MICHAEL SULLIVAN & ASSOCIATES BLOG

Your Resource for the Latest Legal News, Combined with Insights and Recommendations from Our Attorneys

WCAB Issues Significant Panel Decision That It Will Continue to Follow Shipley

WCAB Issues Significant Panel Decision That It Will Continue to Follow Shipley

As discussed in an earlier Special Report,[1] for more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to Labor Code § 5909. That statute states, "A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed.

Exclusive Remedy Rule and Claims Against Co-Workers

Exclusive Remedy Rule and Claims Against Co-Workers

Under Labor Code § 3602, workers' compensation benefits are "the sole and exclusive remedy of the employee or his or her dependents against the employer" for work-related injuries. The purpose of the exclusive remedy rule is to protect the employer's side of the compensation bargain. Under that bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault. In exchange, he or she gives up the wider range of damages potentially available in tort.

Pictures from PARMA's 2024 Annual Conference!

Pictures from PARMA's 2024 Annual Conference!

MS&A had a wonderful time at the PARMA 2024 Annual Conference! From insightful sessions to networking with industry leaders, it was an incredible experience. Grateful for the opportunity to learn, connect, and grow in the risk management field!

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, Facebook, and X. We'd love to have you attend one of our events!

Liability for Temporary Disability When Employee Refuses Work

Liability for Temporary Disability When Employee Refuses Work

Temporary disability (TD) benefits serve as wage replacement during the period an injured worker is healing from an industrial injury. An employer's obligation to pay TD benefits ceases when such replacement income is no longer needed. The obligation to pay TD benefits ends when the worker returns to work, is deemed able to return to work or when the worker's condition achieves permanent and stationary status.

Announcing MS&A's New IDR Department!

Announcing MS&A's New IDR Department!

As the new year begins, I am excited to announce that we are adding a new practice area within the firm. In addition to the current practice areas of audits, civil liability, subrogation, workers' compensation, and employment law, we will now offer representation in matters related to California Public Employees’ Retirement System (CalPERS) Industrial Disability Retirements (IDR). Joining me in this endeavor will be Siobhan Kennedy, Shannon Ripple, Lisa Hendricks, and Kimberly Mall.

PIHRA's CELU 2024 Conference in Riverside

PIHRA's CELU 2024 Conference in Riverside

We had an amazing time at the CELU 2024 Conference this week! MS&A Managing Partner, Eric De Wames, and PIHRA President, Tara Fournier, shared valuable insights into leaves of absence and return to work issues in episode 10 of their ongoing "Building Airplanes in Flight" series. We're grateful for the chance to reconnect with friends and colleagues at the MS&A booth, where we provided resource materials, fun goodies, and had a prize drawing! We're already looking forward to next year!

Understanding the Premises Line Rule

Understanding the Premises Line Rule

Under the judicially created going and coming rule, an employee's injury while commuting to and from work is not compensable under the workers' compensation system, absent special or extraordinary circumstances. That's because long ago, the California Supreme Court believed that an employee going to and from the place of employment did not render any service for the employer. (Ocean Accident and Guarantee Co. v. IAC (1916) 173 Cal. 313, 322.)

But, "In an effort to create a sharp line of demarcation as to when the employee's commute terminates and the course of employment commences, courts adopted the premises line rule, which provides that the employment relationship generally commences once the employee enters the employer's premises." (Wright v. State of California (2015) 233 Cal. App. 4th 1218, 1231.) Injuries occurring after an employee has arrived on the employer's premises generally are presumed compensable as arising in the course of employment. Moreover, what constitutes the employer's premises has been broadly interpreted. The Supreme Court has stated, "The employer's premises include his parking lot as well as plant or office, and once the employee has reached the premises, employment is not interrupted by crossing public property while traveling from one part of the premises to another." (General Insurance Co. v. WCAB (Chairez) (1976) 16 Cal. 3d 595, 598-599.)

Special Report: What Happens After COVID Presumptions Are Repealed?

Special Report: What Happens After COVID Presumptions Are Repealed?

In 2020, the California Legislature passed Senate Bill 1159 (SB 1159), which established a rebuttable presumption for specified employees that illness or death resulting from COVID-19 arose out of and in the course of employment. The presumptions were established in Labor Code §§ 3212.86, LC 3212.87 and LC 3212.88.

In the Senate Floor Analysis for SB 1159, the Legislature believed that the burden of fighting COVID-19 had fallen disproportionately on a small group of workers in both the private and public sectors. The presumptions were enacted to reduce the barriers to accessing the workers’ compensation system for essential workers suffering from COVID-19.[1] So for several years, the COVID-19 presumptions made it easier for many workers to prove entitlement to workers' compensation benefits for illnesses related to COVID-19.

Special Report: WCAB Must Act on Petition for Reconsideration Within 60 Days

Special Report: WCAB Must Act on Petition for Reconsideration Within 60 Days

The Workers' Compensation Appeals Board (WCAB) has historically and increasingly faced a struggle to handle the volume of cases that come its way. As a result, too often it has failed to take action on a filed petition for reconsideration within the statutorily required 60 days. To date, parties have been protected from that failure because it was deemed a due process right to have the petition reviewed by the WCAB. Currently, scores and perhaps hundreds of cases are in that situation. In a new appellate court case, Zurich American Insurance Co. v. WCAB, it all seems to have changed, leaving all those parties without a remedy, and changing the reconsideration demands on practitioners.

MS&A is a Proud Sponsor of CHLA's Pedal4Kids fundraiser

MS&A is a Proud Sponsor of CHLA's Pedal4Kids fundraiser

Michael Sullivan & Associates is once again proud to support Children's Hospital Los Angeles! On November 11th, CHLA will be holding its annual Pedal4Kids fundraiser at Cyclebar in Santa Monica.The event will raise funds to support the Division of Urology, funding world class surgical care, education, family support, and research. The Division of Urology at CHLA, #6 in the Best Hospitals US News and World Report, is one of the busiest and most comprehensive programs of its kind. CHLA physicians care for 12,000 patients and perform more than 3,000 surgeries annually.

If you can't join us at the Pedal4Kids event this year, please consider donating to CHLA on our "Rhino's Team" web page on the CHLA site. We hope to see you on November 11th!

Introducing Our New Audit Services Department

Introducing Our New Audit Services Department

In our ongoing effort to better serve you and adapt to the changing needs of the workers’ compensation industry, we're proud to announce the official launch of our Audit Services department. Over the past few years, several respected self-insured employers and third-party administrators have approached us, either in the aftermath of a challenging audit or in preparation for an anticipated one, seeking our expertise and guidance in navigating the complex world of audits and regulatory compliance. Led by Senior Partner, Pilar Mitchell, our dedicated team of attorneys and industry experts has not only successfully guided numerous companies through these intricate OSIP and DWC audit processes but has also demonstrated how engaging our team early can significantly amplify the effectiveness of our assistance.

MS&A Launches New Employment Law Podcast

MS&A Launches New Employment Law Podcast

We’re excited to announce that our Employers’ Legal Lounge podcast is now live! Episode 1, with special guest Tara Fournier, is ready to listen to on your favorite podcast app or website — just visit the podcast's web page for links.

Tune in every month as Michael Sullivan & Associates attorney, Eric De Wames, and a rotating roster of guest experts discuss the most recent developments, emerging trends, and effective strategies within California's dynamic employment law environment. Each month, Eric will dive deep into the most recent cases, legislation, and general trends to provide you with valuable insights and guidance for navigating the complex world of employment regulations in the Golden State.

Expedited Review of Requests for Treatment

Expedited Review of Requests for Treatment

An employer must conduct utilization review (UR) to determine whether to approve, modify or deny a request for treatment. If the medical services have not been provided, Labor Code 4610(i)(1) normally requires the UR determination to be made within "five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician." California Code of Regulations § 9792.9.1(c)(3) generally requires prospective or concurrent UR decisions to be made within five business days from the date of receipt of the completed DWC form RFA (request for authorization).

2024 Employment Law Legislation Employers Must Know

2024 Employment Law Legislation Employers Must Know

The California Legislature has concluded its final session of the year, passing an abundance of new employment laws. Now that the Governor’s time to veto, approve, or allow these bills to take effect has passed, here are some key new laws that California employers should be aware of. Please note that this is only a summary of important new laws, and covers neither every new law nor every aspect of the laws below.

Service of Qualified Medical Evaluator Panels

Service of Qualified Medical Evaluator Panels

Labor Code § 4062.2 establishes the procedure to be followed "[w]henever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney." A party may request a panel of qualified medical evaluators (QME panel) the first working day that's at least 10 days after the date of mailing a request for a medical evaluation pursuant to LC 4060, or the first working day that's at least 10 days after the date of mailing an objection pursuant to LC 4061 or LC 4062.

Nunes II: WCAB Upholds Vocational Apportionment as Invalid

Nunes II: WCAB Upholds Vocational Apportionment as Invalid

On June 22, 2023, in Nunes v. State of California, Dept. of Motor Vehicles,[1] the Workers' Compensation Appeals Board (WCAB) issued an en banc holding that:

  1. Labor Code § 4663 "requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code makes no statutory provision for 'vocational apportionment.'"
  2. "Vocational evidence may be used to address issues relevant to the determination of permanent disability."
  3. "Vocational evidence must address apportionment, and may not substitute impermissible 'vocational apportionment' in place of otherwise valid medical apportionment."

Fun in the Sun at Sedgwick’s Rancho Cordova Sprit Week

Fun in the Sun at Sedgwick’s Rancho Cordova Sprit Week

MS&A enjoyed visiting Sedgwick’s Rancho Cordova office on “Sports Fan” day during its summer Spirit Week! Shave Ice “won” the day with cool treats!

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, Facebook, and Twitter. We'd love to have you attend one of our events!

How To Handle Pending Appeals Following Earley v. WCAB

How To Handle Pending Appeals Following Earley v. WCAB

On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. The court held that grant-for-study orders violated Labor Code § 5908.5. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days. This case was discussed in detail in our previous article.[1]

July 2023 Rhino Round-Up

July 2023 Rhino Round-Up

It's time for the July Rhino Round-up! Summer is here and we enjoyed some great events with our clients and colleagues, while simmering in the California sunshine.

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, Facebook, and Twitter. We'd love to have you attend one of our events!

Special Report: Court Invalidates Common Reconsideration Practice

Special Report: Court Invalidates Common Reconsideration Practice

On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. It held that pursuant to Labor Code § 5908.5, the WCAB must state in detail the reasons for its decision to grant reconsideration and the evidence that supports it. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days.

CA Courts Refuse to Expand Employer’s Duty to Prevent Spread of COVID

CA Courts Refuse to Expand Employer’s Duty to Prevent Spread of COVID

California employers scored a victory this week, as both the CA Supreme Court and US Court of Appeals for the 9th Circuit confirmed that employers owe no duty of care to prevent the spread of COVID to members of their employees’ households. The facts of the case, Kuciemba v. Victory Woodworks, Inc., were actually super interesting!

As a furniture and construction company with jobsites all over California, Victory was declared an essential business during the COVID lockdowns of 2020. While the lockdown was ongoing, several employees at one of its jobsites contracted COVID. Instead of requiring its non-infected employees at that site to quarantine, Victory reassigned them to other jobsites, including Mr. Kuciemba’s, in violation of the health orders in place at the time. Not surprisingly, one of the reassigned employees gave Mr. Kuciemba COVID, and in turn, Mr. Kuciemba gave it to his wife. While she was fortunate enough to survive her bout with COVID, she was hospitalized for a considerable time, during part of which she required a respirator to breathe. The Kuciembas sued Victory, claiming (among other things) that Victory caused Mrs. Kuciemba’s injuries by negligently failing to protect its employees from the spread of COVID.

Request for a Replacement Panel Pursuant to Romero

Request for a Replacement Panel Pursuant to Romero

The Labor Code describes different procedures for requesting a panel of qualified medical evaluators (QMEs). Labor Code § 4062.1 controls the procedure by which parties may obtain a medical evaluation to address a disputed issue pursuant to LC 4060, LC 4061 and LC 4062 when the employee is not represented by an attorney. LC 4062.2 establishes the procedure when an employee is represented by an attorney.

Pursuant to LC 4062.1(b), either party may request a QME panel per LC 4060, LC 4061 and LC 4062 by submitting the form prescribed by the administrative director requesting the medical director to assign a panel of three QMEs. In unrepresented cases, the California Code of Regulations § 30(a)(1) states that for disputes covered by LC 4060, the requesting party must attach the claims administrator's notice that the claim was denied or a copy of the claims administrator's request for an examination to determine compensability. For disputes covered by LC 4061 or LC 4062, CCR 30(a)(2) states that "[I]f the requesting party is the claims administrator, the claims administrator shall attach a written objection indicating the identity of the primary treating physician, the date of the primary treating physician's report that is the subject of the objection and a description of the medical determination that requires a comprehensive medical-legal report."

Special Report: Kuciemba v. Victory Woodworks, Inc.

Special Report: Kuciemba v. Victory Woodworks, Inc.

Kuciemba v. Victory Woodworks, Inc.: Employer Does Not Owe a Duty of Care to Prevent the Spread of COVID-19 to Employees' Household Members

Employees have the right to file workers' compensation claims when they contract COVID-19 as a result of their employment. Workers' compensation is the exclusive remedy for an employee's COVID-19 claim.

Generally, the exclusive remedy doctrine bars not only civil claims against an employer by an injured worker, but also extends to claims brought by all others that are collateral to or derivative of the employee's injury. This is known as the derivative injury rule.

June 2023 Rhino Round-Up

June 2023 Rhino Round-Up

📸 It's time for the June Rhino Round-up! From industry conferences to bowling nights and baseball games, we built connections, expanded knowledge, and enjoyed unforgettable experiences.

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, Facebook, and Twitter. We'd love to have you attend one of our events!

Special Report: Nunes v. State of CA DMV - Vocational Apportionment Invalid

Special Report: Nunes v. State of CA DMV - Vocational Apportionment Invalid

It has long been recognized that an employee's ability to participate in vocational retraining is a significant factor that must be considered in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee's inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, an employee still can rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation. (Ogilvie v. WCAB (2011) 76 CCC 624.) That's commonly done with evidence from vocational experts.

Catching Up with Clients & Colleagues at the CCWC Conference!

Catching Up with Clients & Colleagues at the CCWC Conference!

Thanks to all of you who visited our booth at the CCWC Annual Conference to say hello, participate in our raffle, and pick up some free resources. Our happy hour at Splitsville was a lot of fun and it was great to catch up with colleagues and clients over cocktails, food, and bowling. Mark your calendars to join us next year on June 12, 2024!

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, Facebook, and Twitter. We'd love to have you attend one of our events!

May 2023 Rhino Round Up

May 2023 Rhino Round Up

May was a busy month for Team Rhino! We had a lot of fun events last month, including an evening watching the Padres and Giants play at Petco Park, a lobster feast hosted by the Yorba Linda Sunrise Rotary, and an afternoon spent improving our swings at Top Golf! Michael Sullivan & Associates was also very active at last month's CAHR 2023 Conference, hosting a memorable happy hour at Gladstone's, a booth with free resource materials and prize drawings, and the most recent chapter Eric and Tara's excellent "Building Airplanes in Flight" ongoing session.

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, Facebook, and Twitter. We'd love to have you attend one of our events!

Arbitration Agreements, Wage & Hour Issues & PAGA Litigation Webinar

Arbitration Agreements, Wage & Hour Issues & PAGA Litigation Webinar

Date & Time: June 14th, 2023 - 11:00 AM - 12:00PM
Register at: msa.news/06-14-23-webinar

California employers are not strangers to the ever-evolving minefield of compliance exposure under our unique employee-friendly state laws. Join employment law trial attorney Eric De Wames on June 14th, for an attorney’s perspective on key trends and common pitfalls in the wage and hour world. Get up to speed on the latest trends and strategies to avoid litigation exposure and defend claims when they arise. Attendees will obtain insights on pros and cons to arbitration agreements, PAGA action trends, and compliance suggestions to avoid exposure.

Space is limited, so register today!

PIHRA's 2023 CAHR Conference Was a Huge Success!

PIHRA's 2023 CAHR Conference Was a Huge Success!

PIHRA's 2023 California HR Conference was a resounding success! It was great to spend time with our valued clients, co-workers, and colleagues.

MS&A Managing Partner, Eric De Wames, and PIHRA President, Tara Fournier, presented the latest installment of their ongoing session "Building Airplanes in Flight (episode 9)" on Day 2 of the conference. Their session was a crowd favorite, offering insights into creating a healthy workplace environment while maintaining compliance with California's strict employment laws. MS&A's Happy Hour at Gladstone's was another highlight of the conference. Thank you to everyone who joined us and made it such a memorable evening! Thanks as well to those who stopped by our booth to say hello and learn more about the firm. We hope we’ll see you in the fall at PIHRA’s CELU23!

WCAB Extends Time Limit to Use Voucher Due to COVID-19

WCAB Extends Time Limit to Use Voucher Due to COVID-19

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.

We Hope to See You at PIHRA's California HR Conference!

We Hope to See You at PIHRA's California HR Conference!

PIHRA's 2023 California HR Conference (CAHR) is coming up soon! Michael Sullivan & Associates is a proud sponsor of the event, which is being held at the Long Beach Convention Center from May 8th to May 10th. Be sure to stop by our booth (#120) to say hello! There will be free resource materials and goodies available for conference attendees, as well as two raffle prizes, so be sure to bring your business cards.

SPECIAL REPORT: WCAB Reinstates Remaining Rules Suspended Due to COVID

SPECIAL REPORT: WCAB Reinstates Remaining Rules Suspended Due to COVID

On March 22, 2023, the Workers' Compensation Appeals Board (WCAB) issued its ninth, and possibly final, en banc decision regarding COVID-19, “In Re: COVID-19 State of Emergency En Banc –– No. 9.” Because Governor Newsom terminated the state of emergency in response to COVID-19 as of Feb. 28, 2023, the WCAB announced that it was rescinding all remaining en banc decisions which had temporarily suspended specific WCAB Rules of Practice and Procedure, effective as of the date of the decision. Specifically, the WCAB announced the following decisions were rescinded:

What Constitutes a Timely Denial Under LC 5402(b)?

What Constitutes a Timely Denial Under LC 5402(b)?

Generally, an employer must deny a claim within 90 days to avoid a presumption that it's compensable. Labor Code 5402(b)(1) states, "If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division." Once the presumption attaches, it can be rebutted only by evidence that could not have been obtained with the exercise of reasonable diligence within the 90-day period. (SCIF v. WCAB (Welcher) (1995) 60 CCC 717.)

Requesting Consulting Physicians Within an MPN

Requesting Consulting Physicians Within an MPN

Labor Code 4616.3(c) establishes a process that allows injured employees to obtain second and third opinions from physicians within a medical provider network. It states, "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

Per LC 4616.4(b), "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request an MPN independent medical review regarding the disputed treatment or diagnostic service still in dispute ... in accordance with Section 4616.3." That's referred to as an MPN IMR.

Cal/OSHA COVID-19 Non-Emergency Standards

Cal/OSHA COVID-19 Non-Emergency Standards

On February 3, 2023, Cal/OSHA’s COVID-19 Non-Emergency Standards was approved and became effective. The Non-Emergency Standards will remain in effect until February 3, 2025, and can be found at https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Non-Emergency-apprvdtxt-oal.pdf.

The Non-Emergency Standards relax several previously mandatory requirements and have modified some important definitions.

The following are changes employers need to be aware of and implement.

Special Report: Revisions to Medical-Legal Evaluation Regulations

Special Report: Revisions to Medical-Legal Evaluation Regulations

The Division of Workers' Compensation (DWC) revised regulations related to medical-legal evaluations effective Feb. 2, 2023. The regulations make changes to the rules for scheduling QME examinations and permanently adopt regulations allowing remote medical-legal evaluations. Specifically, the regulations make these changes to the medical-legal process:

Striking a Qualified Medical Evaluator and the Mailbox Rule Revisited

Striking a Qualified Medical Evaluator and the Mailbox Rule Revisited

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, Labor Code 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel.

The Rhino 2023 Employment Law Update

The Rhino 2023 Employment Law Update

2023 marks the end of COVID-19 emergency regulations and the implementation of permanent COVID requirements. While several of the new 2023 laws relate in some way to COVID, businesses can expect a return to more non-COVID related requirements. Employers must implement wage transparency policies and implement an expansion of CFRA and sick leave policies by expanding the definition of family member to include a non-blood related individual. To avoid retaliation claims, employers must be aware of additional protected activities included those related to reproduction and fertility and employees’ right to leave the workplace during natural disasters and emergency conditions. Finally, bereavement leave has been expanded and, for larger employers, new privacy requirements must be implemented.

Vocational Evidence and LC 4660.1(c)

Vocational Evidence and LC 4660.1(c)

For injuries on or after Jan. 1, 2013, Labor Code 4660.1(c)(1) states that "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." LC 4660.1(c)(2)(A)(B), however, specifies two exceptions allowing an increased impairment rating for a psychiatric disorder. An employee may receive such a rating by proving that the injury resulted from either: (1) being a victim of a violent act or direct exposure to a significant violent act; or (2) a catastrophic injury. Moreover, the WCAB continues to hold that the permanent disability schedule under LC 4660.1 can be rebutted by vocational evidence.

WCAB Holds That CTE Is an Insidious Progressive Disease

WCAB Holds That CTE Is an Insidious Progressive Disease

Generally, the Workers' Compensation Appeals Board's jurisdiction to award new and further disability is limited to five years from the date of injury. Labor Code 5410 states, "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability." LC 5804 states, "No award of compensation shall be rescinded, altered, or amended after five years from the date of injury ..." unless there is a timely filed petition. The appeals board generally may not reserve jurisdiction to award additional disability more than five years from the date of injury. (Hartsuiker v. WCAB (1993) 12 Cal. App. 4th 209.)

Happy Veterans Day from Michael Sullivan & Associates

Happy Veterans Day from Michael Sullivan & Associates

Veterans Day is a special day to remember the courage and sacrifice of our men and women in uniform. Michael Sullivan & Associates is especially proud of our employees, such as Employment Attorney Greg Wilbur, who have served our nation with honor.

Prior to attending law school, Greg served in the Marine Corps as a commissioned officer from 2006 to 2010. Highlights of his service included working as an embedded combat advisor to the Iraqi Police in Anbar Province, commanding dozens of convoys throughout that country, and developing a comprehensive training plan to prepare his unit for its eventual deployment to Afghanistan. For his service, Greg was twice awarded the Navy and Marine Corps Commendation Medal and was promoted to Captain in the reserves after leaving active duty.

MS&A Attorney Chris Matthes' interview from Inter Alia Magazine

MS&A Attorney Chris Matthes' interview from Inter Alia Magazine

A Rare Renaissance Man

by Diane Skouti
Inter Alia Magazine - Volume 33, Issue 3
San Joaquin College of Law

For most attorneys, free time is a scarce commodity given over only to family, favored activities, and rest. Because of their universal penchant to serve, many legal professionals serve on boards and volunteer, in addition to pursuing a few hobbies.

For Chris Matthes (Law '16) time doesn't seem to exist. A newly promoted Supervising Attorney at the Fresno office of Michael Sullivan & Associates, Chris is obviously devoted to his legal career. The firm specializes in workers' compensation law, but also handles employment law, general liability, and the like. In his new role, Chris oversees junior attorneys, along with his own case load of workers comp defense, and the niche area of defending insurance carriers and third-party administrators against audit. There are nearly 100 attorneys among the firm’s nine statewide offices, and, like the Rhino featured in the firm’s logo, they are aggressive and effective in their approach.

WCAB's Denial of 132a Claim Does Not Bar Civil Claim Under FEHA

WCAB's Denial of 132a Claim Does Not Bar Civil Claim Under FEHA

Generally, workers' compensation is the exclusive remedy for injuries occurring at the workplace. A worker normally must pursue claims for work-related injuries before the Workers' Compensation Appeals Board (WCAB) rather than sue the employer in civil court.

Nevertheless, certain types of intentional conduct take the employer beyond the boundaries of the compensation bargain. In City of Moorpark v. Superior Court of Ventura County (Dillon) (1998) 18 Cal.4th 1143, the California Supreme Court held that discrimination falls outside of the compensation bargain. It concluded that Labor Code 132a does not provide the exclusive remedy for discrimination based on a work-related injury.

CAL/OSHA and CDPH Release Guidance for Monkey Pox

CAL/OSHA and CDPH Release Guidance for Monkey Pox

Cal/OSHA Guidance Applicable to Employers Subject to the ATD

As monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. This guidance applies only to workplaces covered by the aerosol transmissible diseases (ATD) standard so, for now, employers not subject to the ATD are not required to follow these recommendations. See the guidance here.

COVID AB 685 Employee Notice Requirements Updated & Extended to 2024

COVID AB 685 Employee Notice Requirements Updated & Extended to 2024

On September 29, 2022, California’s Governor signed Assembly Bill (AB) 2693, which amends and extends the COVID-19 workplace notice requirements stipulated in AB 685 until January 1, 2024. AB 2693 can be found here.

The existing law, AB 685, was enacted in 2020 and requires employers to provide written notice to employees who may have been exposed to COVID-19 in the workplace. The notice must be provided to all employees at the worksite within one business day and must include information regarding benefits available to employees, the company’s disinfection and safety plan, and a statement of anti-discrimination and anti-retaliation. For a full description of AB 685 see the CAL/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure update on Michael Sullivan & Associates' free eBook, Navigating COVID-19: a Legal Guide for Employers. Originally, this notification requirement was set to expire on January 1, 2023. AB 2693 extends this reporting requirement to January 1, 2024, and gives employers another option for complying with the notification requirements.

San Francisco Adopts Public Health Emergency Leave Ordinance

San Francisco Adopts Public Health Emergency Leave Ordinance

San Francisco voters passed Proposition G, a new public health emergency leave ordinance (PHELO) which takes effect on October 1, 2022. A copy of the proposition can be found here.

Leave is available only during a public health emergency, as defined by law. The public health emergency can be one declared by the federal or state government or declared locally by the City of San Francisco.

COVID-19 Supplemental Paid Sick Leave Extended Through December 31, 2022

COVID-19 Supplemental Paid Sick Leave Extended Through December 31, 2022

On September 29, 2022, Governor Gavin Newsom signed Assembly Bill (AB) 152, extending the obligation of employers with 26 or more employees to provide COVID-19 supplemental paid sick leave (SPSL) through December 31, 2022. The text of AB 152 can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB152.

Importantly, the bill doesn’t require employers to provide any additional leave. When originally enacted, SPSL required covered employers to provide paid COVID-related leave through September 30, 2022. The extension of SPSL does not require employers to provide new or additional leave. Instead, the up to 80 hours of SPSL that employees could have used between January 1, 2022 and September 30, 2022 (the original expiration date) must continue to be available through December 31, 2022, and possibly slightly beyond 2022 if an employee begins a covered absence at the end of 2022 that continues, uninterrupted, into 2023.

Red Alert: Analysis of Senate Bill 1127

Red Alert: Analysis of Senate Bill 1127

Yesterday we issued a summary of workers' compensation bills recently signed into law. The most significant is SB 1127, which is outlined in depth here. A webinar will be scheduled shortly to delve into these changes and their implications.

On Sept. 29, 2022, Gov. Gavin Newsom signed into law SB 1127. The bill makes several changes to coverage by a statutory presumption of compensability. As explained in the Assembly Floor Analysis, "presumptions of compensability have been adopted, some many decades ago, to reflect unique circumstances where injuries or illnesses appear to logically be work related, but it is difficult for the injured worker to prove it is work related."[1]

MS&A Employment Department Expands OSHA Compliance & Defense Practice

MS&A Employment Department Expands OSHA Compliance & Defense Practice

When the COVID-19 Pandemic brought new attention to occupational health and safety, Michael Sullivan and Associates became the go-to resource for clients and all California employers. Through countless free webinars and the acclaimed live e-book, Navigating COVID-19: A Legal Guide for California Employers, we guided employers through the ever-changing emergency mandates and the onslaught of new legislation.

DVICA's "Cinemas on the Green" Golf Tournament

DVICA's

DVICA's "Cinemas on the Green" Golf Tournament last Friday was a blast! Michael Sullivan & Associates sponsored hole #5 and was awarded Best Decorated Hole! Team Rhino enjoyed networking with all of the golfers and serving up tasty cocktails and snacks. We're already looking forward to next year!

Receipt of a Request for Authorization by a Defense Attorney

Receipt of a Request for Authorization by a Defense Attorney

Labor Code § 4600(g)(2)(A) states, "Unless otherwise indicated in this section, a physician providing treatment under Section 4600 shall send any request for authorization for medical treatment, with supporting documentation, to the claims administrator for the employer, insurer, or other entity according to rules adopted by the administrative director." The statute directs that a request for authorization for medical treatment (RFA) must be sent to a claims administrator, rather than somewhere else, although the claims administrator may designate where the RFA is sent (CCR 9792.6.1(t)(3)).

LA RIMS' 2022 End of Summer Mixer Photos!

LA RIMS' 2022 End of Summer Mixer Photos!

Last Thursday's End of Summer Mixer, hosted by LA RIMS, was a blast! Attendees had full access to SoFi Stadium, home of the L.A. Rams and Chargers, where we got to show off our athletic skills with a number of football-related challenges and even tour the teams' locker rooms. It was an epic evening spent with friends and colleagues!

Anchors Away! Dana Point Harbor Cruise Photos

Anchors Away! Dana Point Harbor Cruise Photos

Last Tuesday's cruise around Dana Point Harbor, hosted by Michael Sullivan & Associates, was a welcome chance to relax and unwind after the first day of this year's Workers' Compensation & Risk Conference. It was a great evening to reconnect with clients and colleagues, while enjoying food, drinks, and a beautiful sunset!

Workers' Compensation & Risk Conference Golf Tournament

Workers' Compensation & Risk Conference Golf Tournament

This year's Workers' Compensation & Risk Conference (WCRC) got off to a great start yesterday morning, with a golf tournament held at the Monarch Beach Golf Links! It was a beautiful day on the fairway and a perfect beginning to this week's conference. If you're attending WCRC, we hope you'll come visit us at Booth #1004 in the Pacific Ballroom Foyer, where you can spin our wheel of fortune for an awesome giveaway--and don't forget to bring business cards to enter our raffle drawing!

Liability for Cumulative Trauma Injury Under LC 5500.5

Liability for Cumulative Trauma Injury Under LC 5500.5

Multiple employers or insurers can be liable for a cumulative trauma (CT) injury, and it's common for employers or insurers to dispute whether and how much liability they have for such an injury. Pursuant to Labor Code 5500.5(a), liability for a CT injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first.

Urgent Report: DWC Announces In-Person Walk-Throughs Starting 9/6

Urgent Report: DWC Announces In-Person Walk-Throughs Starting 9/6

On August 9, 2022, the Division of Workers’ Compensation (DWC) announced that all DWC district offices except Eureka will accept in-person walk-through documents beginning September 6, 2022, pursuant to CCR 10789. Eureka is permanently a virtual office and walk-through documents should be brought to the DWC Santa Rosa district office.

Time Extensions for Petitions for Reconsideration

Time Extensions for Petitions for Reconsideration

Per Labor Code § 5903, a petition for reconsideration may be filed "[a]t any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers' compensation judge." Although LC 5903 establishes a basic 20-day time period for filing a petition for reconsideration, most parties are given longer.

Padres v. Giants Game at Petco Park

Padres v. Giants Game at Petco Park

Thanks to everyone who joined us at Petco Park for the Padres v. Giants game last Friday! It was a great game (especially for you Padres fans) and a great night of catching up over food, drinks, and friendly team rivalries!

Special Employment and Union Workers

Special Employment and Union Workers

When an employer lends an employee to another employer and both have the right to exercise certain powers of control over the worker, a "special employment" relationship arises. The employee can be held to have two employers — the original "general employer" and the second "special employer." If a special employment relationship is found to exist, both employers are jointly and severally liable for any injuries to the employee.

SCOTUS Rules Arbitration Agreements Can Waive PAGA Claims

SCOTUS Rules Arbitration Agreements Can Waive PAGA Claims

In a highly-anticipated opinion released yesterday, Viking River Cruises, Inc. v. Moriana, the Supreme Court of the United States ruled that arbitration agreements between employers and employees can both send an employee’s claims under the Private Attorneys General Act, or PAGA, to binding private arbitration and prevent the employee from litigating Labor Code violations allegedly suffered by other employees. The immediate effect is a win for California employers with properly drafted arbitration agreements, but the opinion may signal the start of a new phase in the long-running arbitration wars rather than the decisive victory some employers hoped for.

Settling Cumulative Trauma Claims Involving Multiple Defendants

Settling Cumulative Trauma Claims Involving Multiple Defendants

Pursuant to Labor Code 5500.5(a) , liability for a cumulative trauma injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last exposure to the occupational hazard, whichever occurs first. Multiple employers or insurers can be liable for a cumulative trauma (CT) injury. An employee can choose to obtain an award for her or his entire CT injury from one or more employers for whom they have worked within the preceding year (LC 5500.5(c)).

Cal/OSHA Approves 3rd Revision of the Emergency Temporary Standards

Cal/OSHA Approves 3rd Revision of the Emergency Temporary Standards

On April 21, Cal/OSHA held a public hearing and re-adopted a modified version of the Emergency Temporary Standard (ETS) that originally went into effect on November 30, 2020. This third revision took effect on May 6, 2022 and will remain in place through December 31, 2022. The revised ETS can be found here: https://www.dir.ca.gov/oshsb/documents/Apr212022-COVID-19-Prevention-Emergency-txtbrdconsider-3rd-Readoption.pdf.

An Analysis of  Death Claims’ Statute of Limitations

An Analysis of  Death Claims’ Statute of Limitations

The statute of limitations for pursuing death benefits is established in LC 5406. Except for LC 5406.5 and LC 5406.6 (which cover deaths from asbestos and HIV-related disease), proceedings for the collection of death benefits, per LC 5406(a), may be commenced one year from:

  1. the date of death when it occurs within one year from date of injury;
  2. the date of last furnishing of any compensation benefits, when death occurs more than one year from the date of injury; or
  3. the date of death, when death occurs more than one year after the date of injury and compensation benefits have been furnished.

MS&A Will Be at CAHR22 - Will We See You There?

MS&A Will Be at CAHR22 - Will We See You There?

The California HR (CAHR) conference is less than a month away – are you planning to attend? Michael Sullivan and Associates is a proud sponsor of this year's conference taking place at the Anaheim Convention Center May 8th through May 10th. CAHR22 offers education and an opportunity to network with HR professionals statewide. Hear speakers share their experiences on challenges affecting operations, regulatory changes, and best practices for managing human resources. PIHRA has designed this conference for both in-person and virtual attendees, so don’t miss out on the opportunity to earn continuing education credits and find empowerment among your community. To register for the conference, go to https://cahrconference.org.

Designating Address, Fax Number or Email Address for Utilization Review

Designating Address, Fax Number or Email Address for Utilization Review

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rules of Practice and Procedure to permit electronic service, including via email. The Labor Code, however, previously recognized electronic service of a request for authorization (RFA) for medical treatment. Specifically, LC 4610(i)(1) states: "The request for authorization and supporting documentation may be submitted electronically under rules adopted by the administrative director."

Urgent Report: DWC Announces In-Person Trials Starting March 21, 2022

Urgent Report: DWC Announces In-Person Trials Starting March 21, 2022

On March 9, 2022, the Division of Workers’ Compensation (DWC) announced that in-person hearings will resume starting March 21, 2022, at almost all of the DWC district offices. The only exceptions are Eureka, which is now a completely virtual office, and satellite locations Bishop, Marysville, Chico and Ukiah, which also will remain virtual.

CMS Warns Against Using 'Non-Submit' and 'Evidence-Based' Medicare Set-Asides

CMS Warns Against Using 'Non-Submit' and 'Evidence-Based' Medicare Set-Asides

The Centers for Medicare & Medicaid Services (CMS) has updated its Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (Reference Guide). The latest version, Version 3.5, was published Jan. 10, 2022. The Reference Guide was updated to clarify the use of non-CMS-approved products to address future medical care.

California Implements Extended Supplemental Sick Leave

California Implements Extended Supplemental Sick Leave

On Tuesday a deal was struck between Gov. Newsom and California lawmakers to provide a new Supplemental Sick Leave similar to the one that expired on September 30. Those who follow my webinars may recall I predicted this would occur in delayed fashion after the 9/30 expiration (e.g. the March 2021 retroactive extension), but this was well beyond any predicted delay. Although not yet in final form, here are the components we expect:

Establishing Permanent Total Disability with Medical & Vocational Evidence

Establishing Permanent Total Disability with Medical & Vocational Evidence

It has long been recognized that an employee's ability to participate vocational retraining is a significant factor that must be considered in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee's inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, in Ogilvie v. WCAB (2011) 76 CCC 624, the Court of Appeal held that an employee could still rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation.

Special Report: Applied Materials v. WCAB

Special Report: Applied Materials v. WCAB

On June 1, 2021, the 6th Appellate District Court of Appeal certified for publication its decision in Applied Materials et al. v. WCAB.

In that case, the 6th District Court of Appeal issued a lengthy 73-page decision addressing multiple issues raised by the parties. However, the decision is most significant for two issues:

  1. Whether a worker's post-traumatic stress disorder (PTSD) arising from a treating physician's sexual misconduct is compensable under workers' compensation. It was.
  2. Whether the Fitzpatrick case[1] was wrongly decided. Fitzpatrick was important as it had held that the WCJ may not use LC 4662 on its own to make a finding of total permanent disability. This case and its finding were affirmed.

QME Evaluations via Telehealth

QME Evaluations via Telehealth

Because of the backlog of medical-legal evaluations caused by the COVID-19 pandemic, the Division of Workers' Compensation (DWC) adopted emergency regulations for medical-legal evaluations and reporting. The regulations became effective May 14, 2020, and originally were set to expire March 12, 2021. But they have been extended until Oct. 12, 2021.[1]

How Companies Can Protect Employee Rights

How Companies Can Protect Employee Rights

Your employees are what make your company operate so efficiently. At this tumultuous time in world history, some businesses are taking advantage of their workforce. However, the best companies are always and will always put the rights of their employees first. This can be in the form of simple policy change or may even include complete overhaul of their processes. In today’s blog, Michael Sullivan & Associates, the top-rated law firm in California, will be going over some of the ways companies can protect their employees and ultimately strengthen their business through a strong bond with their workforce .

How To Handle Employee Retaliation

How To Handle Employee Retaliation

Unfortunately, not every workplace is always the healthiest. Retaliation is usually one of the highest complaints filed with the Equal Employment Opportunity Commission (EEOC). While this complaint is usually paired with other complaints, such as sexual harassment or discrimination, retaliation is still one of the most noted complaints across all industries. In today’s blog, Michael Sullivan & Associates, the top-rated law firm in California, will help you better understand how you and your company can react to employee retaliation in the workplace. Keep reading to learn more, or contact MS&A to schedule an appointment with our employment law team today.

Special Report: Supplemental Sick Leave & Temporary Disability Overlap

Special Report: Supplemental Sick Leave & Temporary Disability Overlap

On March 19, 2021, Gov. Gavin Newsom signed Senate Bill 95 into law requiring most California employers to provide up to 80 hours of COVID-19 supplemental paid sick leave. The law went into effect on March 29, 2021, but the requirements applied retroactively to Jan. 1, 2021. So, if an employee was eligible, an employer retroactively must pay the COVID-19 supplemental leave when the employee requests it, either orally or in writing. We published a detailed exposition of this new law last week.

Employer Alert: CA Employers Must Provide 80 Hours of Paid COVID Leave

Employer Alert: CA Employers Must Provide 80 Hours of Paid COVID Leave

On March 19, 2021, Gov. Gavin Newsom signed Senate Bill 95, which extends and expands the requirement for employers to provide supplemental paid sick leave to employees affected by COVID-19. The law places new paid leave requirements on most California employers, and it requires their immediate attention. Gov. Newsom explained the reason for the new law: “Paid sick leave gives workers the time they need to care for themselves and loved ones while keeping their co-workers, families, and community safe.” The law takes effect immediately, but includes a 10-day grace period for employers to start providing sick leave. Employers must begin providing the leave on March 29, 2021. The new law applies retroactively to Jan. 1, 2021, and will remain in effect until Sept. 30, 2021. It’s enforced by the California Labor Commissioner.

California Tort Claim Act

California Tort Claim Act

Under the California Torts Claim Act (CTCA), if an incident occurs with a defendant who is a governmental entity, state government, city, or other public entity, a proper notice of the claim must be filed within 6 months of the injury or accident. California Government Code section 905. This is known as an “administrative claim.” This claim form must be filed first before you can file a Complaint in court.