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On October 11, 2021, we celebrated Indigenous Peoples’ Day, recognizing the timeless contributions and resilience of American Indians, Alaska Natives, and Native Hawaiians across generations. Mullen and Filippi is pleased to recognize and support all indigenous workers, as we appreciate the diversity that each culture brings to the workers’ compensation community and to our nation.
Halloween is also around the corner and we encourage you all to pick out your costumes and indulge in eating an unhealthy amount of candy without the risk of judgement. Of course, we are here to assist with even the most terrifying claims.
SUPERIOR COURT RULING FINDING PROPOSITION 22 UNCONSTITUTIONAL IS APPEALED
After the passage of California ballot measure 22, 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, on the grounds that it infringed on the Legislature’s plenary power to create a complete system of workers’ compensation laws. The Protect App-Based Drivers and Services Coalition, the main proponent supporting Prop. 22, have appealed Judge Roesch’s ruling to the California Court of Appeals. As such, any claims filed by rideshare workers at the WCAB are likely to gain little traction until a final decision is reached on appeal.
DWC WITHDRAWS NEWSLINE ANNOUNCING 2022 TEMPORARY TOTAL DISABILITY RATES REMAIN UNCHANGED
On September 15, 2021, the Division of Workers’ Compensation (DWC) announced that the 2022 minimum and maximum temporary total disability (TTD) rates would remain unchanged. In its announcement, the DWC noted that the minimum TTD rate of $203.44 and the maximum TTD rate of $1,356.31 would remain in effect. However, on September 23, 2021, the DWC withdrew the announcement that the 2022 minimum and maximum TTD rates would remain unchanged based on a finding that the State Average Weekly Wage data, which is posted by the U.S. Department of Labor (DOL), was preliminary and incomplete. The DWC will issue an announcement with the correct 2022 TTD rates when the complete data is posted by the DOL.
DWC EMERGENCY REGULATIONS FOR MEDICAL-LEGAL EVALUATIONS REMAIN IN EFFECT THROUGH JANUARY 11, 2022
On October 4, 2021, the DWC announced that emergency regulations 36.7 and 46.2 will remain in effect until January 11, 2022. Regulations 36.7 and 46.2 allow, among other things, the party with the right to schedule a panel QME appointment to waive the right to a replacement panel QME list if the appointment is accepted no more than 120 days after the date of the party’s initial request. The DWC noted that this is the final re-adoption in accordance with Government Code section 11346.1(h).
GOVERNOR NEWSOM VETOES SB 788
On September 28, 2021, Governor Newsom vetoed Senate Bill (SB)788, which would preclude a physician from apportioning to risk factors such as race, religion, gender, marital status, and other characteristics. Governor Newsom noted that current law prohibits a physician from apportioning a percentage of impairment based on gender, race, and other personal characteristics of the injured worker and requires physicians to apportion disability based on the employee’s own medical history and medical evidence. Governor Newsom stated that “[w]hile I support efforts to combat bias within the medial profession, this bill creates confusion with well-settled law, which is likely to result in increased litigation and subsequent delays to much-needed benefits to workers. Ongoing efforts by the Division of Workers’ Compensation to implement mandatory continuing education of medical-legal evaluators related to current anti-bias laws and apportionment training is better suited to achieve the intent of this bill.”
The passage of SB 788 would likely have led to increased litigation with respect to disputes relating to apportionment in psychiatric and internal medicine claims, particularly as they relate to issues of genetics and heritability. However, proponents of SB 788, including the California Applicants’ Attorneys Association, are disappointed with the veto, given that SB 788 was approved without opposition in the California Senate and California Assembly.
NEW CASE BRIEF AVAILABLE
This month Rachel Fortner, Associate Attorney in our Santa Rosa office, authored an article entitled “And be a simple kind of man …” Seizure Cases in the Modern World, in which she provides an in-depth analysis of the Moss and Gideon decisions, which provide that work related injuries caused by an idiopathic seizure of the employee will be found to arise out of and in the course of employment even when the employment does not pose a unique danger to the injured worker. Ms. Fortner correctly notes the relevance of these cases to claims involving injuries to employees working from home.