MICHAEL SULLIVAN & ASSOCIATES BLOG

Labor Code § 4062.2 establishes the procedure for selecting a qualified medical evaluator (QME) when an employee is represented by an attorney. Pursuant to LC 4062.2(c), each party has 10 days from assignment to strike a doctor from a panel, a period extended by the mailbox rule. (Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc).) It adds that if a party fails to timely exercise a strike, "[T]he other party may select any physician who remains on the panel to serve as the medical evaluator."

Here’s a look back at some of the great moments MS&A had in March! From team-building fun to reconnecting with colleagues at industry events, it was a month full of connection and creativity. Check out the photos below to see how our teams came together to learn, grow, and unwind!

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, and Facebook. We'd love to have you attend one of our events!

When an employee is injured during the course of employment due to the negligence of a third party, the worker may file a workers' compensation claim against the employer and a civil claim for damages against the responsible third party. An employee is entitled to workers' compensation benefits regardless of whether he or she or the employer was negligent in causing the injury. In the civil courts, however, comparative negligence applies, "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Li v. Yellow Cab Co. of California (1975) 13 Cal. 3d 804, 829.)

February was a busy month for the MS&A team! We gained valuable insights at the 2025 PARMA Conference in Anaheim, connected with amazing people at the VICA Crab Feed, and enjoyed time with friends and colleagues at the EWC&R Conference. We also had the privilege of attending the John M. Langston Bar Association of Los Angeles’ 48th Annual Installation & Scholarship Awards Gala—an inspiring evening!

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, and Facebook. We'd love to have you attend one of our events!

Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.

The issue was addressed long ago in Downing v. City of Hayward (1988) 16 CWCR 76 (panel decision). In that case, the applicant's attorney objected to allowing his client's deposition because the defendant had failed to disclose whether or not it possessed surveillance films of him, and if it did, because it had failed to provide them to the attorney. Downing held that a defendant not only is not obligated to show any surveillance films prior to an applicant's deposition, but that it's also not obligated to disclose whether or not such films in fact exist. The WCAB explained:

It’s time for the January Rhino Round-Up!

January was a busy and exciting month for MS&A! From attending top industry conferences to hosting office meetings across our California locations, we kicked off 2025 with collaboration, learning, and connection.

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, and Facebook. We'd love to have you attend one of our events!

Pursuant to Labor Code § 5500.5(a), liability for a cumulative trauma (CT) injury is limited to the employer(s) that 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. That means multiple employers or insurers can be liable for a CT injury.

For cases in which multiple defendants have liability for a CT claim, LC 5500.5(c) allows the applicant to elect against any one or more of them. If the applicant makes an election against a defendant, he or she is required only to prove the claim against the named defendant. Liability for the nonelected defendant isn't determined until supplemental proceedings are instituted. Only the elected defendant has complete discovery rights, and the rights of nonelected defendants are deferred to contribution proceedings.

It’s the December Rhino Round-Up!

Last month was filled with unforgettable events, including the annual MS&A Holiday Party, festive gatherings at our regional offices, and holiday celebrations hosted by AAWCP, EWC&R, and AWCP. A heartfelt thank you to everyone who made this season so special. Here’s to carrying this spirit of connection and collaboration into 2025!

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, and Facebook. We'd love to have you attend one of our events!

As stated in Labor Code § 4610(a), utilization review is the process a defendant uses to "prospectively, retrospectively, or concurrently review and approve, modify, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, ..." (emphasis added). UR is the process to determine only whether a request for treatment is medically necessary. It does not determine other issues.

LC 4610(l) states, "Utilization review of a treatment recommendation shall not be required while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended pursuant to Section 4062." Accordingly, California Code of Regulations 9792.9.1(b) states that UR "may be deferred if the claims administrator disputes liability for either the occupational injury for which the treatment is recommended or the recommended treatment itself on grounds other than medical necessity." So a defendant is not required to submit a treatment recommendation to utilization review when a claim is denied or when it is disputing liability for reasons other than the reasonableness of the proposed care.

It’s the November Rhino Round-Up!

We attended inspiring industry conferences, hosted client education events, and strengthened our bonds during holiday parties and team-building activities. These moments remind us of the incredible people we work with every day—our team, clients, and community. Thank you for being part of our journey as we head into the holiday season!

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, and Facebook. We'd love to have you attend one of our events!

It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.

What an inspiring time at PIHRA's CELU 2024 Conference in Orange County!

Check out the highlights! MS&A’s Eric De Wames and PIHRA President Tara Fournier teamed up for the latest “Building Airplanes in Flight” session, where they explored the cutting-edge intersection of AI technology and employment law. MS&A and Lockton sponsored the post-conference happy hour, creating the perfect atmosphere to connect, unwind, and discuss the day's insights.

Thank you to everyone who attended, joined the discussion, and made this event so impactful. Here’s to more innovation and collaboration in the world of employment law!

Under former Labor Code § 5909, a petition for reconsideration was deemed denied by operation of law unless the Workers' Compensation Appeals Board (WCAB) acted on it within 60 days from the date of filing. Effective July 2, 2024, LC 5909 states:

• "(a) 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 a trial judge transmits a case to the appeals board.
• "(b)(1) When a trial judge transmits a case to the appeals board, the trial judge shall provide notice to the parties of the case and the appeals board.
• "(2) For purposes of paragraph (1), service of the accompanying report, pursuant to subdivision (b) of Section 5900, shall constitute providing notice."

LC 5909(c) specifies that the statute will be repealed as of July 1, 2026. The Court of Appeal has explained that LC 5909 was amended as a short-term fix to the WCAB's need for resources, and gives it the additional time to act on petitions it needs to resolve normal human errors or administrative irregularities. (Mayor v. WCAB (2024) 104 Cal. App. 5th 1297.)^[1]

On Nov. 5, 2024, the WCAB issued a significant panel decision, Reed v. County of San Bernardino, applying the time limits to act on a petition for reconsideration and explaining when a petition for reconsideration is appropriate.

It’s the October Rhino Round-Up!

October was packed with team-building events, industry conferences, and giving back at the Olive Crest fundraiser! From strengthening bonds to supporting children and families, it was a rewarding month for MS&A.

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, and Facebook. We'd love to have you attend one of our events!

MS&A had an amazing time at PIHRA's CELU 2024 Conference in Los Angeles last week! It was a fantastic opportunity to connect with so many industry professionals and exchange valuable insights.

Check out the highlights! 📸 Eric De Wames and Tara Fournier led the latest installment of their ongoing “Building Airplanes in Flight” session, where they explored the intersection of AI technology and employment law. The energy at the conference happy hour was incredible, and our MS&A booth was buzzing with engaging conversations.

Thanks to everyone who stopped by, attended our session, and joined us in celebrating this outstanding event!

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, and Facebook. We'd love to have you attend one of our events!

Medicare is a secondary payor. That is, it does not have primary payment responsibility for its beneficiaries when another entity is responsible for paying for medical care before Medicare. Workers' compensation is a primary payor for work-related illnesses or injuries. Medicare will not pay for a beneficiary's medical expenses when payment has been made or can reasonably be expected to be made by a workers' compensation insurer.

Medicare, however, may pay for medical services when the primary payor has not made or cannot reasonably be expected to make payment for them promptly. Those Medicare payments are referred to as “conditional payments,” because Medicare pays under the condition that it is reimbursed when the beneficiary gets a workers' compensation settlement, judgment, award or other payment. Medicare is required by statute to seek reimbursement for conditional payments related to the settlement.

The 2024 California legislative season is over. The Legislature had until Aug. 31, 2024, to pass bills, and Gov. Gavin Newsom had until Sept. 30, 2024, to sign or veto them. The bills signed by the governor take effect Jan. 1, 2025.

The 2024 legislative session was fairly quiet as it relates to the California workers' compensation process. Aside from the electronic signature provision, it is probably more notable for the bills that were vetoed than those signed into law.

It’s the September Rhino Round-Up!

September was a month to remember at MS&A! From an inspiring attorney retreat to celebrating excellence at the CLA Workers’ Compensation Awards Ceremony, we made unforgettable memories together. We also took time out for some fun at an Angel's baseball game, showcased our insights at industry conferences, and strengthened our bonds through exciting team-building events.

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, and Facebook. We'd love to have you attend one of our events!

What an unforgettable time at the MS&A 2024 Attorney Retreat in Irvine!

From September 20th-21st, our team came together for two days of growth, collaboration, and fun! We kicked things off with insightful presentations and breakout sessions, followed by moments to unwind with yoga, a cabana party, and even a karaoke night!

The connections made and the experiences shared remind us of the strength of our team and the bright future ahead!

Labor Code 4610(i)(1) normally requires a utilization review (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." But LC 4610(i)(3) requires an expedited review when the employee faces an "imminent and serious threat to his or her health, ... or the normal timeframe for the decision-making process ... would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function." In those situations, the UR decision must be made in a timely fashion "not to exceed 72 hours after receipt of the information reasonably necessary to make the determination."

What an amazing experience at the #CAJPA2024 Annual Conference!

The MS&A team had the privilege of connecting with many inspiring public agency risk professionals, exchanging insights, and learning from industry leaders. It's always a pleasure to be part of such a great community. Thank you to everyone who stopped by our booth and attended our sessions!

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, and Facebook. We'd love to have you attend one of our events!

It’s the August Rhino Round-Up!

August was an incredible month for MS&A, filled with fun, team spirit, and celebrations! We hit the lanes for some friendly competition at bowling events, showcased our skills on the green at a lively golf tournament, and came together to celebrate a baby shower for one of our team members.

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, and Facebook. We'd love to have you attend one of our events!

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 former Labor Code § 5909. That statute stated, "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.

Labor Code § 4664(c)(1) states, "The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662." The regions of the body for the purposes of the statute are:

It’s the July Rhino Round-Up!

From baseball games to summer mixers and educational events, July was a busy month for MS&A and we’re grateful for these opportunities to grow and connect with our community!

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, and Facebook. We'd love to have you attend one of our events!

Labor Code § 3600(a)(8) is an affirmative defense that bars a claim for compensation when the injury is "caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted." That defense was enacted in 1986 and originally barred an employee's injury "caused by the commission of a felonious act by the injured employee, for which he or she has been convicted." The statute was amended to its current form in 1993.

Two weeks ago, we reported on some exciting new reforms to the Private Attorneys General Act of 2004 (“PAGA”) that were beginning to take shape in the California Legislature. We are now happy to report that those changes have been formally adopted and approved!

These changes only apply to future PAGA lawsuits for which a notice was filed with the Labor and Workforce Development Agency (“LWDA”) after June 19, 2024. Pending PAGA lawsuits and ones filed based on LWDA notices that predate June 19, 2024 are not impacted. Still, the reforms provide employers with new tools to manage their PAGA exposure. Now that we have had the chance to review the text of “PAGA 2.0”, here are the biggest improvements and drawbacks we see coming down the pike.

It’s time for the June Rhino Round-Up!

June at MS&A was packed with excitement and learning! From the CCWC and SHRM24 conferences to the fun-filled AAWCP Game Night, Rainbow Risk brunch, and thrilling golf tournaments, we've had a blast connecting and growing together.

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!

Governor Newsom’s office announced Tuesday, June 18th, that much needed and long-awaited reform to the Private Attorneys General Act ("PAGA") is finally on the horizon! While we’re still waiting to see the exact text of the bill, here is what we expect from "PAGA 2.0" based on a release from the Governor’s office.

Under the commercial traveler rule, an employee traveling on the employer's business is regarded as acting within the course of employment during the entire period of his or her travel. Workers' compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort and safety of the employee. But the commercial traveler rule does not cover all of an employee's activities. Personal activity not contemplated by the employer might constitute a material departure from the course of employment. (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 652.)

In 2013, the WCAB held in Athens Administrators v. WCAB (Kite) that an injured worker's disabilities are not required to be combined using the Combined Values Chart (CVC). The WCAB explained that although the AMA guides favor the combined values method, "physicians may, under certain circumstances, employ a different method of determining impairment if they remain within the four corners of the AMA Guides."

For more than 10 years, Kite became shorthand for combining disabilities by simple addition. Although the case is not binding, such addition is a common method accepted for combining an injured worker's disabilities. Over the years, many cases have applied Kite, but none of the cases was binding nor did any fully elaborate on the circumstances when disabilities could be combined by addition, rather than by using the CVC. The cases also largely depended on how well the physicians explained their opinions.

It’s the May Rhino Round-Up!

We had a blast at the CAHR and CSIA Conferences, as well as the PARMA Spring Education event, connecting with industry leaders and sharing insights. One of the highlights? A fantastic happy hour at Rise Rooftop Lounge during the CAHR Conference, filled with great conversations and stunning views.

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!

Michael Sullivan & Associates LLP (MS&A) announced today that Richard “Jake” Jacobsmeyer has joined the firm in its Workers’ Compensation Practice. Prior to joining the firm, Mr. Jacobsmeyer was a partner at Shaw, Jacobsmeyer, Crain & Claffey.

“We’re delighted to welcome Jake to the firm,” said Megan Sullivan, Senior Partner at MS&A. “Jake's presence at MS&A significantly enhances the level of service we provide to our clients, as he is a brilliant attorney and educator. We are lucky to add his extensive experience to bolster the capabilities to our firm.”

What an amazing time at PIHRA's 2024 CAHR Conference! From co-hosting a vibrant happy hour with Lockton at Rise Rooftop Lounge, to our Managing Partner Eric De Wames leading an insightful session on the future of AI in HR, and our buzzing booth at the event, we loved every moment. Thanks to everyone who joined us!

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!

Labor Code § 3600(a)(7) establishes the initial physical aggressor defense. It explains that a claim is not compensable when the injury arises "out of an altercation in which the injured employee is the initial physical aggressor." That defense embodies the legislative intent to exclude from compensation those who introduce violence into the workplace.

The types of behavior that are barred under the statute were defined in the seminal case of Mathews v. WCAB (1972) 6 Cal. 3d 719, in which the Supreme Court explained that former LC 3600(g), now LC 3600(a)(7), applies when two conditions are present. One, the injury must "arise out of an altercation." Two, the injured employee must be the "initial physical aggressor" in the altercation.

Dive into the April Rhino Round-up! April was buzzing with activity as MS&A hit the ground running at CASBO, CalSHRM, and EWC conferences, not to mention the memorable moments at PIWC's crab feed!

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!

What an unforgettable time we had at the CalSHRM Conference in Sacramento last week! Whether at Eric and Tara's insightful Return to Work presentation, our lively happy hour at the Sheraton Grand, or the MS&A booth, it was wonderful to connect with all of you!

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!

Effective April 1, 2024, the minimum wage for many California fast-food workers increased from $16 to $20 an hour. The changes were brought by Assembly Bill (AB) 1228, which was signed by Gov. Gavin Newsom on Sept. 28, 2023. AB 1228 added Labor Code § 1474, § 1475 and § 1476. ^[1]

The change, of course, means that the average weekly wage (AWW) of employees — and, accordingly, the rates for indemnity payments — will increase. But the more poignant concern: Is there an increase for existing cases in which temporary disability is being paid out? After all, if a raise is expected and scheduled at the time of injury, that must be taken into account when establishing the AWW. Do existing claims need to be looked at now for a possible adjustment? The answer might well be yes.

Nearly one-quarter century ago, in Tenet/Centinela Hospital Medical Center v. WCAB (Rushing) (2000) 80 Cal. App. 4th 1041, the Court of Appeal held that when a treating physician has declared the employee's injury to be permanent and stationary, has released the employee to return to work and has prescribed no further doctor-involved treatment or visits, the employee did not have a right to change treating doctors just because future medical care was warranted. Instead, the court explained that the employee was required to comply with the provisions of California Code of Regulations, Title 8, § 9785(b), and Labor Code § 4061 and § 4062, to change primary treating doctors (PTPs).

When a party disputes an order, decision or award issued by a workers' compensation judge (WCJ), there are two options for appeal. Pursuant to Labor Code § 5900, a party may file a petition for reconsideration of a "final order, decision, or award made and filed by the appeals board or a workers' compensation judge." In contrast, LC 5310 states, "The appeals board may ... remove to itself, or transfer to a workers' compensation administrative law judge the proceedings on any claim." A petition for removal is the appropriate remedy for interim, nonfinal orders.

It’s time for the March Rhino Round-up! From industry conferences to bowling nights and crab feeds, 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 X. We'd love to have you attend one of our events!

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.

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.

It’s the February Rhino Round-up! Last month featured informative conferences, Valentine’s Day fun, and a glamorous gala event!

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!

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!

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.

PARMA's 2024 Annual Conference is coming up next week, and we're excited to see you there! Michael Sullivan & Associates is a proud participant of this year's conference as a speaker and exhibitor.

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.

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!

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.)

It’s the December Rhino Round-up! Last month was filled with camaraderie, laughter, and an unforgettable firm-wide holiday party!

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!

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.

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.

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!

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.

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.

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).

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.

It’s the September Rhino Round-up! Last month was filled with amazing events at MS&A, featuring football games, tiki cruises, and industry conferences!

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!

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.

MS&A had a blast at the CAJPA Fall Conference last week! Thanks to everyone who made it a memorable event and we’ll see you again next year!

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!

It's the August Rhino Round-up! From conferences to escape rooms and summer parties, August was a great month for connecting with clients and colleagues!

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!

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."

The WCIRB California's 2023 State of the System Report revealed that shares of self-insurance vary widely by industry and are relatively low in most cases.

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!

We had a blast at the AAWCP Nor-Cal Summer Mixer last Saturday! Check out these snapshots from an unforgettable evening of networking and fun!

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!

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]

Fascinating insights from WCIRB California's 2023 State of the System report! California CT claims were up between 2011 and 2019, primarily due to claims filed in the Los Angeles and San Diego areas. While 2020 saw a significant increase in claims filed in Los Angeles, the number of statewide CT claims returned to approximately pre-pandemic levels in 2021.

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!

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.

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.

The California Supreme Court just handed down its long-awaited decision in Adolf v. Uber Technologies, Inc., (“Uber”), and you are probably wondering how that ruling affects the arbitration agreements you have in place with your employees.

The short answer is: it doesn’t. Exhale!

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."

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.

📸 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!

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.

It is not uncommon for a defendant to overpay permanent disability (PD) benefits. An overpayment might occur for several reasons. The defendant might not receive the physician's report declaring the applicant permanent and stationary until long after the evaluation. Or a defendant simply might make a mistake and pay more PD than required.

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 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!

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 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!

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.

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.

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:

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.)

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.

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.

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:

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.

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.

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.

Michael Sullivan & Associates is happy to announce the opening of our 10th office, located in Redding, CA. You can find our newest office in the heart of downtown Redding, at 1300 West Street, Suite 210, Redding. You can reach the new office by phone at (530) 670-5550.

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.)

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.

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.

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 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.

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 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.

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.

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]

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.

The 2022 legislative season is over. The Legislature had until Aug 31, 2022 to pass bills, and Governor Gavin Newsom had until Sept. 30, 2022 to sign or veto bills. The bills signed by the Governor take effect on Jan. 1, 2023. Below is a list of bills affecting California workers' compensation.

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!

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)).

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!

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!

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!

VICA's annual education conference, held last Friday, was a resounding success! Michael Sullivan & Associates Partners Megan Sullivan and Serena Neves spoke at the event, exploring best practices for defending against a CT claim. We're already looking forward to next year!

AWCP's Summer Fun on the River event last Thursday was a resounding success! It was great to spend time with our valued clients, co-workers, and members of the Sacramento workers' compensation community.

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.

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.

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.

Thanks to everyone who joined us at Sutter Health Park for the Sacramento Rivercats game last Friday! We hope you all enjoyed the food, drinks, fireworks... and watching the Rivercats beat the Isotopes (again)!

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!

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.

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.

Last Friday MS&A threw a party at Drake's Barn in Sacramento, to celebrate Serena Neves' promotion to Managing Partner and show our appreciation for our amazing clients. It was an epic evening of food, drink, and socializing. It was wonderful to spend time with each other face-to-face (finally!) and enjoy the beautiful evening together!

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)).

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.

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.

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.

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."

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.

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.

A case currently pending in the Supreme Court of the United States could spell a big win for California employers this summer, allowing them to foreclose a wider range of group employee lawsuits using arbitration agreements.

On February 9, 2022, Governor Newsom signed into law a Covid Supplemental Paid Sick Leave (“SPSL”) which will become effective on February19 and will be retroactive to...

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:

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

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rule of Practice and Procedure to allow for remote hearings, electronic filings, and electronic service. The changes made permanent many of the temporary changes implemented by the 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.

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]

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 .

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.

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.

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.

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.

The Division of Workers' Compensation (DWC) has created a new fee schedule for medical-legal services. The California Code of Regulations, Title 8, 9793, 9794 and 9795 are being revised. The regulations are available on the DWC website.

Register to Attend a Webinar on This Topic — January 20, 2021 at 11 a.m. to 12 p.m.

Part 22: COVID-19 Update –
Vaccines: Employer Mandates and Compensability

Because of the COVID-19 pandemic, the WCAB district offices have stopped conducting in-person trials since March 16, 2020. Beginning May 4, 2020, the WCAB began hearing trials on the cases-in-chief via individually assigned judges’ conference lines.

Since March 2020, to protect the health and safety of staff and the community, the Division of Workers' Compensation (DWC) closed the district offices for in-person filing. The DWC has only allowed documents to be filed via EAMS, JET file or by mail.