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.
By: Brenna Hampton (Office Managing Partner - San Diego), Kelsey Paddock (Partner - San Francisco), Richard Berryhill (Attorney - San Francisco), Bill Davis (Attorney - Santa Rosa)
California has a long history of legislation and case law dealing with AOE/COE presumptions, the newest of which is the Governor’s Executive Order N-62-20 (the COVID-19 Presumption), which established a rebuttable presumption in favor of finding that COVID-19was contracted in the workplace. While this presumption is rebuttable, there is not yet any case law addressing how this presumption can be rebutted. Nevertheless, we know from experience that there are defenses to rebuttable presumptions, such as those based upon the latency period of the disease. Some of these defenses may have significant relevance to the defense of COVID-19 cases.
The Executive Order 5/06/2020: “The COVID-19 Presumption”
The COVID-19 Presumption extends a temporary, rebuttable presumption of AOE/COE for employees who worked on their employer’s premises at the direction of the employer between March 19, 2020 and July 5, 2020. The presumption shifts the burden to employers to show that it was more likely the employee sustained COVID-19 outside of work, otherwise the employer is liable for COVID-19 related indemnity and medical treatment.
As the medical community develops a better understanding of COVID-19, the workers’ compensation community will be sorting out how to apply existing legal principles, and perhaps creating a few new ones. Until there is specific case law addressing this new legislation, parties will need to argue by analogy to existing cases regarding other presumptions. There is good reason to believe that the legal principals in those cases will govern and be applied regarding whether the COVID-19 presumption has been rebutted.
Rebuttable Presumptions – The Blais Decision
There is a general notion that rebuttable presumptions (like some of those found in Labor Code section 3212) cannot ever be defeated. However, as with the COVID-19 Presumption, the defense community must be prepared to develop and litigate the appropriate evidence. While rebutting the presumption may not be easy, and may not always be successful, it is certainly worth the fight where the circumstances support a valid defense.
The Board issued a panel decision in one such case on May 13, 2020 in Robert Blais, Jr. v. State of California (PSI) (“Blais”)ADJ10840422, 2020 Cal. Wrk. Comp. P.D. LEXIS ____. In this decision, the Board found the defendant rebutted the seemingly insurmountable cancer presumption inLabor Code Section 3212.1 through the reporting and deposition testimony of the panel qualified medical evaluator (PQME). What can the defense community learn from this case to use in its defense of the COVID-19 cases? As it turns out, quite a bit.
Blais involves a safety officer cancer presumption in which the officer had a pre-existing cancer award with a prior employer, but the cancer manifested during the defendant’s employment and is subject to anti-attribution clause of Labor Code section 4663(e) if held to be presumptive. The case hinged on medical evidence from the PQME, who found on a medical basis that the cancer should not be attributed to the current employer.
The Blais decision noted that the defendant successfully rebutted the cancer presumption through PQME reports and testimony because this evidence demonstrated there was no reasonable link between the exposure to the claimed carcinogen and the cancer. One factor the Board relied upon in reaching its decision was the latency period between exposure and manifestation. As the Board explained, if the medical evidence shows that the latency period is long enough to preclude exposure at the employer’s workplace, then there is no reasonable link between the cancer and the industrial exposure. InBlais, the presumption was held to be rebutted on medical grounds, which may have interesting implications in our post-COVID-19 environment, particularly if the Legislature were to adopt (as it appears) a permanent rebuttable presumption. (Note: the current Executive Order extends through 7/05/2020).
The medical evidence was key in the Blais verdict for the defense in finding that the current employer was not responsible for the employee’s cancer, despite the presumption. TheBlais decision also held that rebuttal of the presumption does not require showing the absence of a possible link between the cancer and the industrial exposure, but thatdefendant should show that such a link was not reasonable. There is a crucial distinction between proving there is no reasonable link versus showing clearly that there is no link to exposure in the workplace at all. But what does it mean for there to be “no reasonable link” in these cases? As the Blais court explained in quotingGarcia: “A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link.” (Id., at p. 316, citingCity of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298.)
Thus, while courts will no doubt hold defendants to as strict a standard as possible,Blais and Garcia show that it may be possible to rebut a presumption by showing there is no reasonable link without necessarily having to prove that the exposure happened only outside of the workplace.
Analyzing COVID-19 cases in light of Blais and Garcia
In finding for Defendant in the Blais case, the Board looked to prior cases includingCity of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298. In theGarcia case, the Court of Appeal set up two alternative standards under which a cancer presumption can be rebutted:
As applied to COVID-19, either standard would require development of the medical evidence. In the first case, latency, the evidence must show when COVID-19 manifested and provide a reasonable chronological history to identify the latency period based on current scientific understandings of COVID-19. This would show that the injured worker’s exposure to COVID-19 could not have occurred while at work because exposure was either too soon or too late compared to when they worked. In the second case, lack of connection, a more traditional AOE/COE medical opinion is required to demonstrate that the COVID-19 exposure, diagnosis, and manifestation are not reasonably connected to work.
First – Does the COVID-19 Presumption Apply?
To argue for the applicability of other presumption cases, the wise practitioner must first discern whether the COVID-19 Presumption applies because this will determine whether the injured worker or defendant carries the burden of proof. Remember, the COVID-19 Presumption creates a temporary, rebuttable presumption of industrial injury for employees who claim to have contracted COVID-19 at work between 3/19/2020 and 7/5/2020. The presumption itself became effective 5/06/2020, but applies to dates of injury as early as 3/19/2020.
For the COVID-19 Presumption to apply, the employee must meet all four of the following factors:
If the defendant can demonstrate that any of the above four factors do not apply, then they might prove that the presumption does not apply and the employee retains the burden of proof to demonstrate industrial causation.
Second – Once It is Determined That Defendant Has the Burden of Proof,Identify Evidence to Rebut the Presumption.
Once it has been determined that all four factors have been met, the COVID-19 Presumption applies and the burden shifts to the defendant to rebut it. Defendant could look to presumption cases likeBlais and Garcia for a defense. Applying the defenses below will require a detailed factual inquiry and consultation with a workers’ compensation attorney is highly recommended before denying any such cases.
Employees may argue that COVID-19 does not have an established latency period, but the defense can argue by analogy that the incubation or “pre-symptomatic” period should be used, similar to those used to establish latency period in cancer claims. The “incubation period” is the time between exposure to the virus (becoming infected) and symptom onset.
Note: Medical evidence may support a shorter latency period of 5-11.5 days, but the executive order states 14 days so that will be the legal standard unless rebutted by competent medical evidence in a particular case. According to the World Health Organization (WHO), the incubation period for COVID-19, is on average 5-6 days, however can be up to 14 days.[1] According to the American College of Cardiology, the median incubation period from infection with COVID-19 to onset of symptoms is approximately 5 days and 97.5% of people infected with COVID-19 will exhibit symptoms by 11.5 days.[2]
Time of Exposure at Work Was Not Within the Latency Period (Too Soon or Too Late)
One way to defend a COVID-19 presumption would be to demonstrate that it is highly unlikely that the employee’s COVID-19 was industrially caused because the period between the claimed exposure and the manifestation of the COVID-19 (symptoms or positive test or diagnosis) is not within the known “latency period.” This defense requires the defendant to (A) obtain medical evidence of the COVID-19 latency period and then (B) show that the period during which the employee worked was not within a reasonable latency period.
The employee’s symptoms manifested too soon before any work exposure: “Too early.”
An employer could alternatively seek evidence that the employee was displaying COVID-19 symptoms or was exposed to / lived with a COVID-19 positive individual 5 – 11.5 days (even up to 14 days) before their alleged workplace exposure. The argument would be that they were still in the incubation or pre-symptomatic period when they were allegedly exposed at work, while the testing merely happened after being at work. Again, the defendant’s position would be that there was no workplace “injury” because the exposure occurred somewhere other than at work. Medical and factual evidence supporting this defense needs to be developed through timely investigation and diligent pursuit of a medical opinion based on that investigation.
Even if the employee was back to work for up to 5 days before demonstrating symptoms, a medical opinion should be developed to show that COVID-19 takes at least 5 days to manifest, meaning the symptoms are the result of exposure before the employee started working. The argument would be that the period between the exposure and the manifestation of COVID-19 is not within COVID-19’s incubation or “pre-symptomatic” period. Given this, the onset of symptoms (aka manifestation) was too soon following any potential work-related exposure. In short, the injury (the exposure) occurred prior to coming to work. A medical opinion confirming the period between the exposure and the manifestation would likely be required. It would also be helpful to establish that the employee was not exposed to any known COVID-19 cases while working and that no other employee was positive at that time.
Let’s apply this defense to a hypothetical case. Employee Isabel had her first symptoms of COVID-19 on May 10, 2020. The employer records show she worked from May 8, 2020 through May 10, 2020. She was sent home immediately when the symptoms started, having worked a total of three days on May 8th, May 9th, and May 10th. If the defendant proves her symptoms manifested on May 10th, and obtains medical evidence that the reasonable latency / incubation is at least 5 days, the defendant may be able to rebut the presumption because Isabel’s work from May 8-10 was too close in time to her symptoms starting.
In sum, if medical evidence showed that Isabel had not worked after April 26th (i.e.: during the fourteen day period before symptoms started) and that the latency period is at most 14 days, then the defendant could argue that the presumption should not apply because, from a medical perspective, she must have been exposed before working for this employer.
The employee’s symptoms manifested too long after any work exposure, i.e.: “Too late.”
An employer could seek to rebut the COVID-19 Presumption by developing factual evidence that the employee did not become symptomatic or receive a positive test / diagnosis within 14 days after last performing labor or services for the employer and thus the exposure is outside the normal incubation or asymptomatic period.
Let’s apply this defense to our hypothetical case: employee Isabel had her first symptoms of COVID-19 on May 10, 2020. However, this time factual investigation at the employer level demonstrates Isabel had not worked for this employer for some time, as her employment there ended April 15th, far more than 14 days before her symptoms arose. On these facts, it is more likely the defendant will be able to obtain a medical opinion that her COVID-19 was not related to her work that ended April 15th because the symptoms arose too late in relation to any alleged work exposure and are thus outside of the latency period.
Notably, if the defense tries to argue lack of industrial exposure when the employee last worked less than 14 days after the development of symptoms, this argument might be a tougher sell given that the COVID-19 Presumption allows for positive testing / diagnosis within 14 days and the WHO currently allows for up to 14 days. However, the law is still catching up to the science in this unprecedented pandemic. Further scientific refinement of the incubation period may allow employers to make this argument, so close calls should be carefully documented and considered.
Lack of Connection to the Workplace
An alternative defense is to prove exposure occurred outside of the workplace. As noted by the court inBlais and Garcia “A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link.” This might allow the COVID-19 presumption to be rebutted without clearly establishing causation elsewhere.
The argument in any of the latency scenarios above is that the workplace was not the source of the exposure, but the affirmative defenses asserted in Labor Code sections 3600(a)(2) [injury did not arise out of nor in the course of work] and 3600(a)(3) [injury not proximately caused by work] are implicated, should be plead in an Answer, and remain the defendant’s burden to prove.
If the presumption is applicable, it is not sufficient to merely assert that the employer does not believe it to be work-related. The substantial evidence standard applies to evidence submitted by either party.
Strategic discovery should be undertaken to prove there is no reasonable link to work-related activities. An employer who could develop the evidence to show a link of COVID-19 to the workplace is not reasonable would have an even stronger case if they could additionally demonstrate a more likely link between COVID-19 in a particular employee and a non-work-related source. PerGarcia, the nature of this manifestation may also “be sufficient to show the lack of a connection” to a workplace exposure. This is particularly true if there are no other known cases at the workplace and evidence could point towards outside exposure. Thus, the inquiry is both factual and medical in nature.
Conclusion
While it is relatively easy for an applicant to claim the benefits of the presumption in Executive Order N-62-20, there are several key factors that we can take away from theBlais panel decision and its predecessor, Garcia. Do not think rebutting the COVID-19 presumption is an insurmountable task. Defendants can and do rebut AOE\COE presumptions, as the panel decision inBlais illustrates. There is no reason that COVID-19 presumption cannot be rebutted as well. Analogizing to standards established in earlier presumption cases is a good place to start. The next step is working strategically to develop factual and medical evidence to support the development of appropriate case law to serve as precedent in COVID-19 presumption cases for the workers’ compensation community moving forward.
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[1]WHO Coronavirus disease 2019 (COVID-19), Situation Report – 73, April 2, 2020
https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4#:~:text=The%20incubation%20period%20for%20COVID,occur%20before%20symptom%20onset.
[2]American College of Cardiology, Estimated Incubation Period of COVID 19, 5/11/2020
https://www.acc.org/latest-in-cardiology/journal-scans/2020/05/11/15/18/the-incubation-period-of-coronavirus-disease
By: Curtis Wheaton (Associate Attorney - Oakland Office)
Furious advocacy from both supporters and opponents of AB5 throughout its legislative pendency underscored the significant stakes of the legislation. However, it is important to remember that the bill codified a new legal test. It did not define specific results. Those classified as independent contractors did not receive an embossed state certificate entitling them to the rights and benefits of employees. Instead, they received the intangible legal right to hold their employers to the “ABC test” and the considerably more challenging standard it prescribes.[1]
To that end, AB5 was also endowed with an expanded scope of agencies authorized to enforce its provisions, vesting the Attorney General and city attorneys statewide with the authority to bring actions for injunctive relief to correct alleged misclassification. The California Labor Commissioner (authorized to enforce all provisions of the Labor Code) and workers themselves (those claiming harm by alleged misclassification) also remain entitled to bring actions of their own.
Seven months following AB5’s implementation, its expanded enforcement mechanism is already apparent. On May 5, Attorney General Becerra (joined by the city attorneys of Los Angeles, San Francisco and San Diego) filed a complaint seeking injunctive relief, damages and penalties for misclassification against Lyft and Uber.[2] On July 16, San Francisco District Attorney Boudin filed a complaint on the same basis against DoorDash.[3] Most recently, the California Labor Commissioner targeted “Mobile Wash Inc.,” a gig-based car washing company, with a complaint for allegedly making a “business decision” to misclassify car washers as independent contractors.[4]
Another indicator of the priority being given to enforcement of AB5 is the 2020-21 State budget. Despite being created subject to unprecedented fiscal challenges resultant from the COVID-19 pandemic, over 20 million dollars is allocated specifically for the enforcement of AB5 by the Department of Justice and State agencies. [5] California voters will also play a pivotal role. The consortium of Uber, Lyft, DoorDash, Instacart and Postmates (recently acquired by Uber) raised the requisite signatures for the “Protect App-Based Drivers and Services Act” to appear on the November 2020 ballot as “Proposition 22,” a measure would exempt ride-share and delivery companies from AB5 entirely.[6]
Overall, the takeaway from this surge in prosecution is that various state agencies are watching. Whether there will be enough results from the initially sacrificed lambs to prevent slaughter of the entire herd is yet to be seen. Business operators and owners who could be deemed “employers” should carefully review their procedures and consult with appropriate employment counsel as to proper classification. If those workers are deemed employees, they are eligible for workers’ compensation benefits as well. Coverage is required in the state of California for workers’ compensation for any business with even just a single employee. Failure to appropriately misclassify an entire rank of workers could lead to significant exposure for an otherwise uninsured employer.
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[1] To satisfy the ABC test, a hiring entity must demonstrate that: (1) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (2) the worker performs work that is outside the usual course of the hiring entity’s business;and (3) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
[2] https://oag.ca.gov/system/files/attachments/press-docs/2020-05-05%20-%20Filed%20Complaint.pdf
[3] https://sfdistrictattorney.org/sites/default/files/Document/DoorDash%20complaint.pdf
[4] https://www.dir.ca.gov/DIRNews/2020/2020-61.html
[5] http://www.ebudget.ca.gov/budget/2020-21EN/#/BudgetSummary
[6] https://www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures/
By: Lawrence Hamby (Associate Attorney -Orange Office)
A few years ago, there was a popular book entitled “The 48 Laws of Power” which offered guidance on how to handle difficult situations. One of those laws was to keep your hands clean, which during the current pandemic is sage advice literally and for California employers figuratively as well given the updated statewide industry guidance and reporting guidelines provided from Cal/OSHA related to COVID-19. (See link:https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html)
On May 27, 2020, Cal/OSHA provided guidance on updated reporting guidelines that will affect employers big and small in the Golden State. Fortunately, there are not 48 new guidelines to take into account for Cal/OSHA reporting which is now broader than federal OSHA is some respects, but there is enough to keep employers busy as the reopening in California takes effect off with millions more workers expected back on the job soon.
The Difficult Made Easy. With an airborne disease such as COVID-19 it is almost impossible to determine how someone contracted it. Nevertheless, Cal/OSHA by providing reporting and recording guidelines for COVID-19, has made it easier to determine whether to report a potential case or not since it has taken much of the discretion away from the employer.
For instance, California employers going forward will need to record on their Log 300 all COVID-19 illnesses if there is a work-related confirmed case or positive test for COVID-19 of an employee involving any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or significant injury or illness diagnosed by physician or other licensed healthcare professional.
But, this is where federal OSHA guidance and Cal/OSHA diverge since federal OSHA generally requires a COVID-19 case to be confirmed through testing, whereas Cal/OSHA statesthat even if testing is not available it is recommended to err on the side of recording if one of the six general recording criteria listed above are present, which is broader than Fed/OSHA. So far two million have been tested in California and that number is increasing by an average of 60,000 tests per day.
Previously, for record keeping purposes the employer did not have the burden put on it to determine if a COVID-19 case was industrially related. Now, Cal/OSHA has fine-tuned the decision making process and requires thatvarious factors be considered for the determination. Such as, if there was a known exposure to persons infected with the virus that causes COVID-19 in the workplace or even working in the same area, this could lead to the illness being determined to be work-related. Likewise, if there is a sharing of computers, equipment, or work vehicles which may have exposed a worker to the virus. There will be a presumption by Cal/OSHA of work-related exposure unless an exception in 8 CCR section 14300.5(b)(2) specifically applies.
The more difficult are those in which there was not a known exposure that could trigger determination of work-relatedness such as the amount of contact a worker has with the general public, how stringent the safeguards were at the workplace in wearing masks and enforcing physical distancing and if the worker had contact with someone who exhibited the symptoms of COVID-19, which could include delivery persons or vendors.
The zone of safety is to record and report the above cases, keeping your hand clean with Cal/OSHA.
Not recordable for Cal/OSHA purposes are days away from work solely spent in quarantine with no work-related illness.
Timing Is Everything. Going forward employers must also report to Cal/OSHA immediately any cases of COVID-19 that are work-related and meet the definition of a serious illness that requires inpatient hospitalization for other than medical observation or diagnostic testing. This does not have to be an overnight or 24 hour stay. The report to the nearest Cal/OSHA office must be made within eight hours after the employer knows or should have known of the serious illness or death. Again this goes beyond the current federal OSHA guidelines which allows for reporting within 24 hours.
What if you are a general or special employer or a PEO? The zone of safety may require all involved employers to report any work-related Covid-19 illness to Cal/OSHA.
Don’t Play Doctor. An employee may become sick while at work and display symptoms of COVID-19. What is an employer to do in this situation? According to the Cal/OSHA guidelines for reporting purposes it does not matter if the illness is work-related, it triggers the reporting requirement by the employer so that Cal/OSHA can make the preliminary determination of work relatedness.
The factors that Cal/OSHA will use to make a preliminary work-relatedness determination are whether there are multiple cases in the workplace, the type, extent and duration of contact with others especially the general public, physical distancing and other controls as well as contact with anyone who exhibited symptoms of COVID-19.
This is applicable even if COVID-19 case has not been diagnosed by a licensed health professional as required under the federal OSHA guidelines.
Sometimes there is a reluctance to report a serious illness/injury as work-related because it is assumed that this is an admission of liability. This is not the case and there is no admission of responsibility, it is merely compliance with a mandatory reporting requirement.
One final point is Gov. Newsom’s Executive Order in May regarding the rebuttable presumption for workers compensation benefits and COVID-19. The Order does not alter or affect in any way a California employers reporting and recording obligations under Cal/OSHA regulations.
Good health to you and keep your hands clean!
By: William Davis (Associate Attorney -Santa Rosa)
Everyone has been focused on Governor Newsom’s May 6, 2020 Executive Order creating a temporary rebuttable presumption for AOE/COE and temporary disability benefits in COVID-19 cases. Rightfully so. But while all eyes were on the COVID-19 presumption many may have missed another Executive Order that came out the very next day.
On May 7, 2020, Governor Newsom issued Executive Order N-63-20. Its impact is temporary and will last as long as the California-declared state of emergency, or until lifted by the Governor. The majority of this EO deals with extending some deadlines that have been impacted by the COVID-19 pandemic and other public health concerns. However, buried in the May 8, 2020 EO in paragraph 11 is an order that will impact hearings and trials at the WCAB, particularly where witnesses are required. This EO suspends the rules requiring a witness to be physically present at a hearing if ALL of the following are satisfied:
This is going to have a dramatic impact on the way in which trials at the WCAB are conducted, if they are conducted at all. While the EO allows for hearings to be conducted “by telephone, television, or other electronic means”, it requires that each participant be able to hear and observe exhibits.
How will this play out in practice? The short answer is that most trials will be continued and parties are well advised to try to resolve cases informally where it makes sense.
The WCAB is already conducting hearings other than trials by conference call. It makes sense that this system will be used for trials as it is already in place and does not require any new equipment, software, IT support, or training. This means that the Judge and the respective counsel will be left to assess witness credibility solely by voice, which is a very poor substitute to direct observation of a witness in a court room. Ordinarily, a good attorney or judge will watch closely for visual cues such as whether the witness maintains eye contact, whether they are referring to notes, or even whether someone is whispering an answer in their ear. The trial Judge will be unable to gauge pain behavior, or lack thereof, or even see if they are using any durable medical equipment like a cane, brace, or sling. How are the Judge and other parties to even ensure that the witness is who they say they are? Without video, fraud is definitely a concern. And, as every litigator will tell you, there is a certain gravitas when a witness actually takes the witness stand and possibly has to face either the employer or the Applicant when telling their story. That will be lost. Also lost will be the ability to ensure that witnesses who have not yet testified are excluded while another is testifying. Over the phone, who knows who else is listening in?
Of course, there was a recent case where an out of the county witness was allowed to testify by FaceTime on an iPhone. But, in that case, all the other case participants were in the courtroom. This would be far more difficult to do with the respective attorneys, the Judge, and the court reporter all scattered to different locations.
And, what of the requirement that a participant be able to observe the exhibits? This would include a potentially expansive list of people: the direct parties, witnesses, the Judge, and possibly even the court reporter and interpreter, if applicable. We have already seen at least one judge require that that witnesses must be able to see and review all exhibits prior to giving testimony and that if they do not have the ability to do that, the trial will be continued.
The requirement that members of the public be allowed to observe makes sense for civil and criminal trials. But, it is indeed the rare workers’ compensation trial that has an audience of the general public or press. This section should not pose much of a problem at the WCAB.
More interesting is the requirement that the Americans with Disabilities Act and Unruh Civil Rights Act be satisfied. How is the presiding judge to ensure this in all cases? Suppose a participant is hearing impaired. Does the use of a telephonic captioning device satisfy the requirement that they be able to hear the proceeding? How can the parties effectively utilize a sign language interpreter over the phone? Or, if the participant is visually impaired, how does the presiding judge ensure that they can observe exhibits? If the WCAB cannot accommodate those with hearing or vision impairments, or possibly other impairments, are they being deprived of due process on the basis of a disability?
While some trials will need to go forward out of necessity, we can expect to see the majority of trials being continued into the indefinite future. That, or the WCAB could utilize a video-conferencing platform with appropriate security measures in place. Of course, that means that we’d all have to hope that our going-to-court wardrobe still fits after these months of shelter in place.
A copy of this EO can be found here: https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-on-extending-deadlines-impacted-by-covid-19/
By: Bill Davis (Associate Attorney - Santa Rosa)
On May 27, 2020, the Sixth Appellate District issued its long-awaited decision in County of Santa Clara v. WCAB (“Justice”). This decision dramatically curtails the application of the Hikida case, which is regularly cited by the Applicant’s bar to severely limit or even eliminate apportionment.
It is important to notes that the Justice Court did not disagree with the Hikida decision. Instead, it held that the Hikida decision was being applied in an overbroad and inappropriate manner.
The Justice Court agreed that Defendant was responsible for a new injury that was the consequence of medical treatment. It further agreed that “[A]n employee is entitled to compensation for a new or aggravated injury which results from the medical or surgical treatment of an industrial injury.” The Court noted that, while these statements are correct, they are not the end of the discussion. “However, it does not follow that an employer is responsible for the consequences of medical treatment without apportionment, when that consequence is permanent disability”. This is key for the defense community because applicant attorneys have been using Hikida to argue that there is no apportionment when permanent disability results from medical treatment.
The Justice Court relies upon Labor Code sections 4663 and 4664 and the numerous cases which applied these sections, particularly the Lindh decision (City of Petaluma v. WCAB (Lindh)). The Justice Court notes, “There is no case or statute that stands for the principle that permanent disability that follows medical treatment is not subject to the requirement of determining causation and thus apportionment, and in fact such a principle is flatly contradicted by sections 4663 and 4664”. In other words, the Justice Court seems to indicate that where there is permanent disability from any industrial source, Defendant should have the ability to assert apportionment.
The Court specifically held that that the Hikida decision finding no apportionment “makes sense only because the medical treatment in Hikida resulted in a new compensable injury, namely CRPS, which was entirely the result of the industrial medical treatment”. The emphasis is in the original opinion. The Justice Court was clearly stating that apportionment is required unless the medical treatment resulted in a new condition which was entirely the result of that treatment. Otherwise, per Lindh, “the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required”. Citing 4333(a), Lindh, and Acme Steel, the Court held “Where there is unrebutted substantial medical evidence that non-industrial factors played a causal role in producing the permanent disability, the Labor Code demands that the permanent disability “shall” be apportioned”. Defendants still must meet their burden of proof to substantiate apportionment. If medical treatment has caused a “new injury” the evidentiary efforts to prove up apportionment start anew with regard to that new injury. Additionally, per Benson, distinct disabilities must each be taken on their own and cannot be merged.
There is another aspect of this decision that will be of great benefit to the defense community. The treatment in the Justice case was bilateral knee replacements. There has been substantial litigation since SB 899 on the issue of whether a defendant can obtain apportionment where a joint, and thus the underlying degenerative condition, has been replaced. Most of the more recent cases found that it is permissible, but these have been lower level or writ denied cases. We now have a published Court of Appeal case in which apportionment was allowed where there has been a joint replacement. Still, nothing can be taken for granted and defendants must ensure they have substantial evidence to support apportionment in each particular case.
This case is a blow to the overbroad application of Hikida that we have seen since the decision issued. Now, a defendant has the ability to apportion liability of permanent disability partly caused by medical treatment. Hikida is now limited to those rare situations where medical treatment results in an entirely new condition, and that condition is not subject to apportionment for non-industrial factors. As an added bonus, defendants have a much stronger argument for apportionment in a joint replacement case. In all, this is a great decision that further strengthens the concept that an employer is only liable for the permanent disability caused by their injury.
If you have questions about how this decision specifically impacts your case, contact the author, Bill Davis at wdavis@hannabrophy.com.
By: Patty Robbins (Associate Attorney - Redding)
On March 18, 2020, H.R. 6201, the “Families First Coronavirus Response Act,” was signed into law. This emergency measure provides benefits for the many Americans that have been (or soon will be) affected by COVID-19. The Act primarily address the following concerns: access to food, paid leave, and costs of testing and treatment.
This article will address the changes that are most likely to affect employers – the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. As will become clear, these changes place a financial burden on businesses employing fewer than 500 people. The Acts do not apply to larger employers. Division G attempts to address this financial burden by allowing a tax credit equal to 100% of the qualified sick leave wages paid. Consultation with labor counsel and tax advisors is recommended.
Emergency Family and Medical Leave Expansion Act
The Family and Medical Leave Act of 1993 (“FMLA”) entitles employees to 12 workweeks of leave during any 12 month period:
To be eligible, the employer must have “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” (Section 101(4)(A)(i)). Also, the employee must have at least 12 months of employment and 1,250 hours of service within the preceding 12 months of employment. (Section 101(2)). An eligible employee that contracts COVID-19 such that he or she has to be hospitalized would likely be eligible for FMLA under the original statute.
The Emergency Family and Medical Leave Expansion Act (“the Expansion Act”), focuses on the impact to families of the preventative measures taken to address the COVID-19 pandemic including school closures and shelter in place orders.
The Expansion Act temporarily adds to the reasons for leave “a qualifying need related to a public health emergency.” The statute is careful to limit the scope of the term “emergency” to those declared by a Federal, State, or local authority relating to COVID-19. California Governor Gavin Newsom declared a state of emergency relating to COVID-19 on March 4, 2020 and the President of the United States declared the same on a national level on March 13, 2020. Therefore, the “qualifying need” must arise from the effects of the current COVID-19 pandemic addressed in those declarations.
What is a “qualifying need?” Under Section 102(a)(1)(F)(A) a “qualifying need” means, “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child provider of such son or daughter is unavailable, due to a public health emergency.” Therefore, any schooling or child care that is disrupted as a result of the declared states of emergency may make an employee eligible for FMLA. If the need for leave is foreseeable, the Expansion Act requires the employee to provide the employer with notice “as is practicable.” (Section 110(c)).
Leave on a public health emergency basis is different than the other types of leave in two notable ways. First, an employee becomes eligible for leave on public health emergency grounds after just 30 calendar days of employment. (Certain health care providers and emergency responders may be ineligible at the election of their employer pursuant to section 2105. They could also be deemed ineligible in the future by the Secretary of Labor under section 110(a)(3)). Second, the Expansion Act applies to all employers with “…fewer than 500 employees.” It does not apply to large businesses. Considering that small businesses are less likely to have remote work options and the Expansion Act places a large financial burden on the employers, it includes a gateway to exempt small businesses with fewer than 50 employees if it “would jeopardize the viability of the business as a going concern.” (Section 110(a)(3)).
What benefits are due? Under the Expansion Act, the first ten (10) days of leave for a public health emergency may be unpaid and during that time the employee may use accrued time. After that, the employer “shall provide” paid leave of not less than two thirds of an employee’s regular rate of pay based on the number of hours he or she would normally work, “not to exceed $200 per day and $10,000 in the aggregate.” (Section 110(b)). Consult your labor counsel with any questions regarding calculating amounts due as they may vary based on specific facts. In the case of multi-employer collective bargaining agreements, the payments may be made to a multi-employer fund that provides paid leave to employees.
Although the Expansion Act increases the burden on small businesses in some ways, it loosens it in others. First, it exempts businesses that do not have “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year” from the enforcement provisions of the FMLA. (Section 110(a)(1)(B)). Those provisions make an employer civilly liable if it interferes with an employee’s ability to obtain FMLA benefits. (Section 107). Second, it exempts businesses with fewer than 25 employees from the requirement that an employee’s position be restored upon return from FMLA leave in these scenarios: a) when leave is taken under the “public health emergency” provision, b) when the position no longer exists due to economic conditions or other changes in operating conditions, c) when the employer makes reasonable efforts to restore the employee to a similar job, and d) when the employee contacts the employee to offer an equivalent position. (Sections 104(a), 110(d)).
Notably, leave under the Exemption Act is limited and will be allowed only through December 31, 2020. Hopefully, school closures and other shelter in places orders will be lifted long before that. If not, we may see an amendment to that deadline.
To summarize, the Emergency Family and Medical Leave Expansion Act generally allows any employee working for an organization with fewer than 500 employees, that has been employed for at least 30 calendar days, to request FMLA in order to care for a minor child who’s school or daycare has become unavailable due to the current COVID-19 pandemic. When eligible, an employer must pay at least two-thirds of that employee’s regular pay (excluding the first ten days) not to exceed $200 per day or $10,000 total.
Emergency Paid Sick Leave Act
Until December 31, 2020, this new legislation mandates private employers with fewer than 500 employees and non-private employers with more than 1 employee, to provide non-carry over paid sick time (80 hours for full-time employees and for part-time employees what they would have worked over two weeks) for any employee that cannot work due to one of the following reasons:
The benefits are paid at the employee’s regular rate of pay or the minimum wage, whichever is higher. (Section 5110(5)(B)(i)). Benefits are limited to $511 per day or $5,110 in the aggregate if leave is taken for items 1, 2, or 3. They are limited to $200 per day or $2,000 in the aggregate if leave is taken for items 4, 5, or 6. (Section 5110(5)). Also, if leave is taken under items 4, 5, or 6, compensation is paid at two-thirds of the applicable pay rate. (Section 5110(5)(B)(ii)). The Secretary of Labor may exempt small businesses with fewer than 50 employees if it would “jeopardize the viability of the business…” (Section 5111).
An employer or the Secretary of Labor may elect to exclude health care provides or emergency responders. (Sections 5102, 5111). Also, employers participating in multi-employer collective bargaining agreements may fulfill the requirements by contributing to a multi-employer fund that provides the employee with sick time. (Section 5106).
However, an employer may not require an employee to find a replacement employee to cover his or her shift. An employer also may not require an employee to first utilize accrued time. (Section 5102). An employer also may not “discharge, discipline, or in any other manner discriminate against” an employee that takes leave under the Act or institutes proceedings under the Act. (Section 5104). Employers are mandated to keep a posted of these benefits, which will be available in the near future. (Section 5103).
An employer that fails to pay sick leave or terminates an employee for use of this Act will be considered to be in violation of the Fair Labor Standards Act of 1938 subject to penalties. (Section 5105).
The Emergency Paid Sick Leave Act is very similar to the Expansion Act described above, but far broader. Pursuant to section 5107, it does appear that an employee can seek benefits under both Acts.
Keep an eye on our website for additional analysis and webinars, including the state of Temporary Disability Indemnity issues following COVID-19.
By: Brenna Hampton (Office Managing Partner - San Diego)
Governor Newsom just announced an Executive Order creating a temporary, rebuttable presumption of industrial injury for employees at work who contracted COVID-19 between 3/19/2020 – 7/04/2020. Here are the highlights:
– Rebuttable presumption with 4 requirements (all 4 must be satisfied):
– The presumption of compensability applies for 60 days from 5/06/2020.
– REDUCED period to deny (30 days instead of 90) – 30 days from filing of the claim form, unless rebutted by evidence discovered after the 30-day period.
– LC4850 / Temporary Disability:
– If death results, no benefits payable to the state (Death without Dependents Unit)
– Apportionment to permanent disability allowed under LC4663 and LC4664.
– Standard workers’ compensation benefits – no specific reimbursement for PPE, lodging or other expenses, like those contemplated by the proposed AB664. The Executive Order makes employers liable for full hospital, surgical, medical treatment, disability indemnity, and death benefits in the event of industrial COVID-19.
Pending Presumptions – AB664, SB 1159, SB 893 (hospital workers), AB 196 (“essential” workers)
There are now four proposed California state bills addressing issues related to COVID-19. The legislature reconvened this week so we anticipate something soon. Until then, discovery should proceed as usual and employers and their agents should strive to remain in compliance with the 5/06/20 Executive Order. It can be anticipated that the California legislature as well as the industry at large will assess the response and results from today’s executive order for further guidance.
The four proposed bills discussed below attempt to close gaps, add protection for certain workers, and generally expedite the provision of benefits to injured California employees. In a rebuttable presumption, the effect is to shift the burden of proof away from the employee such that the employer must disprove that the alleged injury is industrial. With a conclusive presumption, the employer loses the right to do this at all and, once exposure is shown, the employer must provide all related benefits.
Bill #1: Assembly Bill 196 – Presumption for broader group of essential workers, conclusive
This bill was introduced in January, but amended yesterday, 5/05/20 and would create a conclusive presumption of industrial injury for “essential employees” with COVID-19 occurring on/after 3/01/2020 and extending for a period of up to 90 days following the last day of actual work.
The Bill would define essential employees as those defined in Governor Newsom’s Executive Order N-33-20, which alludes to 16 critical infrastructures, or those who are “subsequently deemed essential”. https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19. Certain employees would be excluded – active firefighters, peace officers, and health care employees who provided direct patient care, likely because they are already covered by existing or proposed presumptions for COVID-19.
Here is the link to the proposed text:
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB196
Bill #2: Senate Bill 893 – Presumption for hospital employees, rebuttable
This bill was proposed 1/28/2020 and would define “injury” for a hospital employee who provides direct patient care in an acute care hospital to include infectious diseases, musculoskeletal injuries, and respiratory diseases when those conditions arise or manifest during employment. Here is the link to the proposed text:
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB893
Respiratory disease is clearly defined in the proposed bill to include COPD, asthma, COVID-19, and other respiratory diseases caused by novel pathogens. Musculoskeletal injuries are broadly defined to include acute injury or cumulative trauma of the muscles, tendons, ligaments, bursas, peripheral nerves, joints, bones, or blood vessels.” The proposed bill would create a rebuttable presumption that these types of injuries are industrial. This is extremely broad language that would open the door for hospital workers providing acute care to receive extensive benefits for a variety of everyday injuries.
The presumption would also be extended for a period of three calendar months for each full year of employment, up to 60 months from the last date actually worked. MRSA infections would extend to a hospital employee following termination of employment for 90 days from the last date of actual work. Respiratory conditions would be extended for up to 120 months from the last date of work.
One area of concern is the proposed language that if one of these conditions develop in a hospital worker who provides direct patient care in an acute care hospital would not be “attributed to a disease that existed before development or manifestation.” It sounds as though the intent is to prevent apportionment of permanent disability, though unlike the proposal in AB 664, there is no clear intent to amend LC4663 stated in the proposed SB893.
Bill #3: Senate Bill 1159: Rebuttable presumption, with broader application to “critical employees” of essential employers
This preliminary proposal for SB 1159 is more balanced than AB 664 that has also been proposed. AB 664 wanted to remove apportionment and would create a conclusive presumption that COVID-19 is work-related. SB 1159 would create a “disputable” (rebuttable) presumption, would not alter the laws regarding apportionment, but it would potentially impact a much broader array of employees, which are not fully defined.
SB 1159 (not yet law) would create a rebuttable presumption of work-related COVID-19 for “critical employees.” This seems to be defined loosely and will be subject to interpretation (see below): (2) “Critical worker” means a public sector or private sector employee who is employed to combat the spread of COVID-19. It is the intent of the Legislature that this group of workers be explicitly identified in order to ensure that they receive all necessary health care through the workers’ compensation system.
This bill appears to be aimed at first responders, not just employees of essential businesses. This is likely to be a hot button topic during discussion once the Legislature reconvenes. With the new Executive Order, the Governor has indicated the intent to cover a broad swath of the workforce, but, again, the definition remains subject to various perspectives and legislative approval.
Here is a link to the proposed bill:
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159
(proposed Labor Code Section 3212.86)
(a) This section applies to critical workers who directly interact or previously directly interacted with the public during the COVID-19 pandemic.
(b) The term “injury,” as used in this division, includes illness or death resulting from exposure to COVID-19 if all of the following circumstances apply:
(1) The injury develops or occurs during a period in which a critical worker is in the service of an essential critical infrastructure employer.
(2) The injury is confirmed by a positive laboratory test or, if a laboratory test was not available, as diagnosed and documented by the critical worker’s physician based on the employee’s symptoms.
(3) The injury results in hospitalization or significant lost time beyond the critical worker’s work shift at the time of injury of at least ____ days due to the illness.
(c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(d) An injury that develops or manifests itself while a critical worker is employed is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.
(e) For purposes of this section, the following definitions apply:
(1) “COVID-19” means coronavirus disease 2019.
(2) “Critical worker” means a public sector or private sector employee who is employed to combat the spread of COVID-19. It is the intent of the Legislature that this group of workers be explicitly identified in order to ensure that they receive all necessary health care through the workers’ compensation system.
(f) This section shall remain in effect only until January 1, ____, and as of that date is repealed.
Bill #4 (Assembly Bill 664) – the conclusive presumption, more liberal benefits contemplated
AB 664 (Cooper and Gonzalez) proposes to amend the California apportionment statute (LC 4663) as well as add COVID-19 to the definition of communicable diseases, a presumption for certain safety officers. This would also add “certain” hospital employees. As of right now, it does not specifically reference any other types of employees, which is surprising, but it appears to be a deliberate effort to streamline objections to the proposed bill and maintain consistency with existing LC3212 presumptions.
Specifically:
– AB 664, if passed, would add Corona Virus cases to the existing presumption for “communicable diseases” as an injury.
– Importantly, as proposed, AB 664 would also change the presumption to a conclusive presumption. Current law holds that the presumption is rebuttable by evidence. Making it a conclusive presumption means that a positive test = industrial injury for those employees, regardless of evidence of other exposure or pre-existing injury.
– The bill would also amend the apportionment statute to prevent employers from reducing permanent disability related to Coronavirus. Let’s say, for example, that an employee subject to this bill (again, if passed) had a history of lung transplant (or even severe pneumonia with lung damage), if the employee contracted coronavirus, any lasting damage to the lungs after coronavirus would be the employer’s burden.
Here is the text, as amended in Committee:
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB664
Before it becomes law, it will go back to the floor for discussion and approval of the amended bill, there will hopefully be further amendments (ie: to make the presumption rebuttable) and then the Governor would need to review and approve it.
I see this as having two intents: 1) protect safety officers and hospital employees by ensuring a broad swath of benefits and eliminating judicial challenges to their benefits. There is likely great public and political support for this; and 2) an opportunistic taking advantage of the current state of affairs to strengthen existing laws in favor of the injured workers, with the goal of eroding apportionment in the long-term. Apportionment is the principal that employers in California are only liable for permanent disability directly resulting from an industrial injury.
Clarification will be required if this passes in its current form. For example, it is proposed for any COVID diagnosis post 1/1/2020 even though the Shelter in Place order didn’t come down until 3/04/2020. Who would be the excluded hospital employees if only certain hospital employees are covered? Would that be limited to hospital employees in direct contact with COVID-19, or all hospital employees working at a medical facility after 1/01/2020? It would seem that it should only extend for 14 days following termination of service rather than 90 days since the current medical authorities seem to think that’s the period within which symptoms are likely to manifest. Perhaps the 90 days was contemplated based on the 90-day delay period? Much is left open in its present state.
As to a conclusive presumption, the WCIRB has issued an estimate of the potential costs, and it is staggering. The WCIRB has estimated<https://wcirb.com/news/wcirb-releases-cost-evaluation-conclusive-covid-19-presumption> the cost of the presumption in AB 644 could range from $2.2 billion to $33.6 billion. The WCIRB estimates the midrange cost for the bill to be $11.2 billion, including $6.7 billion in medical costs and $3 million in loss adjustment expenses. For context, total work comp payments in 2018 were $23.5 billion, including $6.9 billion in medical benefits and $4.8 billion in loss adjustment expenses. (Click here to read more:
http://ww3.workcompcentral.com/news/story/id/eb701244be964c8e6842d0c7714f85108f6dceef)
By: Jeannette Herrera and Pat McAleer
As our daily lives and businesses are disrupted by the current health crisis, questions have arisen as to whether COVID-19 illnesses must be reported to the California Occupational Safety and Health Administration (“Cal-OSHA”). Generally, an employer must notify Cal-OSHA if: 1) there is a confirmed case of COVID-19, 2) COVID-19 caused serious injury or illness or death, and 3) said injury, illness, or death occurred at work.
Effective January 1, 2020, AB 1805, codified in Labor Code section 6302, amended the definition of serious injury or illness to align with Federal OSHA regulations. Now, a serious injury or illness includes all inpatient hospitalizations, regardless of the length of stay, unless the hospitalization is for medical observation or diagnostic testing. The previous requirement that inpatient hospitalizations last for more than 24 hours was removed. In other words, COVID-19 would qualify as serious if an employee requires any hospitalization other than for observation and for testing if the exposure to and contraction of the illness is work-related.
While most people who contract COVID-19 experience mild symptoms, a minority of people experience more severe symptoms, including difficulty breathing and even death. Practically speaking, an employer would have difficulty determining the severity of an employee’s symptoms if no medical treatment is sought, let alone being able to confirm an employee has COVID-19. Rather, an employee would likely have to test positive for COVID-19 and have symptoms severe enough to warrant hospitalization. Many medical facilities are not even testing for COVID-19 until the individual is hospitalized. Thus, an employee’s work-related COVID-19 contraction will not likely constitute a serious illness unless the employee requires hospitalization.
Most importantly, like any workers’ compensation injury, there has to be a causal relationship between the employment and the contraction of COVID-19. If an employer believes an employee contracted a serious illness from COVID-19 at the workplace, it must be reported to Cal-OSHA and recorded on Cal-OSHA Form 300. If the employer has no reason to believe a serious illness from COVID-19 is related to work, there is no reporting or recording requirement.
Presuming the illness qualifies as serious, what happens if an employer is unsure whether an employee contracted COVID-19 at work? Title 8, California Code of Regulation (“CCR”) section 14300.5 mandates if an employer is unsure whether the employee contracted COVID-19 in the workplace, the employer must evaluate the employee’s work duties and environment to decide whether or not industrial events or exposures caused this illness. In other words, the employer must conduct a reasonable investigation to determine if the employer’s duties or environment exposed the employee to COVID-19. In low-risk industries, this will likely be extremely difficult to prove.
There are relevant exemptions to what constitutes a work-related injury. Regulation section 14300.5 specifies exemptions to include if an employee’s symptoms surfaced at work but results from a non-work-related event. Notably, this section also exempts the common cold or flu from constituting a work-related injury. However, the regulation delineates that contagious diseases such as tuberculosis, brucellosis, hepatitis A, or the plague do not fall within this exemption. By comparison, COVID-19 appears more analogous to a contagious disease based on the potential for severity of illness and current epidemic. Simply put, unlike the common cold and flu, COVID-19 is not likely to qualify as an exempted work-related illness.
In circumstances where an employer is required to report COVID-19 to Cal-OSHA, the employer could be fined if the illness resulted from a workplace hazard. Title 8, CCR section 334 provides if there is a “realistic possibility” of death or serious physical harm resulting from a workplace actual hazard, there is a rebuttable presumption of a serious violation. This Regulation defines an actual hazard to include an unsafe or unhealthful work environment resulting from the employer’s practices, means, and processes adopted. If Cal-OSHA determines the illness as caused by an employer’s failure to take reasonable steps to create a safe work environment in light of COVID-19, Cal-OSHA could issue a serious violation or accident-related serious citation. An employer can rebut this presumption by demonstrating it did not know or could not have reasonably known the presence of the violation. For example, if an employee can establish she contracted COVID-19 from a co-worker and the employer took reasonable safety precautions, no serious violation will issue. Employers should refer to OSHA’s Guidance on Preparing Workplaces for COVID-19 for recommended steps an employer can take to create a safe work environment as a way to insulate itself from serious safety violations.
In short, low-risk employers may not have to report to Cal-OSHA instances of COVID-19 contractions by employees. COVID-19 would have to cause an employee to suffer serious symptoms resulting in hospitalization or death but even then, there will be difficulty in establishing a causal relationship between the employee’s work duties and contraction of COVID-19.
By Cortney Lemos-Crawford and Kelsey Paddock
Click here to review the CCC —> 84 Cal. Comp. Cases 107
Ms. Luis (“Applicant”) sustained an injury on 12/9/2013 while employed by Labor Finders as a bakery assistant. She alleged injury to her lumbar spine, cervical spine, right knee, right upper extremity, bilateral hips, digestive and excretory systems, skin and right hand. Defendant accepted the lumbar spine, cervical spine, right knee, and right upper extremity only. Applicant had sustained at least three prior industrial injuries to overlapping body parts, all of which had resolved by Compromise & Release.
The parties agreed to use Dr. Jeffrey Bernicker as an Agreed Medical Evaluator (“AME”). He evaluated Applicant twice and reviewed 1,800 pages of medical records and prior settlement documents. Ultimately, he concluded that any impairment was the result of the prior industrial injuries. Dr. Bernicker stated, “Rarely throughout my career as a Medical-Legal examiner serving the greater San Diego Workers’ Compensation community (during which time I have issued well over 3000 AME reports) have I encountered a case where there [is] so much evidence supporting extensive apportionment to prior industrial injuries.”
Applicant subsequently alleged an additional injury against Labor Finders from 2015, which was during the period that she was working modified duty due to the 2013 claim. Dr. Bernicker evaluated Applicant for that date of injury as well. He found that the injury, “either never occurred in the first place or, even if it hypothetically was considered to have occurred, simply represented a mild transient flare-up of the symptoms that have been well documented prior to that date and for which the patient was already under active treatment.”
The matter proceeded to a four-day trial before Judge Ellison at the San Diego Workers’ Compensation Appeals Board (“WCAB”) with Hanna Brophy’s Ms. Lemos-Crawford appearing on behalf of the Defendant. Having relied on the opinions of AME Dr. Bernicker, Judge Ellison ruled in favor of Defendant!
Applicant filed a Petition for Reconsideration arguing that the opinions of Dr. Bernicker were not substantial medical evidence because they were predicated on surmise, speculation conjecture, or guess. Applicant further argued that Dr. Bernicker was biased against her based on her prior work injuries. The WCAB denied Applicant’s Petition for Reconsideration noting that Applicant “mischaracterize[d] the record.”
Applicant then filed a Writ for Review based on the same premise. The District Court of Appeal (“the Court”) denied Applicant’s Petition, noting that it was “[b]ased on the same errors of which Luis complained to the Board.” It emphasized that the Court may only consider whether the “the evidence, when viewed in light of the entire record, supports the Award of the Board.” It may not reconsider the evidence itself. Further, the Court citedPearson Ford v. WCAB (2017) to reiterate that an AME’s opinion should be followed “unless there is good reason to find the opinion unpersuasive, given that the parties typically select an agreed medical evaluator for her expertise and neutrality.” (16 Cal. App. 5th 889, 892).
This case provides further precedent that the opinions of an AME should be followed absent good reason to find the opinion unpersuasive. Defendants should be encouraged to stand their ground when the facts and the law are on their side.
Newsline No.: 2018-105 Date: December 18, 2018
Mileage Rate for Medical and Medical-Legal Travel Expenses Increases Effective January 1, 2019
The Division of Workers’ Compensation (DWC) is announcing the increase of the mileage rate for medical and medical-legal travel expenses by 3.5 cents to 58 cents per mile effective January 1, 2019.
This rate must be paid for travel on or after January 1, 2019 regardless of the date of injury. Labor Code Section 4600, in conjunction with Government Code Section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS).
IRS bulletin Number IR-2018-251 dated December 14, 2018 announced the rate increase. The updated mileagereimbursement form is posted on the DWC website.
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