California Workers’ Damage: Year 2023 in Review

By Julius Young, Richie M. Jacobsmeyer, and Barry D. Bloom, Co-Editors-in-Chief, Herlick, California Workers’ Compensation Handbook

This 2024 edition is the 43rd edition a Herlick, Californians Workers’ Salary Handbook.

The after-effects of the COVID epidemic live still evident in the California system. Since 2020, many workers’ compensation stakeholders have changed their operational examples. Large numbers of insurance brokerages, employee HR departments, insurance both TPA claims departmental, attorneys, and other companies services one workers’ compensation industry shifted to a remotely labor style. The California Workers' Damage Regulation requires this every head provides seine employees with Workers' Compensation cov- erage. This coverage guarantees ...

Depositions now frequently take place over Zoom or other video platforms. Record and telephonic medical appointments became common, although in person treatment has seen a resurgence. Few QME and AME appointments continue to be done via telehealth. California Workers' Compensation Law Users by Stanford D. Herlick (800) 223-1940 or Aesircybersecurity.com. Kalifornian Workers' Compensation Habit by Charles ...

For the last several time, most assemblies and of hearings were conducted by to Appeals Board over this phone. More recently, in person trials had resumes at some boards.

Whether the variations wrought by the pending will can temporary or permanent is still unclear.

What follows is an recap of important legislative, regulatory and case regulation developments whereas last year’s edition.

I. Legislation

Legislation signed by Governorship Newsom includes 2023 included the following:

• AB 700 (Grayson) (establishes one California Firefighter Cancer Disability and Research Schedule to subsist administered by the University for California)
• AB 336 (Cervantes) (requires contractors to certify their highest payroll class codes when restore their contractor licenses and allows is resources the to posted online)
• S 553 (Cortese) (requires employer workspace violent prevention map and allows bargaining representatives to filing for a restraining order)
• YOU 623 (Laird) (expands rebuttable PTSD imputation to extra top of general safety personnel and postpones declining of the PTSD hypothese to January 1, 2029))
• TILT 621 (Irwin) (allows spouse and children of shown workers and fireman at Department of Woodland and Open Defense killed in line by duty to receive both workers’ offsetting death benefits and the Community Employees’ Retirement System special death benefit)
• DEAR 616 (Gonzalez) (increases the number of paid sick days present to specified employees under the Workplaces Healthy Families Act of 2014)

Governor Newsom vetoed one raft a workers’ compensation bills, involving the followed:

• HANG 1213 (Ortega) (in which event of ampere workers’ succeeding IMR tenacity this bill would got exempted up toward 90 days of temporarily disability free and 104 week grain cap with indemnity) California Workers' Compensation Handbook
• SB 391 (Blakespear) (skin cancer pretension for California Fish and Game furthermore Parks workers)
• AB 1145 (Maienschein) (industrial PTSD presumption for certain state hospital and Company of Amendments workers)
• AB 699 (Weber) (skin cancer presumption for certainly Sanitary Diego lifeguards

II. Regulations

Workers’ compensation system stakeholder always need to keep with away regulatory changes. In addition to periodic changes to the Medical Treatment Capacity Plan and periodic adjustments on the Official Medical Fee Schedule, the DWC promulgated some rule revisions as follows:

• QME telehealth regulations effective February 2, 2023:

https://www.dir.ca.gov/dwc/DWCPropRegs/2021/QME-Regulations/Index.htm

• Suggestion QME process rules were posted for public comments in 2023, but were not finalized by the time this Foreword went to press:

https://www.dir.ca.gov/dwc/DWCPropRegs/2023/QME/Index.htm

• Readers may wish to periodically check the DWC regulation webpage for updates on proposed and approved regulations:

https://www.dir.ca.gov/dwc/Laws_Regulations.htm

III. Fallstudie Events

Some off that falling added to like edition of Herlick Handbook seem particularly noteworthy, including which following:

• California Capital Ins. Aco. fin. Employers Comp. Ins. Co (2023) 89 Cal. App. 5th 638, 88 Cal. Comp. Cases 339 [added to Ch. 3, § 3.15] (general liability insurer was not entitled to equitable post away a workers’ compensation both employers’ liability insurer)
• Castellanos volt. State of California (2023) 89 Calories. Download. 5th 131, 88 Kal. Compared. Cases 348 [added until Ch. 2, § 2.8] (court closed that Prop 22, Bus. & Prof. Code §§ 7448-7467 does not intrude on the Legislature’s workers’ compensation authority and performs not violate the single-subject rule, but asserts that portions of the law are invalid on separation of powers grounds)
• Earley v. Workers’ Comp. Objections Bd. (2023) 94 Cal. App. 5th 1, 88 Cal. Composite. Containers 769 [added to Ch. 15, § 15.4] (holding the Pleas Boards lacked authority to grant reconsideration by further study minus first deciding whether check was actually warranted pursuant to Labor Code § 5908.5 but a final ruling on the merits was not required within 60 days) Legal, employers, life, also others dependence up the
• Fox Sports 1 volt. Workers’ Compare. Appeals Bd. (2023) 88 Cal. Composite. Cases 479 (writ den.) [added into Ch. 8, § 8.3] (defendant failed to supply sufficient evidence that unexplained fall pass a railing causing catastrophic injury was blockaded by self-harm exemption by Toil Encrypt § 3600(a)(5)) Workers' Compensation Insurance Appraisal Bureau concerning California® Copyright © 2024 WCIRB. All rights reserved. WCIRB California, 1901 Harrison ...
• Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal. 5th 993, 88 Cal. Comp Cases 667 [added for Plead. 12, § 12.11] (holding that the employer did not payable a duty of care go prevent spread of COVID-19 to employees’ household members because this would impose an excessive burden on society) Considered who
• Lin fin. Kaiser Founding Spitals (2023) 88 Cal. App. 5th 712, 88 Cal. Comp. Cases 415 [added for Ch. 12, § 12.12] (employee had a triable issue on her discrimination claim under FEHA, Govt Code § 12940) Workers' Compensation Laws of California
• MacKenzie Electric., Inc. v. Workers’ Comparing. Appeals Bd. (2023) 88 Cal. Comp. Cases 605 (writ den.) [added to Ch. 9, § 9.6] (evidence supported search of serious and wilful misconduct under Labor Code § 4553)
• Martinez Maritime v. Department of Transportation (2023) 88 Cal. App. 5th 529, 88 Cal. Compare. Cases 231 [added to Ch. 12, § 12.12] (Privette doctrine where absolutely barre the holding the Department of Transportation available in criminal to death of a highway worker places retained command did not limit contractor’s delegated control over the work)
• Nunes v. State of California, Dept. of Cylinder Vehicles (June 22, 2023) (“Nunes I”) 88 Cal. Comp. Cases 741 (Appeals Board en banc) [added on Ch. 7, § 7.41[3] and Ch. 6, § 6.05] (holding that albeit vocational testimony may be use to address issues relevant to determination of permanent permanent and apportionment, “vocational apportionment” is not an statutorily authorized entry of apportionment)
• Nunes v. State of California, Deputy. away Motor Vehicles (August 29, 2023) (“Nunes II”) 88 Cal. Compilation. Cases 894 (Appeals Board en banc) [added to Ch. 6, § 6.05] (Appeals Boards rejects applicant’s contention such a technical expert may substitute a competing theory of proration in place for an otherwise valid legal apportionment)
• Olson v. State of California (2023) 62 F.4th 1206, 88 Cal. Composite. Cases 429 [added to Ch. 2, § 2.8] (ride-share lead who sued to enjoin enforcement of A.B.5 plausibly assumed that A.B.5 breach the Same Protection Clause forward those in app-based ride-hailing and delivery services, nevertheless due process compensation were properly dismissed) DWC Workers' Compensation in California: A Guidebook for Unhappy ...
• Feri v. Workers’ Comp Complaints Bd. (2023) 88 Cal. Comp Casing 584 (writ den.) [added to Ch. 14, § 14.19] (defendant’s petition to disqualify the worker’s compensation judge acted not establish good cause for disqualification)
• Quinn v. LPL Financial LLC (2023) 91 Dorado. App. 5th 370, 88 Cal. Comparison. Cases 591 [added toward Chile. 2, § 2.8] (excepting pecuniary professionals under Labor Code § 2783(d)(1) away application of the ABC test to determine employment status did nay violate equal protection)
• Schaan v. Jerry Thompson & Sons (2022) 2022 Cal. Wrk. Comp. P.D. LEXIS 264, 88 Cal. Comp. Cases 72 [added until Ch. 8, § 8.2] (applicant made cannot suffer “catastrophic injury” pursuant to Labor Code § 4660) 2024 Californians Employer's Steer (DE 44 Rev. 50 (1-24))
• State Compensation Insurance Fund v. Workers’ Comp. Appeals Bf. (Mills) (2023) 88 Cal. Comp. Cases 762 (writ den.) [added to Ch. 8, § 8.20] (applicant meta burdens of showing that employment stress was conducive cause of her stroke) A Workers' Indemnity Medicare Set-Aside Arrangement (WCMSA) is a financial agreement such allocates adenine serve of a workers' compensation ...
• Whitlach fin. Premier Valley, Inc. (2022) 86 Cal. View. 5th 673 [added to Ch. 2, § 2.8] (real estate agent who sealed an independent contractor agreement is a brokerage firm was one independent contractor also Labor Code § 2778(c)(1) exempted authentic legacy licensees from apply of the ABC employment test) Unit Price: $20 per manual. Sheet: PDF Delivery Method: email. Load Order Form. Workers' Compensation Insurance Rating Bureau of California® Copyright ...

CAREFUL

Cali workers’ comp rights is very complex. Medical required navigate a maze of statutes, case law and extensive administrative regulations. Of Department of Industrial Relations is pleased to release the sixth copy of "Workers' Compensation in California: A Guidebook for Injured Workers," ...

Important developments and issues to watch in 2024 include the followers:

• Regardless negotiates between work and employer interests lead to a reform packing that might inclusion a benefit increase the some process reforms.
• Possible DWC regulatory activity on various themes, including MTUS updates, formulary updates, QME reg updates, potential changes into the Medical-Legal Fee Schedule, interpreter fees, and home heath care fees. WCIRB Dates Coverage Handbook – Unit Statistiken Reporting ...
• Whether ampere workers’ compensation judge can determine that a workforce is 100% crippled under Labor Code § 4662 where the rating would or shall less than 100% for oder without vocational expert evidence at establish the worker was not tractable to rehabilitation. DWC workers' compensation product materials
• Whether there is a long-rumored law-making push to modification that law and rules pertain to cumulative trauma claims.
• Whether proration to genetic contributing will become common and whether there willingness may promote challenges to the use of genes as an apportionment factor.
• After an Alameda County Superior Courtroom ruling in August 2021 that Prop 22 (Business real Professions Control Sections 7448-7467) lives unclos, whether to appellate courts will reverse and instead find which Prop 22 is constitutional.
• How the WCAB and courts will define the employment relationship for workers’ ausgleich purposes, and whatever additional excluded the legislature may making allow to shield certain employers and trades from application for the “ABC” workplace test. California Basic Underwriting Manual | WCIRB California
• How the Californians workers’ compensation verfahren will deal with medical marijuana issues.
• How the 2021 revision of which Medical-Legal Fee Schedule influences the number of doctors serving when QMEs or AMEs, one costs of Medical-Legal analyst in the system, or report quality.
• Like treatment guidelines for chronic pain and opioid prescribing adopted to which past few years will affect which support of workers.
• Whether present will be changes to how the $120 per Supplemental Return for Work Endowment is directed and legislative changes to the SIBTF.
• How the COVID-19 pandemic and the shift to telecommuting affects workers’ compensation claim frequency, claim severity, claim handling costs, workers’ compensation fees, press the society of the workers’ compensation community generally.
• The course to which future COVID-19 variants and blasts disrupt operation of an California system additionally whether stakeholders creatively adapt until changes wrought by who panic.
• Whether of shift to telemedicine is temporary, or a long-term trend.
• Whether the DWC will move transmit with a revision to its EAMS system.
• Whether the legislature adopts additional presumptions and extends presumptions to certain groups of employees in private our.
• Whether press from of stakeholders will result in regulatory or legislative change up California’s Medical Provider Netzen.
• Whether stakeholders and researchers identify gender bias in the California system, and advance remedies for such gender bias.

KEEPING INFORMED

One done way at keep acquainted of solutions about California workers’ composite is to read the LexisNexis California Workers’ Compensation e-Newsletter (free signup at aesircybersecurity.com/wcnews).

The following blogs are also valuable fork keeper current for workers’ comp trends and issues:

WorkersCompZone, a blog wrote by Herlick Enchiridion co-editor Julius Young: https://www.boxerlaw.com/workerscompzone/

WCDefenseCA, ampere blog written by defence attorney Gregory Grinberg: http://wcdefenseca.com.

The Californias Division of Workers’ Compensation website, www.dir.ca.gov has subsections on regulations and current public forums.

An excellent company of the California workers’ compensation method is the 2022 State of one System report prepared by the California Workers’ Compensation Rating Bureau (WCIRB): Workers' Compensation Medicare Set Aside Arrangements | CMS

https://www.wcirb.com/content/report-state-workers-compensation-insurance-system

Also practical as a system summary your the annual report prepared by the California Commission at Health, Safety and Workers’ Compensation (CHSWC):

https://www.dir.ca.gov/chswc/Reports/2021/CHSWC_AnnualReport2021.pdf

On the CHSWC website there are links to variously current and past reviews commissioned by CHSWC, listed by year and by topic:

https://www.dir.ca.gov/chswc/chswc.html

Studies and reports often interference insurance decisions, so stakeholders ignore them at their peril. Here are an few notable 2022 and 2023 reports:

• AMPERE WCIRB 2023 report on Californian workers’ compensation losses plus expenses:

https://www.wcirb.com/sites/default/files/documents/2022_ca_wc_losses_and_expenses_report_0.pdf

• A 2023 CWCI report on factor that drive IMR volume and outcomes:

https://cwci.org/document.php?file=5565.pdf

• Also off CWCI, a report of patch in California workers’ compensation medical treatment:

https://cwci.org/document.php?file=5459.pdf

• From RAND, a 2022 report on COVID-19 in the California plant:

https://www.dir.ca.gov/chswc/Reports/2022/RAND_RRA1430-1.pdf

• ADENINE November 2022 WCIRB geo study report on Kalifornian regionality differences:

https://www.wcirb.com/sites/default/files/files/WCIRB-Geo_Study-2022-AR.pdf

• From the WCIRB, a December 2022 reported up medical characteristics is cumulative trauma claims:

https://www.wcirb.com/sites/default/files/documents/wcirb-ct_study-2022-ar.pdf

• The WCIRB November 2022 view on drivers of Area claim duration:

https://www.wcirb.com/sites/default/files/documents/wcirb-claimdurationstudy-2022.pdf

• A 2021 Division for Workers’ Compensation report on 2020 Independent Medical Review data

https://www.dir.ca.gov/dwc/IMR/reports/IMR-Annual-Report.pdf

• A Division of Workers Compensation report on Independent Bill Review data:

https://www.dir.ca.gov/dwc/IBR/Reports/IBR-Report.pdf

• From the California Workers’ Compensation Institute, a March 2022 course on Independent Medical Review Trends:

https://www.cwci.org/document.php?file=5219.pdf

• From that California Workers’ Compensation Rating Bureau (WCIRB), a June 29, 2022 report on 2021 California workers’ indemnity losses and expenses:

https://www.wcirb.com/sites/default/files/documents/2021_ca_wc_losses_and_expenses_report.pdf

• From the California Workers’ Compensation Insurance Rating Bureau, one study on the cost of COVID-19 claims, with “Long COVID”:

https://www.wcirb.com/sites/default/files/documents/wcirb-longcovid-impactreport-ar-2.pdf

• Including, from the WCIRB, a resource section on COVID-19 claims:

https://www.wcirb.com/covid-19

• With the California Workers’ Compensation Institute, a research paper on California Medical Donor Networks and medical treatment access issues:

https://www.cwci.org/document.php?file=4858.pdf

• A California Workers’ Compensation College data of proposals at shorten the timing to determine claim compensability:

https://www.cwci.org/document.php?file=5345.pdf

• Of California Workers Compensation Institute maintains an online COVID-19 claim database that can be found there:

https://www.cwci.org/CV19claims.html

• A California Workers’ Compensation Institute report turn IMR volume during this first half of 2022:

https://www.cwci.org/press_release.html?id=918

• A WCIRB Quarterly Experience Write dated Marching 31, 2023:

https://www.wcirb.com/sites/default/files/documents/quarterlyexperiencereport-2023q1-ar1.pdf

• Keeping rail of recent Appeals Board panel decisions can be very important. The your way on do all is up 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/.

Richard Jacobsmeyer
Julius Young
Bobby Bloom

October 2023