MICHAEL SULLIVAN & ASSOCIATES BLOG

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.

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.

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.

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.)

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.