WCDefenseCA

Happy Friday, dear readers!

The big news this week is the execute order signed by Governor Newsom on May 6, 2020, creating a rebuttable presumption for claims of Covid-19 to be found industrial under some circumstances.

Unlike some of the legislation pending in Sacramento, Executive Order N-62-20 seems relatively conservative by comparison.  The scope of the Order is limited to employees who test positive for Covid-19 or are diagnosed with Covid-19 (so long as the diagnosis is confirmed by testing within 30 days of the diagnosis).

The Order is also limited to a diagnosis or testing 14 days of the last day physically worked at the employees place of employment but NOT in a work-from-home scenario.  So anyone hoping to claim that “but for the stress of my work from home job, my immune response would have been better and I would not have actually contracted Covid-19 from my spouse who brought it home from the supermarket” might be out of luck. 

The time scope is limited as well – injuries must have occurred between March 19, 2020 and July 6, 2020.  There’s also no restriction on apportionment for permanent disability (if any).  As to temporary disability, it must be re-certified every 15 days instead of every 45 days.

But the worst part of the Order is in the investigatory period – defendants must accept or deny the injury within 30 days instead of 90.  Your humble blogger prides himself on moving files quickly, but I don’t think I could get a deposition scheduled and done within 30 days of a claim being made, especially when applicant attorneys have nothing but incentive to delay discovery.

Here are your humble blogger’s thoughts on this, but just bear in mind dear readers, things are worth exactly what you pay for them, so remember how gentle your blog subscription fees are on your budget…

First of all, and this is my cynic side talking – it could have been far worse.  This is pretty limited in that it is a rebuttable presumption rather than conclusive; a diagnosis must be confirmed by testing; and TD certification must happen every 15 days.

That being said, does the Governor have the authority to do this?  In the Published Court of Appeal case of Zuniga v. WCAB (2018), the Court of Appeal held that “Under article XIV, section 4 of the California Constitution the Legislature ‘is … expressly vested with plenary power unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation by appropriate legislation.”  What does “plenary” mean if not exclusive?  If the Legislature has exclusive or plenary power over the workers’ compensation system, does the Governor have authority to issue an executive order as to presumptions, the burden of proof, etc.?

We must also remember that it’s not 30 days to make a determination does not mean that it’s 30 days to accept the injury.  Defendant can still issue a denial and continue discovery (we still have due process rights, don’t we?)

But, with all this in mind, here’s what employers need to do – keep your claims examiner informed!  Keep good records of the claimant’s shifts and make sure the adjuster has those.  Keep good records of the protective equipment issued and used and let your adjuster know about them.  And if your employee called in sick before making a claim, reconstruct that timeline.

Even in the face of this executive order, there is still room for a vigorous defense and careful maneuvering – the defense community need not despair and lose hope.

In any case, dear readers, your humble blogger has an executive order of his own: have a nice weekend and come back on Monday for more blogging of the humbles sort.