WCDefenseCA

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!  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!

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 Friday dear readers!

Another week is winding down – a special hello and thank you to all the wonderful people that made the WCRC conference in Dana Point such a memorable one, particularly as it had been so long since your humble blogger risked venturing out to gather with his fellow workers’ compensation creatures.  Hopefully, dear readers, our paths will cross at the conference next years.

In any case, if you can’t hang out with the humble blogger right this moment, perhaps I can interest you in a humble blogpost instead?

Well, let’s talk about the most-cursed beer in the world right now: Corona!  Your humble blogger theorized in this blog post that industrial COVID deaths resulting in transmission to and death of the employee’s family members could possibly follow the path of asbestos and pursue remedies against the employer in civil court rather than through the workers’ compensation system.  Well, the Kuciemba case seemed to shut that theory down, granting defendant’s petition for dismissal.

Now a different case is working it way through the court system: Matilde Ek v. See’s Candies Inc.  Plaintiff Ms. Ek was an employee of See’s Candies Inc. where she allegedly contracted Covid19.  She brought Covid home to her family, and her husbanded sadly passed as a result of the infection.

See’s Candies (my favorite is the dark cherry in chocolate, and if it’s not your favorite then, sadly, dear reader, you are wrong) sought a demurrer, arguing that any of Ms. Ek’s claims are derivivate of her workers’ compensation claims, and must be confined to the realm of workers’ compensation.  Ms. Ek’s attorneys argued, however, that despite her being a vector for the disease, she was claiming damages distinct from her own Covid suffering, but based on the death of her husband. 

The case is now up on appeal as to whether a demurrer is appropriate, as the trial level court denied defendant’s demurrer. 

In other words, dear readers, if you’ve been thinking to yourself that you really wish there were 2am TV commercials looking for clients who may have gotten COVID from a family member who got it from work… you are in luck!  Have a great weekend!

Ok, dear readers, you still with me? It’s Friday after all! 

Remember that Kuciemba case your humble blogger reported on a bit previously?  Well, it didn’t work out so well for the plaintiffs.

Mr. and Mrs. Kuciemba both sued Mr. Kuciemba’s private employer on a theory that Mr. Kuciemba was exposed to COVID19 in the course of his employment duties and then brought it home to his wife.  Both were hospitalized after testing positive for COVID19.

Previously, the trial judge in the Kuciemba matter dismissed the claim with leave to amend, reasoning that it should be confined to the worker’s compensation system as to Mr. Kuciemba’s claims, declining to apply the reasoning used for asbestos litigation to COVID19. 

Well, even after amending the claim, the trial judge found insufficient basis to proceed and dismissed the claim.  So, at least for now, employers can breathe a bit easier about the fallout of COVID19 exposure to their employees, to wit, employees’ family members claiming downstream exposure and suing for negligence.

That being said, it was the California Supreme Court that opened up asbestos litigation for family members of employees.  We should all agree to keep watch over this for developments up the chain of appeals.

Have a good weekend, dear readers!

Happy Monday, dear readers!

I know you’ve come here, ravenously hungry for some minor diatribe from your humble blogger about how life is unfair and the WCAB should be more receptive to my arguments and theories.  That is why you’re here… right?

Well, I just want to take a moment to pause and appreciate that we are here on the first of March, 2021.  Just think where you were one year ago.  Cruises were suddenly cancelling, there was a strange strain of the flu, and somehow everyone was worried about a Chinese virus named after a Mexican beer that could only be kept at bay by hoarding toilet paper to the magnitude of several lifetimes.  I wish I could go back and warn the 2020 humble blogger of what was to come.  But, sadly, I can’t.

Well, your humble blogger was privileged to write a short piece for the Workers’ Comp Executive discussing the possibility of COVID19 lawsuits analogous to the old asbestos cases, wherein family members of asbestos workers could sue based on a theory of breathing in asbestos left on the work clothes of employees returning home from work.  The fact that no employer-employee relationship existed between an asbestos worker’s employer and the asbestos worker’s family members didn’t bar such suits.

Couldn’t the family member of an employee who got COVID19 at work and brought it home sue in the same fashion?  That was the claim made by a husband and wife couple in San Francisco, which alleged that the husband’s employer violated various safety guidelines, resulting in the husband being exposed to and contracting Covid, and then spreading that infection to his wife.

The case was dismissed, giving the plaintiffs a chance to amend, so it’s not clear if the case or this theory will ultimately prevail.  However, the blood is in the water now, and, speaking for all the lawyer sharks out there, this is unlikely to be over.  Although the Order grating dismissal is very binding for this particular case, we’re likely to see more attempts such as this to squeeze employers for workers’ comp benefits AND civil tort benefits.

Now, why is your humble blogger wasting your precious time with this?  Because, the atmosphere in the defense community, speaking with colleagues and opposing counsel, seems to be one of complacency regarding resisting COVID19 claims.  Since the typical course of COVID19 seems to be a few days of flu, a few days of quarantine, and then back to business as usual, some employers are just eating the very limited exposure and moving on.

Efforts such as this should give employers pause and remind us all of the merits of investing in a thorough investigation.  Admitting the link between work and the first COVID infection makes it a lot easier to establish that it was spread at home.

Just think, dear readers, how great things will be looking when we revisit this blog post on March 1, of 2022.

Have a good week!