misc. No. 266 temporarily suspended WCAB Rule 20789(c) requiring that each district office have a designee of the presiding judge available to assign walk-through cases from 8:00 am to 11:00 am and 1:00 pm – 4:00 pm on court days. This Misc. Order issued April 6, 2020, a few weeks after the other two Orders.
Rescinding this rule suspension should not have much practical effect as this has already been the case since the all DWC district offices except Eureka started again accepting in-person walk-through documents beginning September 6, 2022. Concurrently, effective September 6, 2022, the DWC stopped accepting virtual walk-throughs in the Lifesize platform.
Other Pandemic Changes
The Appeals Board instituted other changes during the pandemic that will hopefully remain with us. Possibly the most convenient and time saving of these changes is remote conferences, either by phone or Lifesize.
There is most definitely something to be said for in person appearances. This allows the parties to meet face to face and iron out conflicts not only in the case on calendar but in other matters as well. It also allows for the practitioners to build a sense of community.
However, the convenience of remote hearings and depositions is unmatched. There is also a major cost savings for travel and wait times. This also benefits witnesses who will not be as inconvenienced in appearing. It is still unclear whether wet signatures will once again be required.
A Board Panel Decided that "High-Velocity Eye Injury" Does Not Actually Require A Direct Injury to Eye In Order to Apply LC § 4656(c)(3(F) Exception to 104-Week TD Cap
A unanimous panel of Commissioners issued a decision in the case of Glick v. Knight Transportation Holdings, Inc. upholding an Award of up to 240 weeks of Temporary Disability indemnity benefits to an applicant based on CA Labor Code § 4656 (c)(3)(F), based on an extremely broad interpretation of the phrase "high-velocity eye injury".
The applicant was employed as a truck driver. On November 26, 2018, he was struck by a motor vehicle while crossing a street. The vehicle was traveling at approximately 30 miles per hour at the time of impact, and the applicant was thrown approximately 10 feet. Among the numerous injuries sustained were fractures to the right and left temporal bones.
The parties utilized a QME in Physical Medicine and Rehabilitation who determined that the applicant's "number one problem" was vision difficulty. A QME in ophthalmology also diagnosed vision issues including double vision which required eye muscle surgery.
Defendant ceased payment of Temporary Disability indemnity benefits on 11/24/2020 (based on the 104-week cap in LC § 4656 (c)(2). Applicant requested an Expedited Hearing on the issue, arguing that he had sustained a "high-velocity injury" to the eyes which entitled him to an extended period of benefits pursuant to LC § 4656 (c)(3)(F).
On December 21, 2020, the Workers' Compensation Judge issued a Findings & Award, finding that the applicant had sustained an injury to the "ophthalmology/vision/eye" caused by a "high-velocity impact", and that the applicant was entitled to ongoing temporary disability pursuant to LC § 4656 (c)(3)(F).
Defendant filed a Petition for Reconsideration, arguing that the "plain language or common meaning" of the term "high-velocity eye injuries" requires "at least some impact with the eye". The defendant cited the WCAB's "common sense" interpretation of "amputation" in its analysis of LC § 4656 (c)(2)(C) [Cruz v. Mercedes-Benz of San Francisco (2007) 72 CCC 1281]. The petition was denied.
In their decision, the Commissioners cited Glover v. ACCU Construction (2009) 2009 Cal. Wrk. Comp. P.D. Lexis 301, noting that in that case the applicant was awarded additional Temporary Disability benefits as a result of being struck by a metal fragment that was thrown by a mulching mower. The metal fragment entered the applicant's nostril and fractured the eye socket, but did not directly impact the eye ball.
In reaching their decision in this case, the Commissioners apply a very broad interpretation of the phrase "high-velocity eye injuries" to include an injury caused by "quickness of motion, rapidity of movement or speed imparted to something" that results in medical treatment to the eye. It does not require injury to the organ of the eye.
Apparently realizing the impact this decision might have, the Commissioners' opinion is careful to note that their analysis "is limited to the facts of this case".
Newly Enacted SB 1127 Changed the Landscape in Deciding Whether to Deny Certain Claims
SB 1127 became effective as of 1/01/2023. This changes the California workers’ compensation landscape in three ways:
While all three of the above-mentioned provisions have an effective dated of 1/01/2023, the increased penalty provision of newly created LC 5414.3 applies retroactively, regardless of whether the injury occurs before, on, or after the effective date.
The reduced decision period provision affects fewer injuries and illnesses when compared to the increased penalty provision. However, both provisions apply to specified safety officer claims for hernias, heart trouble, pneumonia, cancer, PTSD, tuberculosis, MRSA, biochemical substances, meningitis, skin cancer, Lyme disease and to the low back under the duty belt presumption.
By contrast, the penalty provision covers the three COVID-19 presumptions – 3212.86, 3212.87 and 3212.88 – whereas the reduced decision period provision does not. Thus, the timelines for decision-making specified for COVID presumption claims under SB 1159 still apply: 30 days under LC 3212.86 (essential workers with dates of injury before 7/05/2020); and, for qualified employees with a date of injury after 7/05/2020, LC 3212.87 (certain peace officers, firefighters and specified health care workers) allows for 30 days, whereas a decision must be made within 45 days for COVID claims arising under LC 3212.88 during a period of outbreak (for employees not covered by 3212.87).
Now more than ever, the defense community, and in particular claim examiners, should be cautious when determining if an employee has a qualifying job and qualifying injury.
This has been an interesting year in the California workers’ compensation community with some interesting Board decisions and legislative changes, as well as a pending Supreme Court opinion that could materially alter the workers’ compensation landscape in California.
Take Home COVID and Possible Employer Liability For Non-Employee Injury Or Death Is Still Up In The Air
The workers’ compensation community is still awaiting resolution of the take home COVID issues raised in the Court of Appeal decision in See’s Candies Inc. v. Los Angeles Superior Court et al.
This appellate court case appears to be a first in allowing a worker's lawsuit against an employer over a family member's COVID death. The Court of Appeal determined that the claim was not barred by the derivative injury doctrine. The state Supreme Court denied the Petition for Review without comment and the case was returned to the trial level where it is still proceeding to trial.
Shortly after the See’s decision was announced, plaintiffs used it to seek to revive a very similar lawsuit in a Federal Court that was applying California law, Kuciemba et al v. Victory Woodworks, Inc. That case was dismissed on the basis of the derivative injury doctrine. The Federal Court certified two questions to the state Supreme Court:
1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?
On 6/6/22, the Supreme Court granted the request to answer these questions of state law. The parties have briefed the issue and the last brief was filed 11/16/22. A decision is still pending. The Court’s responses to these questions could open the floodgates to numerous civil suits nationwide.
New Legislation Shortened the Decision Period For Presumptive Claims And Provides For Harsh New Penalties
On September 29, 2022, Governor Newsom signed Senate Bill 1127 into law. The rules become effective as of 1/01/2023. SB 1127 changes the California workers’ compensation landscape in three ways:
While all three of the above-mentioned provisions have an effective dated of 1/01/2023, the increased penalty provision of newly created LC 5414.3 applies retroactively, regardless of whether the injury occurs before, on, or after the effective date.
The reduced decision period provision affects fewer injuries and illnesses when compared to the increased penalty provision. However, both provisions apply to specified safety officer claims for hernias, heart trouble, pneumonia, cancer, PTSD, tuberculosis, MRSA, biochemical substances, meningitis, skin cancer, Lyme disease and to the low back under the duty belt presumption.
By contrast, the penalty provision covers the three COVID-19 presumptions – 3212.86, 3212.87 and 3212.88 – whereas the reduced decision period provision does not. Thus, the timelines for decision-making specified for COVID presumption claims under SB 1159 still apply: 30 days under LC 3212.86 (essential workers with dates of injury before 7/05/2020); and, for qualified employees with a date of injury after 7/05/2020, LC 3212.87 (certain peace officers, firefighters and specified health care workers) allows for 30 days, whereas a decision must be made within 45 days for COVID claims arising under LC 3212.88 during a period of outbreak (for employees not covered by 3212.87).
By: Nathan Geronimo (Associate Attorney - Santa Rosa)
In a recent case, Schaan v. Jerry Thompson and Sons, the Board reiterates the Wilson analysis for whether an injury is "catastrophic" includes an analysis of the nature and severity of the physical injury, without consideration of psychiatric sequelae. In order to establish a catastrophic injury and entitlement to PD for psyche as a compensable consequence, the Board will look at the following factors:
1) Intensity and seriousness of medical treatment required by injury;
2) the ultimate outcome of employee’s physical injury when employee is permanent and stationary;
3) impact of injury on activities of daily living (ADLs);
4) whether injury is analogous to one of injuries specified in Labor Code § 4660.1(c)(2)(B) (loss of limb, paralysis, severe burn, or severe head injury);
5) if the physical injury is incurable and progressive.
Here, the WCAB found that applicant's seven shoulder surgeries (including replacement on both sides) were not sufficiently “serious and life-threatening” medical treatment, his ADLs were not sufficiently impacted, and his injury was not analogous to those outlined in statute nor was it progressive or incurable. The psyche symptoms, which were found by the QME to be a compensable consequence of the physical injury, were not considered in the above.
Note: This case has not been designated a significant panel decision and cannot be cited.
Read more here: https://highlights.hannabrophy.com/post/102i2ht/psyche-sequelae-not-considered-in-analysis-of-whether-an-injury-is-catastrophic
According to People magazine, Q'orianka Kilcher has been charged with two felony counts of workers' compensation fraud.
Ms. Kilcher allegedingly injured her neck and right shoulder while filming Dora the Explorer and the Lost City of Gold, which was released in 2019. She saw the doctor a few times and then did not respond to the insurance company. In October 2019, she allegedly requested authorization to see a doctor and told that doctor that she had been unable to accept work due to the severe neck pain. Despite this statement, it was found that she had worked as an actress on Yellowstone from July 2019 to October 2019. She apparently started receiving disability benefits five days after last working.
There have been other instances of celebrities being accused of workers' compensation fraud. For example, Brad Culpepper, a former NFL player, was suspected of workers' compensation fraud when he appeared on Survivor after his workers' compensation claim for injuries sustained while playing football. He was sued by his insurance company.
This just goes to show that anyone can be suspected of workers' compensation fraud if the facts are there.
Read more here: https://highlights.hannabrophy.com/post/102hsre/even-actors-can-be-subject-to-workers-compensation-fraud
Independent Medical Review (IMR) is the process by which an injured worker may seek to overturn an adverse utilization review determination. Many among the Applicants’ bar in California will argue that only an employee may appeal the IMR determination. However, that is a misconception, likely driven by the rule that only an Applicant may seek IMR following a UR decision. Once an IMR determination is served, it is binding unless appealed timely on very limited grounds. LC 4610.6(h) outlines how to appeal an IMR determination and does not specify which party may file and it clearly does place any restrictions against any particular party seeking to appeal an IMR determination.
For the general practitioner, LC 4610.6(h) provides five grounds for appealing an IMR Determination within 30 days of service of an IMR determination. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence of one or more of the following grounds for appeal:
(1) The administrative director acted without or in excess of the administrative director’s powers.
(2) The determination of the administrative director was procured by fraud.
(3) The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.
(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.
(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.
In the case of Jordan Stone v AchieveKids, Caps-Sig (2014 Cal. Wrk. Comp. P.D. LEXIS 663), the Board not only decided it was permissible for Defendant to appeal the IMR determination, the Board even granted Defendant’s appeal of an IMR determination. Factually, the Stone case involved an initial IMR determination overturning utilization review’s denial a right knee cartilage transplant. Defendant appealed the IMR determination on the grounds that it was issued in excess of the Administrative Director’s powers described in LC 4610.6(h)(1) and that it contained plainly erroneous findings that were not subject to an expert’s opinion per LC 4610.6(h)(5).
Defendant's IMR appeal was originally denied by the trial judge and reversed on appeal. The Board found that there was a "patent discrepancy" in stating that the requested surgery was not medically necessary in one section, but then stating that it was medically necessary in another section. The issue was sent to an alternative/new IMR organization to conduct a neutral review. This is the appropriate remedy when an appeal of an IMR determination is granted (LC 4610.6(i)).
So, if you receive an IMR determination that overturns a UR decision look to the 5 grounds for appeal noted above. If you have questions about how this can apply to your workers' compensation cases, email me or find your local Hanna Brophy attorney at www.hannabrophy.com.
Read more here: https://highlights.hannabrophy.com/post/102hw9p/defendants-may-appeal-adverse-imr-determination
2
Two workers' compensation bills currently working their way through the California Legislature contain potentially conflicting language regarding the time period during which a claim administrator may investigate a claimed injury.
AB 1751, which is currently pending in the Senate Labor, Public Employment, and Retirement Committee, would postpone the expiration of the COVID presumptions originally created in 2020 to January 1, 2025. If this legislation is not passed, the COVID presumptions are scheduled to sunset at the end of 2022. The current version of the bill provides that "if liability for a claim of a COVID-19-related illness [brought by an active firefighter or other enumerated employee] is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable." (LC § 3212.87 (f))
The bill also addresses COVID claims brought by other employees who test positive during a COVID outbreak. LC § 3212.88 (f) provides that "if liability for a claim of a COVID-19-related illness is not rejected within 45 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable."
These two provisions potentially conflict with language contained in SB 1127 which is currently pending in the Insurance Committee. This bill would amend LC § 5402 (b)(2) to shorten the investigation period for firefighters and safety officers. The relevant language states "for injuries or illnesses defined in Sections 3212 to 3212.85, inclusive, and Sections 3212.87 to 3213.2, inclusive, if the liability is not rejected within 75 days after the date the claim form is filed pursuant to Section 5401, the injury shall be presumed compensable under this division."
The two pieces of legislation create different timeframes within which a claim must be accepted.
AB 1751 is scheduled for a hearing in the Senate Appropriations Committee on August 8. SB 1127 is scheduled for hearing in the Assembly Appropriations Committee on August 3.
The legislature is scheduled to adjourn on August 31.
Read more here: https://highlights.hannabrophy.com/post/102hu6w/pending-covid-presumption-extension-bill-ab-1751-conflicts-with-sb-1127
By: Jeannette Herrera (Partner - Sacramento)
On June 29, 2022, the Senate Committee on Labor, Public Employment and Retirement voted 4 to 1 to pass Assembly Bill 1751, which extends the COVID-19 presumptions through January 1, 2025 for specified first responders and when there is an outbreak. AB 1751 has now been re-referred to the Appropriations Committee. Senate Bill 1159 initially enacted these presumptions.
California Assembly Member Tom Daly (Anaheim) first introduced AB 1751 on February 1, 2022.
SB 1159, enacted in September of 2020, created within the Labor Code a rebuttable presumption for COVID-19 illnesses contracted before July 5, 2020 (§ 3212.86), for specified peace officers and firefighters (§ 3212.87), and during an outbreak (§ 3212.88). AB 1751 would amend the expiration date of these Labor Code sections from January 1, 2023 to January 1, 2025.
Proposed AB 1751 would do nothing more than extend the expiration date of these sections by two years. Specifically, there are no other amendments other than to replace "2023" with "2025" in these three sections.
Like SB 1159, AB 1751 would place the burden on California employers to prove that specified employees did not contract COVID-19 at work. These presumptions can be disputed by, among other things, evidence of employer measures in place to reduce the risk of COVID-19 transmission and by evidence of an employee’s non-occupational risk of COVID-19 infection. The bill will go back to appropriations and then to the Senate floor before a final vote.
Learn more here: https://highlights.hannabrophy.com/post/102hs6b/ab-1751-passes-in-committee-to-extend-covid-19-workers-compensation-presumptions
By: Edward Hummer (Associate Attorney - Santa Rosa)
On March 21, 2022, the California State Senate's Committee on Labor, Public Employment and Retirement voted 4 - 1 to advance SB 1127, authored by Sen. Toni Atkins (D - San Diego). If passed, this bill would amend Labor Code Section 5402 to shorten the time within which to investigate a claim from 90 days to 60 days. If a claim is not denied within 60 days, it would be presumed compensable. The amendment would further reduce the investigation time for claims involving safety officer presumptions (Labor Code Sections 3212 through 3213.2) to 30 days.
The bill would also amend Labor Code Section 4656 to provide first responders covered by the Labor Code Section 3212.1 cancer presumption with additional temporary disability benefits. The proposal would provide covered employees with up to 240 weeks of aggregate disability benefits for injuries occurring on or after 1/1/2023.
Particularly concerning to employers and claim administrators is a provision in the bill that would add Section 5414.3 to the Labor Code. This proposed section would impose a penalty for "unreasonably" denying first responder claims subject to the Labor Code Section 3212 through 3213.2 presumptions. The penalty would be five times the amount of the benefits "unreasonably delayed", with a $100,000.00 cap. The determination of whether a claim denial was "unreasonable" would be left to the WCAB.
A similar proposal introduced in the California Assembly in 2021 died in committee. The 2021 proposal was evaluated by the CWCI and the RAND Corporation. Both evaluations determined that shortened investigation times and faster claim decisions did not meaningfully assist workers and may actually lead to more provisional claim denials.
The legislation is opposed by a coalition of business interests including the Family Business Association. The opponents argue that the legislation does not provide sufficient time to investigate claims, creates new penalties that make taxpayer funded presumption claims dangerous to investigate, and increases costs because it more than doubles temporary disability benefits.
The next hearing on the proposed legislation went forward on April 4, 2022 in the Senate Appropriation Committee.
Learn more here: https://highlights.hannabrophy.com/post/102hlsf/committee-approves-proposal-to-shorten-investigation-time-for-workers-compensatio
By: Jeannette Herrera (Partner - Sacramento Office)
The California Supreme Court declined to review the appellate court decision holding that the derivative injury doctrine does not preclude a lawsuit alleging an employer business negligently exposed a worker to COVID-19 that is alleged to have resulted in a subsequent death of a family member. As such, Plaintiffs may proceed to litigate the issues in civil court.
Earlier, the Court of Appeals reasoned that the workers' compensation exclusive remedy provisions did not apply because the derivative injury doctrine does not apply to the subject claim. They discussed that the spouse may have had a claim regardless of the employee being injured.
This case represents a blow to employers seeking protection under the workers compensation exclusive remedy rule. However, the event Kuciemba decision in another district found the opposite. There's is no final decision on the merits of the underlying claim here yet, but we will be sure to keep you updated.
Learn more here: https://highlights.hannabrophy.com/post/102hn3n/ca-supreme-court-declines-to-hear-sees-candies-case
By: Kelly Hamilton (Office Managing Attorney - Redding)
We've all been there . . . you file a Petition for Reconsideration and advise your client that we will have an answer within 60 days. Then, on day 59, the WCAB issues a "grant and study" order, which essentially gives them an indefinite time period to issue a decision. You are then in limbo potentially for years.
There has now been a Petition filed with the 2nd DCA arguing that the practice is unconstitutional on its face. They further argue that it violates the "compensation bargain" of California workers' compensation because it denies a speedy delivery of benefits. It is noted that some of the "grant and study" orders were issued within 10 days of the filing of the Petition for Reconsideration.
The article states that there have been over 500 "grant and study" orders issued in the last three years. In part this is due to the reduced number of commissioners, having been short anywhere from one to three commissioners. Currently there are six commissioners and there must be three on a panel to issue a decision.
Read more on the Hanna Brophy website:
https://highlights.hannabrophy.com/post/102hkbe/2nd-dca-to-evaluate-constitutionality-of-grant-study-orders