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CHANGING OF THE GUARD
We, at Mullen and Filippi, would like to thank the former author of this bulletin, Jim Cotter, for his diligence and dedication in creating a useful and enjoyable summary and analysis of all relevant news in relation to the practice of workers’ compensation law. I will now take up the mantle and look forward to stepping into his shoes!
With the commemoration of Labor Day earlier this month, public health officials continue to implement public and private safety measures in the workplace as claims increase. Likewise, the Workers’ Compensation community continues to adjust to the ever-changing environment.
DWC ANNOUNCES RETURN OF IN-PERSON HEARINGS
On September 1, 2021, the Division of Workers’ Compensation (DWC) announced that in-person hearings, including trials, lien trials, expedited hearings, and Special Adjudication Unit (SAU) will resume as of October 1, 2021, in all DWC district offices except Eureka, which remains a virtual office, and satellite locations (Bishop, Maysville, Chico and Ukiah).
The DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences, SAU conferences, and lien conferences telephonically, via the individual workers’ compensation judges’ conference lines.
Be aware that the DWC’s hearing notices will not be updated until September 17, 2021. Thus, any hearing notice issued after September 17, 2021, for a trial on or after October 1, 2021, may state that the hearing will be telephonic though it will actually be in person. Beware!
Certainly, nearly all in the defense bar agree that in-person hearings and trials are preferable, especially when witness testimony is required, and witness credibility is in question. Further, returning to in-person hearings may improve efficiency and revive a much-needed sense of normalcy, which has remained elusive since the start of the pandemic. Still, others maintain that the DWC should implement a policy which would require an in-person hearing or trial only at the request of either party, or by order from the judge.
PROPOSITION 22 RULED UNCONSTITUTIONAL AT SUPERIOR COURT LEVEL
As noted in our November 2020 Bulletin, after the passage of California ballot measure Proposition 22, the most expensive proposition campaign in California history, with approximately $200 million spent by the major app-based service providers in the “gig economy,” voters decided that drivers working through the Uber and Lyft platforms should not be subject to the Dynamex ABC test codified by AB 5. This meant that Uber and Lyft drivers would likely remain outside of the workers’ compensation system as independent contractors should they be injured on the job.
However, in Castellanos v. State of California, Alameda Superior Court Judge Frank Roesch ruled that Proposition 22 is unconstitutional. The measure was struck down on grounds that it infringed on the Legislature’s plenary power to create a complete system of workers’ compensation laws. Thus, the Legislature has the power to determine which workers are or are not covered by the workers’ compensation system.
The Superior Court ruling will likely be appealed to the California Court of Appeal, and perhaps to the California Supreme Court. Indeed, Uber and other gig economy companies have confirmed their intention to immediately appeal the ruling.
In the interim, rideshare workers may file claims at the Workers’ Compensation Appeals Board, which would force the Board, in turn, to address the issue of the constitutionality of Proposition 22. Presumably, such claims are likely to gain little traction until a final decision is reached on appeal.
NEW CASE BRIEF AVAILABLE
This month, Leslie Tuxhorn, Associate Attorney in our Redding office, provides a playful article titled “And she’ll have fun, fun, fun till her daddy takes the T-bird away”, which asks the reader to imagine how colorful characters in the California workers’ compensation arena might be portrayed on screen and even lists a few TV shows and movies with themes in direct relation to our area of practice. The article is a must-read for anyone wishing to step away from the “crazy volumes of paper” we all see each day, while appreciating the positive nuances of our comparative roles in our practice and society.
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.