MICHAEL SULLIVAN & ASSOCIATES BLOG

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.

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).

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.

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."

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]

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.