The calendar year of 2023 featured some important legal decisions on the topics of appellate procedure, Covid-19, employment, and LC 5710 fees.
We at the Law Offices of Bradford & Barthel try to keep up with the latest breaking decisions, and have decided to summarize them here so our audience is up-to-date on the law heading into 2024. Here is a list of some of the year’s most important cases, with links to blogs about them.
GRANT-AND-STUDY
In August 2023, the 2nd District Court of Appeal ruled that the Workers’ Compensation Appeals Board must stop its grant-for-study practice. This refers to the practice where a party would file a petition for reconsideration with the WCAB, the WCAB would “grant reconsideration,” and in its decision the WCAB would say it needed more time for review.
The appellate court ruled that the WCAB couldn’t do this exact same practice again in the future. However, the appellate justices determined that the WCAB isn’t required to issue a decision on the merits within 60 days either. Rather, the 2nd DCA appeared to encourage the WCAB to write more detailed decisions, while still reserving the right to rule on it in the future.
Now here’s where things get really interesting – on Dec. 18, 2023, a different division in the 2nd District Court of Appeal issued a new published decision in the case of Zurich American Insurance Co. v. WCAB, B321864, 12/18/23.
In this decision, the appellate justices said that the WCAB no longer has jurisdiction to rule on a petition for reconsideration after 60 days. As such, the appellate court upheld what appears to be a victory for Zurich, and a defeat for the California Insurance Guarantee Association (CIGA).
We at the Law Offices of Bradford & Barthel anticipate that this could result in a showdown at the California Supreme Court, especially if CIGA files a petition for review with the high court in this case. They have 45 days to do so. Why would the state Supreme Court want to review it? Because there appears to be conflicting case law at the appellate court level. When lower appellate courts have conflicting published decisions, higher courts usually have to weigh in to resolve the conflicts.
We will have more blogs on this developing story in the near future.
VOCATIONAL APPORTIONMENT
In June of 2023, we summarized an en banc decision from the WCAB that clarified that vocational rehabilitation experts cannot simply ignore apportionment given by medical experts and substitute it with their own “vocational apportionment.”
This is probably best explained by example. For instance, if a QME in orthopedic surgery apportions 50% of a person’s permanent disability to a prior stipulated award from 20 years ago, the vocational rehabilitation expert cannot simply ignore that apportionment.
The decision goes onto clarify that if a vocational rehabilitation expert is going to disagree with other experts on the case, they had better have a very detailed explanation why they are doing so.
COVID-19
The California Supreme Court issued a whopper of a decision in July 2023 that said that employers do not owe a duty of care to prevent family members and housemates of employees from catching Covid-19. This applies to a specific set of circumstances, which are:
- An employee allegedly gets Covid at work,
- They allegedly take home the Covid-19 and give it to a relative who lives with them,
- The relative dies from Covid-19,
- The employee sues the employer for wrongful death.
The high court decided this decision on public policy grounds, and concluded that the employer does not owe the relative a duty of care in that scenario. Read more about it here.
LC 5710 FEES
While the panel decision of Cowens v. ABC Unified School District was technically issued in 2022, it became popular in 2023. Why did it become popular among defendants?
Because the WCAB commissioners affirmed a trial court decision that said that applicant’s attorneys cannot lump in tasks performed by non-attorney staff into LC 5710 fee requests, such as “staff scheduling of the Zoom deposition.” Read more about it here.
EMPLOYMENT
Louis Larres, director of Bradford and Barthel’s Appellate Division, scored a nice victory at the 2nd District Court of Appeal in December 2023 when they issued a published decision stating that The Salvation Army was not the employer of an applicant.
The decision applies only to a smaller subset of cases, as the applicant in this case was ordered to enlist in a residential drug rehabilitation program as part of his court-ordered probation. The applicant was completing his probation at the Salvation Army’s residential drug rehabilitation program, when he was injured while working in a warehouse. The appellate court concluded that The Salvation Army was not applicant’s employer, but remanded the case for further discovery on whether Santa Barbara County was the applicant’s employer.
Read more about it here.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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