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By Julius Young, Richard Jacobsmeyer, Barry Bloom, Editors-in-Chief for Herlick, California Workers’ Compensation Handbook
[Note: This article is excerpted from the upcoming 2025 edition of Herlick, California Workers’ Compensation Handbook. Sections below refer to the 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 are just temporary or permanent is still unclear.
The AI revolution is starting to come to workers’ compensation. Some stakeholders are now using AI software for tasks such as claim triage, legal research, medical bill processing, medical report review and analysis, legal bill review, and physical therapy care management. Various vendors are touting how AI helps with their software.
What follows is a recap of important legislative, regulatory and case law developments since the 2024 edition.
I. Legislation
Legislation signed by Governor Newsom in 2024 included the following:
Governor Newsom vetoed the following workers’ compensation bills:
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:
Readers are advised 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:
Supreme Court
Castellanos v. State of California, S279622, 2024 Cal. LEXIS 3981 (July 25, 2024) [see § 2.8] (Business and Professions Code section 7451 enacted by voters in 2020 as Prop 22 held not to conflict with article XIV, section 4 of the California Constitution)
Court of Appeal
Perez v. Galt Joint Union Elementary Sch. Dist. (2023) 96 Cal. App. 5th 150, 314 Cal. Rptr. 3d 194, 88 Cal. Comp. Cases 937 [see § 2.5] (school district volunteer injured at school event was an employee under a resolution passed under Labor Code § 3364.5, making workers’ compensation the exclusive remedy)
Velasquez v. Workers' Compensation Appeals Board (2023) 97 Cal. App. 5th 844, 315 Cal. Rptr. 3d 828, 88 Cal. Comp. Cases 1137 [see § 2.5] (applicant who was injured in Salvation Army warehouse while participating in a residential program as a condition of probation was not an employee of Salvation Army under Labor Code §3301, but remanded for further proceeding on whether he was employee of the County)
Jones v. Regents of Univ. of Cal. (2023) 97 Cal. App. 5th 502, 315 Cal. Rptr. 3d 530, 88 Cal. Comp. Cases 1053 [see § 8.11] (UC employee injured in bike accident on campus while on way to her home was within course of her employment based on the premises line rule, thus barring her civil tort claim)
3 Stonedeggs, Inc. v. Workers' Comp. Appeals Bd. (2024) 101 Cal.App.5th 1136, 321 Cal. Rptr. 3d 68, 89 Cal. Comp. Cases 417 [see § 8.14] (worker’s auto accident injury while off work and away from a remote fire base camp arose out of employment and was held compensable under the commercial traveler and personal comfort doctrines)
CBRE v. Superior Court (2024) 102 Cal. App. 5th 639, 321 Cal. Rptr. 3d 697, 89 Cal. Comp. Cases 528, modified by, rehearing denied, 2024 Cal. App. LEXIS 419 (Cal. App. 4th Dist., June 28, 2024) [see § 12.12] (the retained control exception to the Privette doctrine did not apply)
Bowen v. Burns & McDonnell Engineering Company, Inc. (2024) 88 Cal.App.5th 529, 89 Cal. Comp. Cases 641 [see § 12.12] (employee failed to raise a triable issue of material fact as to whether the retained control exception to the Privette doctrine applied)
Chavez v. Alco Harvesting, LLC (2024) 102 Cal. App. 5th 866, 89 Cal. Comp. Cases 615 [see § 12.11] (civil complaint against employer alleging a worker died of COVID complications pleaded sufficient facts under the fraudulent concealment exception to workers’ compensation exclusivity)
Vann v. City and County of San Francisco (2023) 97 Cal. App. 5th 1013, 316 Cal. Rptr. 3d 105, 89 Cal. Comp. Cases 39 [see § 12.10] (San Francisco firefighter injured while responding to an emergency was barred from maintaining a personal injury action against both the City of San Francisco and a bus driver who was employed by another unit of the same municipality)
Zurich American Insurance Co. v. Workers' Comp. Appeals Bd. (2023) 97 Cal. App. 5th 1213, 316 Cal. Rptr. 3d 264, 89 Cal. Comp. Cases 1 [see § 15.4] (holding the WCAB acted in excess of its jurisdiction in granting a petition for reconsideration of an arbitrator’s ruling after the 45 day jurisdictional deadline)
Yalung v. State of California (2023) 98 Cal. App. 5th 71, 316 Cal. Rptr. 3d 349, 89 Cal. Comp. Cases 57 [see § 2.5] (where an IHSS provider ran a stop sign and injured multiple parties in another vehicle, the appellate court held that the IHSS statutes were incompatible with a finding of joint employment nor was the State of California the IHSS provider’s employer)
U.S. Court of Appeals, Ninth Circuit
Olson v. State of California (9th Cir. 2024) 104 F.4th 66, 89 Cal. Comp. Cases 643 [see § 2.8] (holding that Prop 22’s differential treatment of app-based work arrangements for transportation and delivery workers survived rational basis review under the U.S. and California Constitutions)
Kuciemba v. Victory Woodworks, Inc. (Ninth Circuit 2023) 74 F.4th 1039, 88 Cal. Comp. Cases 792 [see § 12.11] (United States Court of Appeals for the Ninth Circuit affirmed the district court’s order dismissing civil complaint filed by wife of worker who contracted COVID that was allegedly contracted at husband’s workplace and then transmitted to the plaintiff wife)
U.S. District Court
California Trucking Association v. Bonta 2024 U.S. Dist. LEXIS 56081 (S.D. Cal., March 15, 2024) [see § 2.8] (Federal District Court denied motor carrier motions for preliminary injunction enjoining enforcement of the “ABC”test, rejecting argument that AB5 was preempted by the Federal Aviation Administration Act of 1994 and an unconstitutional violation of the commerce clause and equal protection)
WCAB En Banc Decisions
Vigil v. County of Kern (2024) 89 Cal. Comp. Cases 686 (Appeals Board en banc) [see § 6.02] (the Appeals Board clarifies the methods of rebutting the Combined Values Chart)
Ledezma v. Kareem Cart Commissary and Mfg. (2024) 89 Cal. Comp. Cases 462 (Appeals Board en banc opinion), costs and fees proceeding at, sanctions allowed by, remanded by Ledezma v. Commissary, 2024 Cal. Wrk. Comp. LEXIS 19 (Cal. Workers' Comp. App. Bd., May 16, 2024); Gonzalez v. The Bicycle Casino (2024) 89 Cal. Comp. Cases 658 (Appeals Board en banc opinion); and Hidalgo v. Roman Catholic Archbishop (2024) 89 Cal. Comp. Cases 671 (Appeals Board en banc opinion) [see § 14.42] (the Appeals Board ordered sanctions and costs against applicant counsel for bad faith and frivolous conduct in disrupting and delaying proceedings)
WCAB Writ Denieds
Garcia v. Workers' Comp. Appeals Board (2024) 89 Cal. Comp. Cases 212 (writ den.) [see § 2.5] (inmate services rendered were held voluntary rather than compulsory and inmate held to be employee under the circumstances)
Ross Stores v. Workers' Comp. Appeals Bd. (Herrera) (2024) 89 Cal. Comp. Cases 483 (writ den.) [see § 8.17] (retail clerk injured at work premises immediately after work shift while taking advantage of employer-sponsored discount was in course of employment under personal comfort doctrine)
4Leaf, Inc. v. Workers' Comp. Appeals Bd. (Sanchez) (2023) 88 Cal. Comp. Cases 1164 (writ den.) [see § 8.22] (applicant met burden of proving industrial causation of COVID infection)
Sabert Corporation v. Workers’ Comp. Appeals Bd. (Vasquez) (2024) 89 Cal. Comp. Cases 489 (writ den.) [see § 9.6] (applicant’s amputation was found the result of employer’s serious and willful violation of safety procedures)
The Cincinnati Reds, LLC v. Workers' Comp. Appeals Board (Fonceca) (2024) 89 Cal. Comp. Cases 698 (writ den.) [see § 13.2] (WCAB had personal jurisdiction over the Cincinnati Reds based on certain contacts even though applicant did not actually play ball in California for the team)
Significant Panel Decision
Ja'Chim Scheuing v. Lawrence Livermore National Laboratory (2024) 89 Cal. Comp. Cases 325 (Appeals Board significant panel decision) [see § 15.4] (the Appeals Board discussed its approach to cases where a petition for reconsideration is timely filed but the case is not timely received by the Appeals Board)
CAUTION
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 in 2025 include the following:
KEEPING INFORMED
One good way to keep abreast of developments about California workers’ compensation is to read the LexisNexis California Workers’ Compensation e-Newsletter (free signup at www.lexisnexis.com/wcnews).
WorkersCompZone, a blog written by Herlick Handbook co-editor Julius Young, covers important case and legislative developments: https://www.boxerlaw.com/workerscompzone/
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 2024 State of the System report prepared by the California Workers’ Compensation Rating Bureau (WCIRB):
https://www.wcirb.com/sites/default/files/2024-08/wcirb_2024_report_on_the_state_of_the_california_workers_compensation_insurance_system-2024-07-17.pdf
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/2023/CHSWC_AnnualReport2023.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 2024 reports:
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/.