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January was named after the Roman god Janus, known as the protector of gates and doorways, who fittingly represented new beginnings. As we reflect on last year and embrace the changes that came along with it, we look forward to what the future holds. What is clear is that the opening months of 2022 will be busy, albeit mostly remote.
DWC ANNOUNCES RETURN TO REMOTE HEARINGS
Earlier this month, the Division of Workers’ Compensation (DWC) announced that as of January 12, 2022, all hearings will be held remotely until further notice. Thus, all trials, lien trials, expedited hearings and Special Adjudication Unit (SAU) trials will be held telephonically. Further, all mandatory settlement conferences, priority conferences, status conferences, SAU conferences and lien conferences will continue to be held on the individually assigned workers’ compensation judges’ (WCJ) conference lines.
Due to the recent surge in COVID-19 cases resulting from the Omicron variant, the DWC states that a pause of in-person appearances is necessary at this time. The pause will remain in effect through the end of this month and will be re-evaluated by the DWC at that time. Parties should be aware that as of January 12, 2022, all trials, expedited hearings, lien trials or SAU trials will be heard telephonically, through the assigned WCJ’s individual conference lines.
WCAB ISSUES FINAL RULES EFFECTIVE JANUARY 1, 2022
The Workers’ Compensation Appeals Board recently adopted its final rules on practice and procedure, which came into effect on January 1, 2022.
The purpose of the final rules is to formalize the processes for virtual hearings, electronic filing and electronic service in response to the COVID-19 pandemic. The WCAB implemented several new rules in relation to noticing and objecting to remote hearings, appearances and witness testimony.
Pursuant to Rule 10815, any matter may be set for a remote hearing. Any party may object to the remote hearing by filing a written objection after notice is received that the hearing will be conducted remotely. After the objection is filed, the presiding workers’ compensation judge of the district office having venue may set the issue of whether the hearing will be held remotely for hearing. If the presiding judge of the district office having venue takes no action on the objection prior to the hearing, the issue will be deemed deferred as an issue for the hearing before the assigned workers’ compensation judge.
Rule 10816 states that if a party intends to appear electronically at any hearing, they shall file a petition showing good cause pursuant to Rule 10510. For any hearing that is conducted electronically, pursuant to Rule 10815, all appearances will be presumed to be electronic appearances, with no petition required, unless otherwise requested, ordered, or allowed.
Pursuant to Rule 10817, if a witness intends to testify remotely, a petition showing good cause shall be filed pursuant to Rule 10510 before the hearing and shall identify the witness’s full legal name and contact information. For any hearing that is conducted remotely pursuant to Rule 10815, all testimony will be presumed to be electronic testimony with no petition filed, unless otherwise requested, ordered, or allowed.
The Board also proposed new definitions for “Appearance”, “Hearing,” and “Testimony” and revised existing rules to facilitate electronic hearings. Further, the Board added new definitions for “Electronic,” “Filing,” and “Service,” and revised existing rules regarding filing and service, to facilitate expanded rules which allow electronic filing and service.
COURT OF APPEALS HOLDS THAT EXCLUSIVE REMEDY DOCTRINE DOES NOT BAR NEGLIGENCE CLAIM FOR COVID-19 DEATH
In See’s Candies, Inc. v. Superior Court 2021 Cal. App. LEXIS 1076, the Second Appellate District held that the derivative injury doctrine does not shield an employer from liability in a wrongful death action for negligently exposing an employee to COVID-19, which resulted in the death of the employee’s spouse.
The Plaintiff, Mrs. Matilde Ek (hereinafter, Mrs. Ek) alleged that she contracted COVID-19 in the course and scope of her employment, while working on a candy assembly and packing line in close contact with other employees. Her husband, Mr. Arturo Ek, cared for her while she convalesced at home before he subsequently contracted the virus himself. Mr. Ek sadly died from COVID-19 on April 20, 2020.
Mrs. Ek brought a survival action as successor in interest to Mr. Ek for wrongful death, general negligence and premises liability. She alleged that See’s Candies failed to implement adequate safety measures to mitigate her exposure to COVID-19. The lawsuit alleges that the employer knew or should have known that its negligent acts would increase the risk of exposure for its employees, who would in turn transmit the virus to family members.
Defendants, See’s Candies, Inc. and See’s Candy Shops (hereinafter, See’s Candies) filed a demurrer, arguing for dismissal based on the derivative injury rule, which is a theory that workers’ compensation exclusivity applies to all claims that are collateral or derive from a compensable industrial injury. In support of its position, See’s Candies argued that the derivative injury doctrine applied, because Ms. Ek could not state a claim for her husband’s death, but for her own occupational injury.
The trial court overruled the demurrer, stating that any injury to Mrs. Ek was “irrelevant” to plaintiffs’ claims, because “that injury is not the injury upon which Plaintiffs sue.” Rather, it was Mr. Ek’s “exposure to the COVID-19 brought home by Mrs. Ek that Plaintiffs claim caused Plaintiffs’ injury.” The trial court continued, “Mrs. Ek did not have to become ill herself for Plaintiffs’ injury to occur, and, so, contrary to Defendants’ position, Plaintiffs do not allege that their injuries would not have existed in the absence of the workplace injury to Mrs. Ek. Accordingly, Plaintiffs’ claimed injuries are not collateral to nor derivative of Mrs. Ek’s becoming ill with COVID-19. Were Plaintiffs alleging that their injuries stemmed from Mrs. Ek’s illness, say, because they lost income or missed out on Mrs. Ek’s companionship while she was sick with the COVID-19 she contracted at work, a different outcome would result.”
See’s Candies filed a Petition for Writ of Mandate with the Second District Court of Appeal to direct the trial court to vacate the order overruling their demurrer. A coalition of employers filed an amicus curiae, claiming that the court misunderstood the derivative injury rule and that as a result of the court’s decision, “a large swath of COVID-related claims stemming from workplace conduct would be placed outside the scope of the workers’ compensation system.”
The appeals court stated that See’s Candies’ arguments that the derivative injury doctrine bars Mrs. Ek’s lawsuit relies primarily on two sentences from the California Supreme Court decision in Snyder v. Michael’s Stores, Inc. 16, Cal.4th 991, 1000. In that case, the high court held that “the derivative injury rule governs cases in which ‘the third party cause of action [is] derivative of the employee injury in the purest sense: It simply would not have existed in the absence of injury to the employee.’ [Citation.]” Second, “[T]he rule applies when the plaintiff, in order to state a cause of action, must allege injury to another person—the employee.” The Second District Court of Appeal said that “[w]hile these two sentences from Snyder in isolation provide fodder for defendants’ interpretation, in the full context of the Snyder opinion defendants’ contention is not persuasive. Accepting for purposes of this writ proceeding that Mrs. Ek’s contraction of a virus, without more, constitutes a cognizable WCA injury, defendants’ contention that any injury caused by an employee injury necessarily falls within the derivative injury doctrine is inconsistent with other language in Snyder as well its analysis of case law establishing the boundaries of the doctrine.”
The appeals court questioned whether Mr. Ek’s injury necessarily was caused by an injury to Mrs. Ek, noting that “[i]t is well known that people may transmit viruses, including the virus that causes COVID-19, before they themselves develop symptoms … Arguably, then, viral transmission does not depend upon, and therefore under defendants’ analytic model, is not caused by, any injury to the transmitting party. The transmitting party may indeed suffer ill effects, as Mrs. Ek allegedly did, but those effects are not themselves the but-for cause of the viral transmission to another.”
The appeals court did not address “whether defendants owe a duty to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work”, noting that the analysis would require a public policy assessment “worthy of exploration.”
See’s Candies will now have to defend the civil lawsuit filed by Mrs. Ek. Depending on the outcome, this case could open the door to a vast amount of litigation against employers who fail to implement adequate safety measures in the workplace to protect their employees against exposure to COVID-19.
DWC ANNOUNCES MILEAGE RATE INCREASES
Last month, the DWC announced an increased mileage reimbursement rate for medical and medical-legal travel expenses to 58.5 cents per mile effective for travel on or after January 1, 2022, regardless of the date of injury.
IRS bulletin IR-2021-251, dated December 17, 2021, announced the rate increase.
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.