MICHAEL SULLIVAN & ASSOCIATES BLOG

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 Specifically, the WCAB announced the following decisions were rescinded: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.)

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.

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 LC 5804 states, "No award of compensation shall be rescinded, altered, or amended after five years from the date of injury ..."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.)

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.

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)).

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.

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.