California Workers’ Compensation: Year 2023 in Review

By Julius Young, Richard M. Jacobsmeyer, and Barry D. Bloom, Co-Editors-in-Chief, Herlick, California Workers’ Compensation Handbook

This 2024 edition is the 43rd edition of Herlick, California Workers’ Compensation Handbook.

The after-effects of the COVID epidemic are still evident in the California system. Since 2020, 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 now frequently take place over Zoom or other video platforms. Video and telephonic medical appointments became common, although in person treatment has seen a resurgence. Some QME and AME appointments continue to be done via telehealth.

For the last several years, most conferences and some hearings were conducted by the Appeals Board over the phone. More recently, in person trials have resumed at some boards.

Whether the changes wrought by the pandemic will be temporary or permanent is still unclear.

What follows is a recap of important legislative, regulatory and case law developments since last year’s edition.

I. Legislation

Legislation signed by Governor Newsom in 2023 included the following:

• AB 700 (Grayson) (establishes a California Firefighter Cancer Prevention and Research Program to be administered by the University of California)
• AB 336 (Cervantes) (requires contractors to certify their highest payroll class codes when renewing their contractor licenses and allows that information to be posted online)
• SB 553 (Cortese) (requires employer workplace violence prevention plans and allows bargaining representatives to file for a restraining order)
• SB 623 (Laird) (expands rebuttable PTSD presumption to additional categories of public safety personnel and postpones sunset of the PTSD presumption to January 1, 2029))
• AB 621 (Irwin) (allows spouse and children of specified workers and firefighters at Department of Forestry and Fire Protection killed in line of duty to receive both workers’ compensation death benefits and the Public Employees’ Retirement System special death benefit)
• SB 616 (Gonzalez) (increases the number of paid sick days available to specified employees under the Workplaces Healthy Families Act of 2014)

Governor Newsom vetoed a raft of workers’ compensation bills, including the following:

• AB 1213 (Ortega) (in the event of a workers’ successful IMR determination this bill would have exempted up to 90 days of temporary disability from the 104 week aggregate cap on indemnity)
• SB 391 (Blakespear) (skin cancer presumption for California Fish and Game and Parks workers)
• AB 1145 (Maienschein) (industrial PTSD presumption for certain state hospital and Department of Corrections workers)
• AB 699 (Weber) (skin cancer presumption for certain San Diego lifeguards

II. Regulations

Workers’ compensation system stakeholders always need to keep abreast of regulatory changes. In addition to periodic changes to the Medical Treatment Utilization Schedule and periodic adjustments to the Official Medical Fee Schedule, the DWC promulgated some rule changes as follows:

• QME telehealth regulations effective February 2, 2023:

https://www.dir.ca.gov/dwc/DWCPropRegs/2021/QME-Regulations/Index.htm

• Proposed QME process regulations were posted for public comments in 2023, but were not finalized by the time this Foreword went to press:

https://www.dir.ca.gov/dwc/DWCPropRegs/2023/QME/Index.htm

• Readers may wish to periodically check the DWC regulations webpage for updates on proposed and approved regulations:

https://www.dir.ca.gov/dwc/Laws_Regulations.htm

III. Case Developments

Some of the cases added to this edition of Herlick Handbook seem particularly noteworthy, including the following:

• California Capital Ins. Co. v. Employers Comp. Ins. Co (2023) 89 Cal. App. 5th 638, 88 Cal. Comp. Cases 339 [added to Ch. 3, § 3.15] (general liability insurer was not entitled to equitable contribution from a workers’ compensation and employers’ liability insurer)
• Castellanos v. State of California (2023) 89 Cal. App. 5th 131, 88 Cal. Comp. Cases 348 [added to Ch. 2, § 2.8] (court concludes that Prop 22, Bus. & Prof. Code §§ 7448-7467 does not intrude on the Legislature’s workers’ compensation authority and does not violate the single-subject rule, but declares that portions of the law are invalid on separation of powers grounds)
• Earley v. Workers’ Comp. Appeals Bd. (2023) 94 Cal. App. 5th 1, 88 Cal. Comp. Cases 769 [added to Ch. 15, § 15.4] (holding the Appeals Board lacked authority to grant reconsideration for further study without first deciding whether reconsideration was actually warranted pursuant to Labor Code § 5908.5 but a final ruling on the merits was not required within 60 days)
• Fox Sports 1 v. Workers’ Comp. Appeals Bd. (2023) 88 Cal. Comp. Cases 479 (writ den.) [added to Ch. 8, § 8.3] (defendant failed to provide sufficient evidence that unexplained fall over a railing causing catastrophic injury was barred by self-harm exemption of Labor Code § 3600(a)(5))
• Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal. 5th 993, 88 Cal. Comp Cases 667 [added to Ch. 12, § 12.11] (holding that the employer did not owe a duty of care to prevent spread of COVID-19 to employees’ household members because this would impose an excessive burden on society)
• Lin v. Kaiser Foundation Hospitals (2023) 88 Cal. App. 5th 712, 88 Cal. Comp. Cases 415 [added to Ch. 12, § 12.12] (employee had a triable issue on her discrimination claim under FEHA, Government Code § 12940)
• MacKenzie Electric., Inc. v. Workers’ Comp. Appeals Bd. (2023) 88 Cal. Comp. Cases 605 (writ den.) [added to Ch. 9, § 9.6] (evidence supported finding of serious and wilful misconduct under Labor Code § 4553)
• Martinez Marin v. Department of Transportation (2023) 88 Cal. App. 5th 529, 88 Cal. Comp. Cases 231 [added to Ch. 12, § 12.12] (Privette doctrine was absolute bar to holding the Department of Transportation liable in tort for death of a highway worker where retained control did not limit contractor’s delegated control over the work)
• Nunes v. State of California, Dept. of Motor Vehicles (June 22, 2023) (“Nunes I”) 88 Cal. Comp. Cases 741 (Appeals Board en banc) [added to Ch. 7, § 7.41[3] and Ch. 6, § 6.05] (holding that although vocational evidence may be used to address issues relevant to determination of permanent disability and apportionment, “vocational apportionment” is not a statutorily authorized form of apportionment)
• Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) (“Nunes II”) 88 Cal. Comp. Cases 894 (Appeals Board en banc) [added to Ch. 6, § 6.05] (Appeals Board rejects applicant’s contention that a vocational expert may substitute a competing theory of apportionment in place of an otherwise valid legal apportionment)
• Olson v. State of California (2023) 62 F.4th 1206, 88 Cal. Comp. Cases 429 [added to Ch. 2, § 2.8] (ride-share plaintiffs who sued to enjoin enforcement of A.B.5 plausibly alleged that A.B.5 violated the Equal Protection Clause for those in app-based ride-hailing and delivery services, but due process claims were properly dismissed)
• Perry v. Workers’ Comp Appeals Bd. (2023) 88 Cal. Comp Cases 584 (writ den.) [added to Ch. 14, § 14.19] (defendant’s petition to disqualify the worker’s compensation judge did not establish good cause for disqualification)
• Quinn v. LPL Financial LLC (2023) 91 Cal. App. 5th 370, 88 Cal. Comp. Cases 591 [added to Ch. 2, § 2.8] (excepting financial professionals under Labor Code § 2783(d)(1) from application of the ABC test to determine employment status did not violate equal protection)
• Schaan v. Jerry Thompson & Sons (2022) 2022 Cal. Wrk. Comp. P.D. LEXIS 264, 88 Cal. Comp. Cases 72 [added to Ch. 8, § 8.2] (applicant did not suffer “catastrophic injury” pursuant to Labor Code § 4660)
• State Compensation Insurance Fund v. Workers’ Comp. Appeals Bd. (Mills) (2023) 88 Cal. Comp. Cases 762 (writ den.) [added to Ch. 8, § 8.20] (applicant met burden of showing that employment stress was contributing cause of her stroke)
• Whitlach v. Premier Valley, Inc. (2022) 86 Cal. App. 5th 673 [added to Ch. 2, § 2.8] (real estate agent who signed an independent contractor agreement with a brokerage firm was an independent contractor and Labor Code § 2778(c)(1) exempted real estate licensees from application of the ABC employment test)

CAUTION

California workers’ comp law is very complex. Practitioners must navigate a maze of statutes, case law and extensive administrative regulations.

Important developments and issues to watch in 2024 include the following:

• Whether negotiations between labor and employer interests lead to a reform package that might include a benefit increase and some procedural reforms.
• Possible DWC regulatory activity on various topics, including MTUS updates, formulary updates, QME reg updates, potential changes to the Medical-Legal Fee Schedule, interpreter fees, and home health care fees.
• 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% with or without vocational expert evidence to establish the worker was not amenable to rehabilitation.
• Whether there is 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.
• After an Alameda County Superior Court ruling in August 2021 that Prop 22 (Business and Professions Code Sections 7448-7467) is unconstitutional, whether the appellate courts will reverse and instead find that Prop 22 is constitutional.
• How the WCAB and courts will define the employment relationship for workers’ compensation purposes, and what additional exemptions the legislature may make allow to shield certain employers and industries from application of the “ABC” employment test.
• How the California workers’ compensation system will deal with medical marijuana issues.
• How the 2021 revision of the Medical-Legal Fee Schedule affects the number of doctors serving as QMEs or AMEs, the costs of Medical-Legal evaluations in the system, and report quality.
• How treatment guidelines for chronic pain and opioid prescribing adopted in the last few years will affect the care of workers.
• Whether there will be changes to how the $120 million Supplemental Return to Work Fund is administered and legislative changes to the SIBTF.
• How the COVID-19 pandemic and the shift to telecommuting affects workers’ compensation claim frequency, claim severity, claims handling costs, workers’ compensation rates, and the culture of the workers’ compensation community generally.
• The degree to which future COVID-19 variants and outbreaks disrupt 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.
• Whether the legislature adopts additional presumptions and extends presumptions to certain groups of employees in private industry.
• Whether pressure from some stakeholders will result in regulatory or legislative change to California’s Medical Provider Networks.
• Whether stakeholders and researchers identify gender bias in the California system, and propose remedies for such gender bias.

KEEPING INFORMED

One good way to keep abreast of developments about California workers’ comp is to read the LexisNexis California Workers’ Compensation e-Newsletter (free signup at www.lexisnexis.com/wcnews).

The following blogs are also useful for keeping current on workers’ comp trends and issues:

WorkersCompZone, a blog written by Herlick Handbook co-editor Julius Young: https://www.boxerlaw.com/workerscompzone/

WCDefenseCA, a blog written by defense attorney Gregory Grinberg: http://wcdefenseca.com.

The California Division of Workers’ Compensation website, www.dir.ca.gov has subsections on regulations and current public forums.

An excellent overview of the California workers’ compensation system is the 2022 State of the System report prepared by the California Workers’ Compensation Rating Bureau (WCIRB):

https://www.wcirb.com/content/report-state-workers-compensation-insurance-system

Also useful as a system summary is the annual report prepared by the California Commission on Health, Safety and Workers’ Compensation (CHSWC):

https://www.dir.ca.gov/chswc/Reports/2021/CHSWC_AnnualReport2021.pdf

On the CHSWC website there are links to various current and past reports commissioned by CHSWC, listed by year and by topic:

https://www.dir.ca.gov/chswc/chswc.html

Studies and reports often affect policy decisions, so stakeholders ignore them at their peril. Here are a few notable 2022 and 2023 reports:

• A WCIRB 2023 report on California workers’ compensation losses and expenses:

https://www.wcirb.com/sites/default/files/documents/2022_ca_wc_losses_and_expenses_report_0.pdf

• A 2023 CWCI report on factors that drive IMR volume and outcomes:

https://cwci.org/document.php?file=5565.pdf

• Also from CWCI, a report of patterns in California workers’ compensation medical treatment:

https://cwci.org/document.php?file=5459.pdf

• From RAND, a 2022 report on COVID-19 in the California system:

https://www.dir.ca.gov/chswc/Reports/2022/RAND_RRA1430-1.pdf

• A November 2022 WCIRB geo study report on California regional differences:

https://www.wcirb.com/sites/default/files/files/WCIRB-Geo_Study-2022-AR.pdf

• From the WCIRB, a December 2022 report on medical characteristics of cumulative trauma claims:

https://www.wcirb.com/sites/default/files/documents/wcirb-ct_study-2022-ar.pdf

• The WCIRB November 2022 report on drivers of California claim duration:

https://www.wcirb.com/sites/default/files/documents/wcirb-claimdurationstudy-2022.pdf

• A 2021 Division of Workers’ Compensation report on 2020 Independent Medical Review data

https://www.dir.ca.gov/dwc/IMR/reports/IMR-Annual-Report.pdf

• A Division of Workers Compensation report on Independent Bill Review data:

https://www.dir.ca.gov/dwc/IBR/Reports/IBR-Report.pdf

• From the California Workers’ Compensation Institute, a March 2022 study on Independent Medical Review Trends:

https://www.cwci.org/document.php?file=5219.pdf

• From the California Workers’ Compensation Rating Bureau (WCIRB), a June 29, 2022 report on 2021 California workers’ compensation losses and expenses:

https://www.wcirb.com/sites/default/files/documents/2021_ca_wc_losses_and_expenses_report.pdf

• From the California Workers’ Compensation Insurance Rating Bureau, a study on the cost of COVID-19 claims, including “Long COVID”:

https://www.wcirb.com/sites/default/files/documents/wcirb-longcovid-impactreport-ar-2.pdf

• Also, from the WCIRB, a resource section on COVID-19 claims:

https://www.wcirb.com/covid-19

• From the California Workers’ Compensation Institute, a research paper on California Medical Provider Networks and medical treatment access issues:

https://www.cwci.org/document.php?file=4858.pdf

• A California Workers’ Compensation Institute analysis of proposals to shorten the time to determine claim compensability:

https://www.cwci.org/document.php?file=5345.pdf

• The California Workers Compensation Institute maintains an online COVID-19 claim database which can be found here:

https://www.cwci.org/CV19claims.html

• A California Workers’ Compensation Institute report on IMR volume during the first half of 2022:

https://www.cwci.org/press_release.html?id=918

• A WCIRB Quarterly Experience Report dated March 31, 2023:

https://www.wcirb.com/sites/default/files/documents/quarterlyexperiencereport-2023q1-ar1.pdf

• Keeping track of recent Appeals Board panel decisions can be very important. The best way to do this is to subscribe to the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis), which publishes brief summaries of Appeals Board panel decisions. It can be ordered at http://store.lexisnexis.com/.

Richard Jacobsmeyer
Julius Young
Barry Bloom

October 2023