California Workers’ Compensation: 2020 Year in Review

By Julius Young, Esq., Richard Jacobsmeyer, Esq., and Barry Bloom

This 2021 edition is the 40th edition of Herlick, California Workers’ Compensation Handbook. [Note: All chapter references below are to Herlick Handbook.]

Since the 2020 edition of Herlick Handbook, the California system has seen many changes due to COVID-19. This past year, many workers’ compensation stakeholders have changed their operational models. Large numbers of insurance brokers, employer HR departments, insurance and TPA claims departments, attorneys, and other companies servicing the workers’ compensation industry shifted to a remote work model.

Depositions often took place over Zoom, GoToMeeting, or other video platforms. Video and telephonic medical appointments became common. In early 2020 many QME and AME appointments were canceled due to COVID, but many resumed after regulatory guidance from the DWC.

Conferences and hearings were conducted by the Appeals Board over the phone. In mid-2020 the Appeals Board began to use a video conferencing software called LifeSize for expedited hearings and trials.

1. Legislation

2020 California legislative battles centered around proposed COVID-19 presumptions and proposed changes to or exemptions from AB 5, the 2019 statute that adopted the “ABC” employment test that was used in the California Supreme Court Dynamex case.

Bills that were signed by Governor Newsom include the following:

SB 1159, effective September 17, 2020, which adds and amends several Labor Code sections to establish a rebuttable presumption for certain specified workers who contract COVID, and a presumption framework for other workers who contract COVID due to an outbreak as defined in the bill.

AB 685, effective January 1, 2021, which adds to and amends the Labor Code to require that under specified circumstances employers provide notification to employees when there have been workers who tested positive and requires certain notices to public health departments.

AB 1867, which under a newly added Labor Code § 248.1, mandates paid sick leave for certain workers who contract COVID, with a sunset on December 31, 2020.

AB 2257, effective September 4, 2020, which under Labor Code §§ 2775 to 2787 provides for exemptions from the application of the AB 5 “ABC” test for various professions and businesses.

AB 323, operative January 1, 2021, which under Labor Code § 2783 will provide newspaper carriers an exemption from the AB 5 “ABC” test.

AB 3012 amended Insurance Code § 1063.1 to expand “covered claims” to include: (1) benefits under the workers’ compensation law of state’s other than California if the injured worker is a California resident and not otherwise entitled to coverage from another organization similar to CIGA; (2) obligations for medical services provided by a medical facility owned by a state or federal agency; and (3) claims arising under a policy that has been statutorily allocated or assumed by a company that later becomes insolvent, if the claim would have been covered had the original company been liquidated.

Other signed bills which may be of interest to the workers’ comp community include the following:

SB 1383, which expands the right of certain workers to take job-protected leave to care for domestic partners, grandchildren, siblings and parents-in-law who have a serious health condition.

SB 1371, which makes non-substantive changes to multiple Labor Code sections.

AB 2043, which requires outreach efforts about COVID-19 to agricultural workers.

2. Regulations

The WCAB adopted new Rules of Practice and Procedure which went into effect January 1, 2020:

https://www.dir.ca.gov/wcab/WCABProposedRegulations/Rulemaking-August-2019/Final%20Rulemaking/WCAB-Rules-of-Practice-and-Procedure-Clean-Copy.pdf

There was some, but not a lot, of DWC regulatory activity since the 2020 edition.

On August 20, 2020, the DWC Administrative Director ordered evidence-based updates to the MTUS contained in Title 8, California Code of Regulations, sections 9792.23.6, 9792.23.8, 9792.23.11 and 9792.23.12, to be effective on September 21, 2020.

Those MTUS updates addressed treatment guidelines for interstitial lung disease, knee disorders, depressive disorders, and occupational asthma:

https://www.dir.ca.gov/dwc/DWCPropRegs/2020/MTUS-Evidence-Based-Updates-June-2020/MTUS-Evidence-Based-Update.htm

Emergency regulations adopted effective May 14, 2020 set forth a protocol for telehealth QME evaluations:

https://www.dir.ca.gov/dwc/DWCPropRegs/2020/QME-Regulations/QME_Regs.htm

At the time this Foreword went to press, the DWC had not yet finalized a revision to the Medical-Legal Fee Schedule. Revision of the fee schedule for QME evaluations has been a controversial topic for the past several years, and the DWC has unveiled several proposals which were later retracted before formal rulemaking was begun. Stakeholder groups met in 2019 and 2020 in an effort to seek a payment formula that would be widely acceptable. In 2020 the DWC unveiled another proposal and then held an online forum, resulting in an outpouring of opposition from some groups, particularly many QMEs.

A 2019 report from the California State Auditor was critical of the DWC administration of the QME system. Reacting to this, the Joint Legislative Audit Committee held a January 2020 hearing to explore the issue, but there was no apparent progress on addressing problems in the QME system by September 2020.

3. Case Developments

Some of the cases covered in this edition of Herlick Handbook seem particularly noteworthy, including the following Supreme Court and Court of Appeals cases:

• Gund v. County of Trinity (2020) 2020 Cal. LEXIS 5542 [added to Ch. 2, § 2.5] (Plaintiffs, responding to deputy sheriff’s phone call requesting them to check on the welfare of a neighbor, caused plaintiffs to be engaged in “active law enforcement service” pursuant to Labor Code § 3366, so that, by virtue of exclusive remedy rule, any compensation for injuries they sustained while so engaged were limited to workers’ compensation benefits.)
• Bingener v. City of Los Angeles (2019) 44 Cal. App. 5th 134 [added to Ch. 8 § 8.11] (Employer was entitled to summary judgment where no evidence supported claim that employer knew or ought to have known that a commuting employee who struck a pedestrian was impaired by job-injury related medications and where the accident happened in course of commute and did not come within exceptions to the going and coming rule.)
• California Ins. Guarantee Assn. v. San Diego County Schools Risk Management (2019) 41 Cal. App. 5th 640 [added to Ch. 13 § 13.4] (The W.C.A.B. had jurisdiction to make a finding that applicant sustained a cumulative injury, but the Board’s jurisdiction did not extend to contract based disputes between a self-insured employer and its excess carrier.)
• County of Santa Clara v. W.C.A.B. (Justice) (2020) 49 Cal. App. 5th 605 [added to Ch. 6 § 6.05[2]] (Hikida doctrine did not apply on facts of the case and apportionment not prohibited where evidence established underlying degenerative condition was partial cause of disability.)
• Dobbs v. TXI Riverside (2020) 804 Fed. Appx. 472 [added to Ch. 12, § 12.12] (Where plaintiff was hired by an independent contractor that was hired by another company, although the trial court correctly held that the Privette rule applied to the plaintiff’s negligence claim, the hirer of an independent contractor may be liable where it knows or should have known of a dangerous condition and fails to warn.)
• Meadowbrook Ins. Co. v. W.C.A.B. (2019) 42 Cal. App. 5th 432 [added to Ch. 4 § 4.18[2]] (Interpreter at worker medical appointments failed to request a second review under Labor Code § 4603.2(e)(2), and the bills were deemed paid, with the Appeals Board lacking jurisdiction.)
• Reynaud v. Technicolor Creative Servs. United States (2020) 46 Cal. App. 5th 1007 [added to Ch. 8, § 8.1] (Suit against former employer for negligence in failing to initiate green card process on behalf of worker did not come within the workers’ compensation exclusive remedy rule.)

Among the Appeals Board panel decisions and Court of Appeal writ denied cases, the following stood out:

• California Department of Corrections v. W.C.A.B. (Edward Boyajian) (2020) 85 Cal. Comp. Cases 203 (writ denied) [added to Ch. 8, § 8.27] (Exposure to biochemical agents was sufficient to bring applicant, a parole agent, within the meaning of Penal Code § 11417(a)(7) and the Labor Code § 3212.85 presumption of industrial causation of cancer.)
• City and County of San Francisco v. W.C.A.B. (Deonte Walker) (2020) 85 Cal. Comp. Cases 140 (writ denied) [added to Ch. 5, § 5.3] (Although temporary three-year employment contract expired before the period of temporary disability, where applicant demonstrated possibility that he would become a permanent employee and there was no evidence he would have been terminated, he was entitled to receive temporary disability.)
• Colamonico v. Secure Transportation (2019) 84 Cal. Comp. Cases 1059 (Appeals Board en banc) [added to Ch. 4, § 4.18[2]] (En banc setting forth the initial burden of proof for a medical-legal provider; here, the matter was remanded by the Appeals Board to the trial judge to conduct proceedings in which the lien claimant must demonstrate the reasonableness and necessity of the copy services at the time they were incurred.)
• Dennis v. State of California Department of Corrections (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion) [added to Ch. 1, § 1.01[2] and Ch. 16.1] (Invalidating AD Rule 10133.54 and finding that the Appeals Board rather than the DIR Administrative Director, has jurisdiction over SJDB disputes.)
• In re: COVID-19 State of Emergency En Banc-No.2 (2020) 85 Cal. Comp. Cases 299 (Appeals Board en banc opinion) [added to Ch.14, § 14.11] (In light of the COVID-19 state of emergency issued March 4, 2020 by the Governor, documents may be sent by e-mail directly to the Appeals Board and documents subject to a statutory time limit may be sent by e-mail directly to the district offices where the filing party could not otherwise e-file, JET file or file the document by mail.)
• In re: COVID-19 State of Emergency En Banc-No.3 (2020) 85 Cal. Comp. Cases 409 (Appeals Board en banc) [added to Ch.14, § 14.21] (Suspending the 20-day requirement for filing trial exhibits.)
• In re: COVID-19 State of Emergency En Banc-No.4 (2020) 85 Cal. Comp. Cases 573 (Appeals Board en banc) [added to Ch.1, § 1.01[2]] (Appeals Board rescinded its March 20, 2020 suspension of certain W.C.A.B. rules, with the recission to occur on September 1, 2020.)
• [Note: See also two more State of Emergency en bancs issued in late October 2020. See Robert Rassp's excellent summary of all emergency en bancs posted on the LexisNexis Legal Newsroom at https://www.lexisnexis.com/LegalNewsRoom/workers-compensation/b/recent-cases-news-trends-developments/posts/california-summaries-of-wcab-en-banc-covid-19-decisions]
• State of California, Department of Hospitals v. W.C.A.B. (Dores Ham) (2019) 84 Cal. Comp. Cases 1006 (writ denied) [added to Ch. 6, § 6.07[3]] (In split panel decision, majority rejected apportionment formulation by doctors, finding that doctors used an incorrect legal theory, confusing causation of injury with cause of disability.)
• St. John Knits v. W.C.A.B. (Maria Garcia) (2019) 84 Cal. Comp. Cases 846 (writ denied) [added to Ch. 9, § 9.12] (Panel affirmed finding of a violation of Labor Code § 132a where evidence demonstrated she was subject to disadvantages not visited on other employees because of the injury.)
• The Conco Companies v. W.C.A.B. (Rafael Sandoval) (2019) 84 Cal. Comp. Cases 1067 (writ denied) [added to Ch. 6, § 6.02[5]] (W.C.A.B. concluded applicant was entitled to use vocational evidence to rebut rating in a post 1/1/2013 case, rejecting an argument by defendant that changes to Labor Code § 4660.1 made vocational evidence irrelevant and inadmissible for post 1/1/2013 injuries.)
• Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal. Comp. Cases 576 (Appeals Board en banc) [added to Ch. 14, § 14.17] (Holding that prior and subsequent permanent disabilities are to be added to the extent they do not overlap to determine combined permanent disability under Labor Code § 4751, and the Combined Values Chart is to be used in rating multiple impairments and disabilities caused by a single injury, not in cases involving successive injuries.

4. Other System Developments

CAUTION

Each year we must caution readers that California workers’ compensation law is very complex. Practitioners must navigate a maze of statutes, case law and extensive administrative regulations.

Important developments and issues to watch as of late 2020, include the following:

• Possible regulatory activity on various topics, including interpreter fees, home health care, Medical-Legal billing, and pharmacy billing.
• Whether a workers’ compensation judge can determine that a worker is 100% disabled under Labor Code § 4662 where the rating would otherwise be less than 100% and there was no vocational evidence to establish the worker was not amenable to rehabilitation.
• Whether in 2021 there will be a long-rumored legislative push to change the law and rules pertaining to cumulative trauma claims.
• Whether apportionment to genetic factors will become common and whether there will be further challenges to the use of genetics as an apportionment factor.
• How the WCAB and courts will define the employment relationship in the context of “gig economy” jobs, whether the 2018 Supreme Court decision in Dynamex Operations West v. Superior Court will have implications for workers’ compensation cases, and whether California voters will adopt Prop 22, sponsored by Uber, Lyft and DoorDash. [Note: Prop. 22 passed since this article was written.]
• How the California workers’ compensation system will deal with medical marijuana issues.
• How any revised QME billing regulations affect the number of doctors serving as QMEs or AMEs and how changes to payments affect report quality.
• How treatment guidelines for chronic pain and opioid prescribing adopted in the last few years will affect the care of workers.
• How the Appeals Board and the California courts will define “catastrophic injury” for purposes of Labor Code § 4660.1.
• Staffing changes and appointments that may be made by the Newsom Administration.
• Whether there will be changes to how the $120 million Supplemental Return to Work Fund is administered.
• How the COVID-19 pandemic and the shift to telecommuting affects workers’ compensation claim frequency, claim severity, claims handling costs, and workers’ compensation rates.
• The degree to which COVID-19 disrupts operation of the California system and whether stakeholders creatively adapt to changes wrought by the pandemic.
• Whether the shift to telemedicine is temporary, or a long-term trend.
• Whether the DWC will move forward with a revision to its EAMS system.
• How the California Supreme Court will rule in Horne v. Ahearn Rentals, a case which was accepted for review in September 2020.

© Copyright 2020 LexisNexis. All rights reserved. Article excerpted from Herlick, California Workers’ Compensation Handbook, 2021 Edition.