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Navigating WCAB's Recent Order on Frivolous Petitions: What Employers Need to Know

Navigating WCAB's Recent Order on Frivolous Petitions: What Employers Need to Know

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." On the other hand, 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.

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.

Special Report: What Happens After COVID Presumptions Are Repealed?

Special Report: What Happens After COVID Presumptions Are Repealed?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.

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."

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.

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.

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.