WCDefenseCA

Happy Monday, dear readers!  And truly, a happy Monday it is for the defense community, both workers’ comp and civil.  The California Supreme Court has issued its opinion in the case of Kuciemba v. Victory Woodworks essentially ruling that no duty of care exists on the part of employers to household members of employees when it comes to COVID19. 

The Kuciemba case, along with its brother-from-another-mother case, Ek v. See’s Candies, Inc. has been covered from time to time by this most humble of blogs.  Both cases essentially ask the same question: can the employer be held liable to household members of employees when COVID19 exposure (and, presumably, infection) occurred at the workplace and was brought home by employees to be transmitted to the household members?

Of course, the logic of this theory traces the path of Kesner v. Superior Court of Alameda County, a 2016 decision in which the California Supreme Court created a duty of care on the part of employers to household members of employees who brought asbestos home on their clothes, exposing non-employees.

But, unlike the asbestos line of cases, the California Supreme Court rejected such a theory: “although it is forseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.  These and other policy considerations lead to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.”

In distinguishing Kesner, the Kuciemba Court reasoned that while the only likely source for an asbestos exposure would have been the employer’s premises, COVID-19 was highly contagious and almost impossible to spread, and infection sources would also vary depending on the level of diligence on the part of the employee.  “The line between an employer’s negligence and transmission of the virus to household members is thus not as direct as in the asbestos context.”

One key factor in the Supreme Court’s decision appears to be the policy consideration weighing against finding liability on the part of the employer.  However, the Court left the tort liability door slightly cracked, rather than slammed shut: “In doing so, we are mindful that social conditions surrounding COVID-19, much like the virus itself, have evolved a great deal since the start of the pandemic, and these changes are likely to continue.  We acknowledge that the calculus might well be different in the future.”

So, while the current position of the California Supreme Court appears to be that no duty exists on the part of the employer to the household members of the employee in prevent COVID-19 exposure, if COVID-19 continues to plague us in 5 years, will some enterprising plaintiff’s attorney run the gauntlet again?

Getting to the Supreme Court is expensive and time consuming.  Hopefully, the little opening left by the Kuciemba court will not be enough to prompt the plaintiff’s bar to try again.  In the meantime, your humble blogger will be stopping by See’s Candies to pick up some cherries in chocolate to celebrate this result.

Happy Wednesday, dear readers!

Your humble blogger has the misfortune of reliving, frequently and without reason, some of his more awkward moments.  Some as early as my formative years, some more recent.  It’s never a pleasant experience and I would rather not – but awkward is as awkward does. 

Like those awkward memories, COVID19 is going to remain with us, and make us fairly unhappy, for years to come.

When defending a COVID19 case, though, the most obvious argument against compensability is that the exposure and infection occurred outside of the workplace, no?  Given that employees naturally have privacy rights, trying to establish exposure outside of the workplace can be a challenge, certainly.

What better way to get the information about applicant’s non-work activities than to ask those living with applicant?

Well, that is the subject of the panel decision in Labella v. Marathon Petroleum, a panel decision issued by the WCAB late last month.

Applicant alleged injury in the form of COVID19 related illness while employed by defendant.  Defendant then sought to compel the testimony of 3 witnesses who all, as claimed by defendant, lived with applicant.  The petitions alleged the depositions were necessary “to obtain details of [applicant’s] possible exposure to COVID at home.”

Sounds reasonable, no?  If one of the witnesses testifies to coming home with COVID19 from a trip several days before applicant showed his first symptoms, wouldn’t that be relevant to the AOE/COE determination?  Likewise, if no one at home had COVID19 symptoms prior to applicant showing his symptoms, wouldn’t applicant’s counsel be chomping at the proverbial bit to have those witnesses testify under oath and state this fact?

Well, the WCJ denied the petitions, reasoning “this court is unaware of any basis or jurisdiction for compelling a non-party to appear for deposition.”  Defendant then sought removal.

The WCAB granted removal and sent the matter down for further development of the record, but did not reverse the denial of defendant’s petition out of hand.  So, unfortunately, we do not have the fiery and affirmative right to depose family members regarding COVID19 cases.  However, the commissioners did provide some guidance.

The commissioners referred the parties to Labor Code section 5710, which allows the appeals board to cause the depositions of witnesses who need not be parties to the case (“a workers’ compensation judge, or any party to the action or proceeding, may … cause the deposition of witnesses residing with or without the state…”).   The opinion rejects the theory that only the employer’s employee witnesses may be so compelled.

The opinion further notes that the WCJ is empowered to issue protective orders, but that generally the WCJ and the WCAB can order non-party witnesses to sit for deposition.

So, while not definitive or controlling, it does signal that at least 3 WCAB commissioners appear inclined to allow defendants to depose family and co-habitants of COVID19 claimants.

Your humble blogger would add some more food for thought – when we go down this road, we will inevitably run into issues of spousal privilege.  Whether communications between spouses can be offered into testimony, or, more importantly, being called as a witness at all (see Evidence Code 970).  But, we don’t only live with our spouses alone.  Children, roommates, grandparents, parents, etc., do not qualify for the privilege under EC 970. 

Although, hopefully, cases of COVID19 infection become less frequent, and the litigated cases related thereto become less frequent still, we will continue to see these cases crop up now and again.

Till next time, dear readers!

Happy Monday dear readers!

Did we all survive the storm ok?  Everywhere your humble blogger looks, there are trees knocked over, so hopefully everyone is safe!

Well, aside from the other storm getting ready to pound the Bay Area, there’s a smaller storm a brewin’ in our beloved swamp of Workers’ Compensation.  The WCAB has issued an En Banc opinion rescinding several emergency procedures put in place in light of the COVID19 state of emergency in California.

The opinion issued March 22, 2023, so presumably it is effective as of that date, and all C&R’s executed previously are still safe.  But, going forward, any C&Rs to be submitted to the WCAB and executed on or after March 22, 2023, will have to have witness signatures.

Specifically, the WCAB rescinded emergency Orders Misc No. 260, 261, and 266.  What are they?

Misc. No. 260 suspended Rule 10500(b)(6) requiring witness signatures on compromise and release documents.

Misc. No. 261 suspended Rule 10940(b) requiring e-filing (rather than e-mailing certain documents directly to the Workers’ Compensation Judge.

Misc. No. 266 suspended Rule 10789(c) which established walkthrough hours (8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 4:00 p.m.)

In light of this new En Banc Order, when preparing a C&R, we now need to ensure we secure witness signatures; documents must again be properly e-filed; and walkthroughs, which are already in person, may be conducted during the previously established hours. 

Your humble blogger sincerely hopes this is not a sign that Mandatory Settlement Conference and Status Conferences will return to in-person, as the current system of remote hearings appears to be very effective, conserving resources for the parties and expediting resolution of disputes.

For the past three years, there have been many calls urging us to return to “normal.”  However, in  your humble blogger’s even humbler opinion, through the measures necessitated by COVID19, we have discovered some procedures that are better than what used to be “normal.”  Let our urge to escape the horrific effects of the COVID19 epidemic not cause us to dismiss the lemonade we have produced from the lemons we’ve been given.

Onward and upward, dear readers!

Happy Wednesday, dear readers!

We are powering through March and, if you’re like me, you’re still reeling from daylight saving time shift that occurred earlier this week. 

You know what’s special about March?  It’s been roughly three years since the lockdowns began.  So what better way to commemorate three years since the world turned upside down than with a COVID workers’ compensation case?

That case is the panel decision of Dawson v. Patton State Hospital.  Therein, following a trial, the WCJ concluded that applicant failed to carry her burden of proof of establishing industrial causation on COVID19 infection.  After returning from a non-work trip in March of 2020, applicant engaged in union activities and reported for work on March 17, 2020 with symptoms of a sore throat.  On March 28, 2020 she tested positive for COVID 19 based on a sample taken the prior day.

In reviewing the WCJ’s decision, the WCAB noted that the presumptions of industrial causation found in Executive Order N-62-20, later to be codified as SB1159, did not apply as applicant last worked on March 17, 2020, and the executive order applied for employees who worked on or after March 19, 2020.

What a difference a day makes, 24 little hours… (sing that one twice!)

Spoiler alert… the WCAB reversed the finding of no industrial causation.  But how? 

The WCAB noted that there was a dispute as to when the infection occurred as between the QME and the PTP.  The QME opined that the exposure likely happened during the non-work trip, while the PTP opined that the symptoms appear 2-14 days after the infection, which would rule out her trip as the exposure point.  Is the development of more severe symptoms the trigger for infection, or the milder symptoms applicant had after returning from her trip?

The WCAB ordered the parties to return to the trial level to further develop the record on whether the initial symptoms (sore throat) were the sign of COVID infection or the more severe symptoms to establish the date of infection.  The WCAB also provided guidance that applicant need not prove the exact time she became infected, but only if her work activities caused her to have higher risk than the general public of contracting the disease.

Your humble blogger, however, would submit that there is another point which the WCAB did not appear to consider: applicant’s burden of proof.  Applicant has one bite at the apple to establish initial causation and developing the record is not appropriate when applicant failed to establish AOE/COE.  If applicant fails to carry her burden at trial as to causation, the case should be done with an order to take nothing.

In litigating these cases, particularly when none of the COVID19 presumptions apply, defendants would be well served shooting for disproving causation, rather than merely pointing out that applicant has the burden of proof.  Since justice moves slowly, we are likely to continue seeing these cases reach the WCAB to address causation on COVID19.

Much like the Starks of Game of Thrones chant “Winter is Coming,” so too the motto for California workers’ compensation is “Reform is Coming.”  Every now and then, we see another attempt to fix the system.  Perhaps the defense community should add to its wish-list for the next reform a stricter standard for “developing the record,” particularly when AOE/COE is in dispute.

Happy Wednesday, dear readers!

I hope you aren’t tired of hearing more about COVID19 because there has been a new development in the Kuciemba case.  Although the See’s Candies case was sent back to the trial level by the Court of Appeal, with review of the remand denied by the Supreme Court, essentially the same question is to be addressed by the California Supreme Court at the request of the 9th Circuit Court of Appeal.

Back in April of this year, the 9th Circuit asked the California Supreme Court to address whether family members of employees could sue the employer directly for the COVID19 which was brought home.  If that’s a confusing set-up, the simple version is this: Jack goes to work and gets exposed to COVID19 at work.  Jack comes home and passes COVID19 on to Jill, who lives with him.  Jill suffers due to the infection and wants to sue Jack’s employer for negligently exposing Jack to COVID19, enabling him to expose Jill.

If that sounds familiar, that is the exact same path of liability as the California Supreme Court created for asbestos exposure.  The question remains if COVID19 will get the same treatment.

On June 22, 2022, the California Supreme Court granted the 9th Circuit’s request and it looks like this issue will be addressed directly.

In light of this, your humble blogger suggests employers take action now to prepare for the flood of litigation to follow.  For all known industrial COVID19 cases, documentation should be taking place of family members, dates of exposure, etc.  Employers might consider proactively settling any claim that is questionable and has been denied with a Thomas finding as soon as possible, rather than letting the denial stand and the statute of limitations run.

Finally, employers should be aware that the limited exposure for a healthy employee that bounced back from a positive COVID19 test with no more than a paid vacation quarantine period, might very well have family members that did not tolerate exposure quiet so easily.

From anecdotal evidence, your humble blogger has seen and heard of the administrative burden placed on claims adjusters to set up and properly document fresh COVID cases.  Employers may find themselves overwhelmed by the sheer volume of take-home COVID cases they are suddenly forced to address and would be well served by getting ahead of this now.

And, as always, your humble blogger urges you to loop in your workers’ compensation attorney into any preparation for defending potential civil suits – no harm is done by cooperation and coordination.

Nothing would make me happier to be absolutely wrong in this regard and for the Supreme Court to find that no such exposure exists and that COVID19 is not asbestos.  But, your humble blogger bears the curse of often enough being right. 

Now, let’s all get ready for what lies just ahead as best as we can.  Straight on to Friday, dear readers!

Happy Monday, dear readers!

Your humble blogger hopes you are having a great time as we approach the start of May.  The year is zipping right by us as we cruise into the future.  Speaking of, it’s no secret that your humble blogger is a big fan of gadgets and technology.  When that interest intersects with the self-destructive obsession with workers compensation, his beloved readers are typically burdened with a blog post… so here we go!

In September of 2020, Governor Newsome signed into law SB 1159 which created various presumptions for COVID exposures.  Some are for the initial outbreak, and some are for certain professions such as law enforcement and healthcare workers among others.  But there’s another section having to do with outbreaks, defined as at least 4 employees (or 4% of the employees at a specific workplace, whichever is greater) testing positive within a 14 day period.

How is the employer supposed to rebut the presumption of industrial exposure in an outbreak case?  Well, we have the tools at our disposal that existed before the outbreak: discovery such as depositions, social media investigation, and investigator interviews.  But, despite the best efforts of Sacramento, the market tends to respond when there is a need.

A company called Estimote has possibly built a better mousetrap by creating collar tags that are worn by employees in the workplace.  The collar tags are supposed to vibrate when two tags are within 6 feet of each other, and also provide contact tracing.  So, if Jill at the office reports a positive Covid test, Jack at HR can check her history for the last 14 days and show which other devices have been within 6 feet of Jill.

Is this a certainty?  Of course not.  Employees can still be exposed to Covid by customers or visiting vendors who probably won’t be wearing these devices.  But the presumption is rebuttable and perhaps this evidence will provide some basis to offer a denial.

While it’s possible that an employee is infected because of contact at work, neither the workers’ compensation system nor life in general operates on possibility – the standard is always probability.   If an employer can effectively demonstrate that an applicant did not have contact within 6 feet of any other Covid positive employees in the past 14 weeks, doesn’t that drastically reduce the likelihood that the exposure occurred at work?

Ultimately, employers will have to weigh the cost of obtaining, setting up, monitoring, and, most importantly, enforcing, such a system against the likelihood of reduced workers’ compensation costs. 

Straight on to Wednesday, dear readers!

Happy Friday, dear readers!

As we head into the weekend, your humble blogger brings you a brief update on the See’s Candy case.  As my beloved readers will recall, in the matter of Ek v. See’s Candies, the Court of Appeal held that plaintiff-widower can proceed in a civil tort action against her employer on a theory that her employer’s negligence caused her to transmit COVID19 to her husband, resulting in his death.

As yet another shameless plug, dear readers, if you missed the webinar on this issue drop me a line about reviewing the recorded version.

Anywho, all eyes were on the Supreme Court to see if there would be a new floodgate of asbestos-like litigation with employers researching the family tree and domestic living situation of every employee to test positive for COVID19.

Earlier this week, the California Supreme Court declined to review the decision, meaning that the case can proceed rather than being dismissed outright.

And here we are dear readers – your humble blogger’s suggestions stand regarding calling for an increased level of cooperation between workers’ compensation defense teams and civil liability defense teams to make sure the defense of one case does not prejudice the defense of the other.

Have a great weekend!

Happy Monday dear readers!

Here we are again and today the WCAB is back to in-person hearings and trials.  Your humble blogger has reports from the first few practitioners who have had in-person trials again and here is the video with a description of what life is like back at the Board in person:

Thanks to all my beloved readers who managed to attend the COVID19 update last week.  If you missed it and would like an encore for your office, please drop me a line! 

As one attendee pointed out, there is an updated in the Kuciemba case.  As you may recall, the Federal trial judge in the Kuciemba matter dismissed plaintiffs claims, reasoning that California law does not allow an employee’s spouse to sue the employer for negligent COVID19 exposure, instead limiting damages to the workers’ compensation system.

Well, the plaintiffs in Kuciemba appealed, and oral arguments were held on March 10, 2022.  It appears that the 9th Circuit panel is considering a “wait-and-see” approach to hear from the California Supreme Court for guidance.

In other words, the issue of employer COVID19 liability to non-employees is not resolved or certain yet.  We should continue to monitor the situation, but your humble blogger respectfully submits that we, on the workers’ compensation side of things, should be making sure we don’t cut corners that might prejudice the civil side of things.   In other words, don’t let this picture be you!

As if we didn’t have enough to worry about when assessing a COVID19 workers’ comp case, but, to quote Mr. Hyman Roth, “this is the business we’ve chosen.”

Happy Monday, dear readers! Here we are starting yet another week on a beautiful Monday in our beloved swamp of workers’ compensation. 

So, if you’re following the COVID news beyond the borders of California, you’re likely seeing a long list of countries (and states) that seem to be rolling back restrictions on COVID19.  England has already dropped almost all of its COVID19 restrictions, as has Ireland, as has Denmark, as have many states and counties. 

If that’s the global trend, why do we need to extend the sunset period for SB1159 and the presumption laws?  Why do we need to continue to burden employers with tallying total employees and for periods related to every covid exposure?  Why do we continue to make employers such as fire departments, police departments, and hospitals, general insurers against something to which we are all exposed?

That is the effect of proposed AB 1751, introduced by Assemblyman Tom Daly, which would extend SB1159 from sunsetting on January 1, 2023 to January 1, 2025.   California’s employers’ have been through the wringer already.  The golden state already makes it hard enough to keep the lights on, and COVID19 and the related lockdowns were brutal, keeping customers and clients away. 

With SB1159, California burdened employers further with a tremendous administrative undertaking in keeping track of numbers for outbreak purposes, reducing investigation periods from 90 days to 30 or 45 depending on the circumstances, and, in light of the See’s Candy case, likely setting employers up for liability in the torts arena as well.

Sacramento seems intent to look out at a flock of geese laying golden eggs and get excited for the prospect to cook them.  After the tremendous toll California’s employers have borne for the last two years, shouldn’t Sacramento be focused on helping California’s employers recover from COVID19? 

In any case, dear readers, your humble blogger wishes AB 1751 a swift demise and you, his beloved readers, a good week!