MICHAEL SULLIVAN & ASSOCIATES BLOG

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!