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Counseling employers and insurance carriers throughout California.

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Bulletin Archives

TRANSITIONS

Though the health statistics indicate that COVID is still spreading at an alarming rate, many counties in California continue looking to new and creative ways to allow people to conduct business while also reflecting public health concerns.  Long cherished traditions and norms in countless industries are being traded by necessity for interesting and new operating procedures.  Restaurants are experimenting with expanded outdoor seating, drive-through flu vaccinations are now offered by most hospitals, and more and more households are having groceries delivered.

Many of the larger companies in tech and other industries are finding that much of their work can be accomplished without loss of fidelity with workers at home operating remotely.  In high rent markets like the Bay Area, this has led many businesses to question whether leasing expensive office space in skyline defining skyrises is necessary, and many workers are engaging in an arbitrage of sorts, moving back to lower rent markets where their competitive California salaries last a little longer each month.

In the workers’ compensation field, the WCAB has been holding remote telephonic hearings and attorneys have been taking remote depositions.  Many attorneys have noted they are more productive without losing time traveling to the Board, and carriers must surely appreciate the extreme reduction in travel time billing.

With several vaccines in the works, and many now showing great promise to curb the spread of COVID and return us to a world of crowded malls and stadiums, a question arises as to what, if anything, we have learned from this ordeal, and what, if anything, we wish to keep from our new approach.  It isn’t entirely accurate to call something temporary when it’s been standard operating procedure for most of a calendar year.  When this pestilence has cleared from the land, will we be hurrying back to supermarkets in place of online grocery shopping?  Will attorneys wish to cede the option of taking a deposition while wearing pajama bottoms? No one at this firm is wearing fluffy slippers during a deposition, I assure you, but I’ve heard rumors.  Will we collectively decide that some of the kindness and patience we’ve had with each other as we figured out new approaches on the fly is worth retaining?

We have certainly seen that much of the “standard” way of doing things was less about necessity than tradition.  Now that we’ve seen alternative approaches, what will we keep from them when public safety no longer necessitates them?  An open question, but certainly one many industries will be grappling with in the months and years to come.

WCAB REINSTATES RULES SUSPENDED DURING HEIGHT OF COVID CRISIS

The California Workers’ Compensation Appeals Board on 10/27/2020 issued two en banc decisions reinstating rules relating to trial procedure and lien claims respectively.

In Case No. MISC. NO. 264 the Appeals Board reinstated WCAB Rules 10755, 10756, and 10888, which were suspended back in March of 2020.  Rule 10755 allows judges the discretion to dismiss an Application or close discovery and set a case for trial in the event an applicant or defendant fails to appear at a Mandatory Settlement Conference.  Rule 10756 allows judges the discretion to dismiss an Application or to issue a decision on the evidence in the event that an applicant or defendant fails to appear at a Trial.  Rule 10888, in pertinent part, allows judges the discretion to dismiss a lien if a lien claimant fails to appear at a hearing.  The reinstatement takes effect immediately.

On the same day the WCAB, in Case No. MISC. NO. 265., reinstated WCAB Rules 10620 and 10670(b)(3) which require parties to file documentary trial exhibits within 20 days of trial and allow judges to decline to receive evidence not filed within 20 days of trial, respectively.  Those rules will be effective as of 12/1/2020 and will apply to all trials held after that date.

The full text of the decisions can be found here:  https://www.dir.ca.gov/wcab/wcab_enbanc.htm

COURT RULES ON ALLEGED EXCEPTIONS TO THE EXCLUSIVE REMEDY RULE IN COVID CLAIM

In the recent case of Brooks v. Corecivic of Tennesee LLC (2020) 85 CCC 842, the U.S. District Court for the Southern District of California on 9/4/2020 ruled in favor of a defendant asserting the exclusive remedy rule in the context of a case arising out of an employer’s handling of the coronavirus.  The plaintiff, who was employed by a correctional facility, had sought remedies outside of the workers’ compensation system arising out of the employer’s failure to properly protect its employees from COVID-19, alleging negligent supervision and intentional infliction of emotional distress.  The defendant moved to dismiss those causes of action as barred by the exclusive remedy rule, since the alleged injury occurred at work.

While the facts of the claim concerned the “novel” coronavirus, the court’s reasoning followed the long established rule that workers’ compensation is the exclusive remedy except when an employer’s conduct is outside of  that contemplated by the “compensation bargain.”  As part of the complaint, the plaintiff in Brooks claimed the employer caused harm by negligent supervision and intentionally inflicted emotional distress by failing to protect its employees from COVID-19.  The court in agreeing with defendants that worker’s compensation was the exclusive remedy, reasoned that while pandemics are not common, response protocols for dealing with pandemics and other catastrophic events fall within the obligation of employers to provide a safe and healthful workplace, and so are contemplated by the compensation bargain.

Consequently, the court found that workers’ compensation is the exclusive remedy for any harm caused by the employer’s actions in responding to COVID-19.  The court also ruled on a motion to dismiss a wrongful constructive termination cause of action, though the defendant had only raised the issue of whether plaintiff had established the elements of that cause of action and did not comment on the exclusive remedy rule as to that portion of the claim.

PROPOSITION 22 PASSES, UBER AND LYFT DRIVERS NOW INDEPENDENT CONTRACTORS BY LAW

After the dust cleared in the most expensive proposition campaign in California history, with around $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.  The proposition will require a 7/8 majority in each chamber of the California State Legislature to amend the law, and so it is likely to remain law unless it is repealed by a separate proposition.  This means that Uber and Lyft drivers will, for the foreseeable future, likely remain outside of the workers’ compensation system as independent contractors should they be injured while on the job.

NEW CASE BRIEFS AVAILABLE

Justine Barraza, an Associate Attorney in our Riverside Office, has penned an essential summary of the recent developments in apportionment case law starting with Labor Code 4663 and 4664 and moving through all of the recent major cases addressing the topic.  The brief is an essential read for practitioners in workers’ compensation, and Ms. Barraza provides an in-depth discussion of several issues that may eventually be headed to the California Supreme Court.

The article discusses landmark apportionment cases such as  Hikida, Justice and Durazo. Ms. Barraza ably lays out the various shades of gray parties must contend with in arguing apportionment, despite the seemingly black letter law set forth by Labor Code 4663.  You can read it on our website here.