MICHAEL SULLIVAN & ASSOCIATES BLOG

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 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 Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, an employee still can rebut a scheduled rating by establishing that he or she was not amenable to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.

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.

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.)

Labor Code 4616.3(c) establishes a process that allows injured employees to obtain second and third opinions from physicians within a medical provider network. It states, "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

Per LC 4616.4(b), "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request an MPN independent medical review regarding the disputed treatment or diagnostic service still in dispute ... in accordance with Section 4616.3." That's referred to as an MPN IMR.

The Division of Workers' Compensation (DWC) revised regulations related to medical-legal evaluations effective Feb. 2, 2023. The regulations make changes to the rules for scheduling QME examinations and permanently adopt regulations allowing remote medical-legal evaluations. Specifically, the regulations make these changes to the medical-legal process: