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Remote Depositions in Response to COVID-19

Posted by Sure S. Log on Mar 27, 2020 2:00:00 PM

Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order on March 19, 2020. It requires all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Services that remain open include grocery stores, gas stations, pharmacies, banks, laundromats and many government and public service functions, including law enforcement, emergency services and utility maintenance and repair.[1]

Even after the executive order is lifted, maintaining social distancing will be critical to avoid contracting COVID-19. The workers' compensation community is not excused from this protection. Accordingly, if the deposition of an injured worker or other person is necessary to investigate a claim, attorneys should consider conducting it remotely.

Code of Civil Procedure 2025.310(a) states, "A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means." A party is not required to obtain the consent of the other party or the court before scheduling a deposition by telephone or other electronic means. California Rules of Court, rule 3.1010(a) states, "Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:

    1. Notice is served with the notice of deposition or the subpoena;

    2. That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it; and

    3. Any party may be personally present at the deposition without giving prior notice."

So, in order to take a deposition by telephone, videoconference or other remote electronic means, a party is required only to serve notice that it intends to do so, and to arrange for any other party to participate in an equivalent manner. Rule 3.1010(b) allows any party to appear by telephone, videoconference or other remote electronic means if it serves written notice of such appearance by personal delivery, e-mail or fax at least three court days before the deposition, and makes all arrangements and pays all expenses incurred for the appearance.

Labor Code 5710 provides that depositions in workers' compensation proceedings are "to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state ...." The WCAB has recognized that remote depositions are allowed in workers' compensation proceedings. (Simmons v. Just Wingin' It, Inc. (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 48.)

Note that although the attorneys and other individuals, such as an employer representative, may appear at a deposition remotely, a party deponent may not. Code of Civil Procedure 2025.310(a) states "any person other than the deponent may attend" a deposition remotely (emphasis added). Moreover, § 2025.310(b) states, "A party deponent shall appear at the deposition in person and be in the presence of the deposition officer."

Similarly, California Rules of Court, rule 3.1010(c) states, "A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer." Rule 3.1010(d), in contrast, states, "A nonparty deponent may appear at his or her deposition by telephone, videoconference, or other remote electronic means with court approval upon a finding of good cause and no prejudice to any party." So, although the rules require party deponents (that is, injured workers or employers) to appear at a deposition in person with a court reporter, a nonparty deponent (for example, a doctor or co-worker) may appear remotely with a court order.

Neither the Code of Civil Procedure nor the California Rules of Court discusses whether the parties may waive the requirement that a party deponent appear at the deposition in person. Because the spread of COVID-19 is deemed to be an emergency, there seems to be no reason why the parties may not also agree to allow a party deponent to testify remotely.

Per California Rules of Court, rule 3.1010(e), "On motion by any person, the court in a specific action may make such other orders as it deems appropriate." So if the parties waive the requirement for a deponent to appear in person, it probably will be supported by the WCAB. Any agreement should be confirmed in writing in advance to avoid any misunderstandings.

Obviously, there are many good reasons for attorneys to be physically present during depositions — they can observe the deponent's demeanor, or present him or her with physical evidence, such as a medical report, that offers a contrary view to the testimony. But, at present, these considerations should yield to public safety. Remote depositions must be considered for the foreseeable future in order to protect the injured worker, the attorneys and the community as a whole.

  1. See https://covid19.ca.gov/stay-home-except-for-essential-needs/.

Topics: Special Reports, COVID-19

The Impact of The Families First Coronavirus Response Act on Employers with Fewer than 500 Employees

Posted by Eric H. De Wames on Mar 23, 2020 2:00:00 PM

On March 14, 2020, the House passed the Families First Coronavirus Response Act (H.R. 6201). On March 18, 2020, the Senate passed the bill which was significantly revised from its original form. President Trump signed it into law the same day. The effective dates of these provisions are from April 1, 2020 through December 31, 2020.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

This law amends and expands the Family and Medical Leave Act (FMLA) to require all private employers with fewer than 500 workers even employers who were not otherwise covered under the original FMLA to provide leave to workers who need to care for children without schooling or day care because of COVID-19. Additionally, the universe of eligible employees is expanded to those who were employed with the employer for at least 30 days prior to the start of the leave (compared to one year for the typical FMLA claim).

The first 10 days of the leave is unpaid (unless the below Emergency Paid Sick Leave applies), and employees can (but are not required to) apply accrued paid time off benefits to that period. After this 10-day period, employers must provide paid family leave up to $200/day or $10,000 in the aggregate.

Emergency FMLA leave taken is generally job-protected, meaning the employer must restore employees to their prior positions (or an equivalent) upon the expiration of their need for leave. The bill includes an exception to this requirement for employers with fewer than 25 employees, if the employee's position no longer exists following leave due to operational changes occasioned by a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.

Emergency Paid Sick Leave Act (EPLSA)
This component of the law requires all employers with fewer than 500 employees to pay emergency sick leave to employees under any of the following categories:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to a Federal, State or Local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is caring for their own child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.


Employees who are themselves subject to governmental quarantine or isolation orders or medical care for COVID-19 symptoms or diagnosis max out at $511 per day or $5,110 in the aggregate. Employees caring for family members subject to government or medical provider quarantine or isolation orders or children whose schools or day care centers closed due to COVID-19 precautions are paid out at two thirds their regular rate and max out at $200 per day or $2,000 in the aggregate. The emergency paid sick leave benefit caps at 80 hours for full-time workers or the average number of hours across a two-week period for part-time employees.

The bill includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The bill further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

Employer Tax Credit
Although these benefits are paid initially by the employer, tax credits are equal to 100% of the emergency paid family medical leave or emergency paid sick leave paid by employers per quarter. If the tax credits exceed the employer's actual tax liability, the employer will receive a refund for the difference.

Small Business Exception
Employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it "would jeopardize the viability of the business."

Action Items
In order to comply with this new law, Employers will need to do the following:

  • Starting April 1, 2020, satisfy the posting requirements for FFCRA, which may include circulating to all employees by email and/or mail for those not in-office due to any of the above conditions.
  • Accurately track leaves of absence (e.g., FFCRA, FMLA, CFRA, PTO, etc.) identifying which leaves are being applied and for what duration. Notify and properly designate these leaves at their onset.
  • Ensure wage statements accurately reflect and itemize wages paid by these benefits.
  • Take actions to confirm that managers and supervisors understand and follow the anti-retaliation components of these laws.
  • Reinstate employees after leave as required by the law.

     

Topics: Red Alerts, COVID-19

WCAB Emergency Actions in Response to COVID-19

Posted by Sure S. Log on Mar 19, 2020 2:00:00 PM

The novel coronavirus, now called COVID-19, is spreading rapidly around the world. There are confirmed cases in every state in our union. Everyone has a duty to act proactively to prevent the spread of the disease.

In addition to other measures, the Centers for Disease Control and Prevention recommends "social distancing," which it defines as "remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters) from others when possible." It defines "congregate settings" as "crowded public places where close contact with others may occur, such as shopping centers, movie theaters, stadiums."[1]

Accordingly, the Division of Workers' Compensation (DWC) and the Workers' Compensation Appeals Board (WCAB) have taken emergency action to limit the number of people who appear at the WCAB district offices around the state.

On March 16, 2020, the DWC and WCAB announced a modified hearing calendar and emergency rules on filing.[2] From March 17 through March 20, the DWC will hold only expedited hearings at the district offices. All other hearings will be continued and issue notices of new hearing dates.

From March 23 through April 3, the DWC will continue to hold expedited hearings at district offices. But status conferences, mandatory settlement conferences and priority conferences will be conducted only via CourtCall.[3] Parties will not be penalized for failing to appear via CourtCall. Instead, if parties do not appear via CourtCall, the case will be continued with notice given. All other hearings will be continued, and no trial or lien conferences will be conducted during this period.

From March 17 through April 3, documents cannot be physically filed at the district offices. The DWC will not accept walk-through documents until the district offices are reopen for filing purposes. Parties may utilize EAMS to file documents online. Parties also may mail settlement documents and petitions to the district offices with venue.

On March 17, 2020, the DWC announced that it would temporarily close its San Jose, Oakland and San Francisco district offices. DWC headquarters, which includes the Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefits Trust Fund and Legal Unit, also will be closed temporarily.[4]

On March 18, 2020, the WCAB issued an en banc decision temporarily suspending specified WCAB Rules of Practice and Procedure.[5] The suspension applies to all district offices and to these rules:

  1. Cal. Code Regs., Title 8, former §§ 10562, 10563, 10563.1; current §§ 10755, 10756, 10888 (effective Jan. 1, 2020): Dismissal of an application or lien claim for failure to appear is suspended.

  2. Cal. Code Regs., Title 8, former §§ 10860, 10865, 10866; current §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (effective Jan. 1, 2020): Workers' compensation judges (WCJs) and arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal.

  3. Cal. Code Regs., Title 8, former § 10408; current § 10500(b)(6) (effective Jan. 1, 2020): Suspension of the requirement in the Compromise and Release (C&R) agreements for signatures from two witnesses. Signatures on the forms from all parties may be electronic.

  4. Cal. Code Regs., Title 8, former § 10500; current § 10628 (effective Jan. 1, 2020): Suspension of the requirement for service by mail by the WCAB. Service by the WCAB may be made electronically with or without parties' consent.


The WCAB also announced that, in accordance with the Newsline, all of the DWC's district offices are closed for filing from March 17 through April 3; all filing deadlines are extended to the next day when the district offices reopen for filing.
The obvious intent of these actions is to prevent people from gathering at the district offices, while making sure that those who might be affected do not lose their due process right to pursue or appeal an action. Because the WCAB no longer requires a C&R to be witnessed and allows all forms to be signed electronically, the WCAB allows settlements by parties who might be required to self-isolate.

There are some issues with the WCAB's decision that "all filing deadlines are extended to the next day when the district offices are open for filing." This statement presumably extends the time for filing petitions for reconsideration, petitions to reopen or documents subject to a statute of limitations. But will the WCAB require such documents to be filed on the date the district offices are open for filing? Will the WCAB give parties additional time beyond the opening of the district offices? What if some district offices are open for filing sooner than others? These questions will need to be clarified by the WCAB.

These actions are not likely to be the last we will see from the DWC or WCAB in response to the coronavirus. The WCAB's emergency order also does not specify how long the rules will be suspended. Given that nobody really knows how long the COVID-19 crisis will last, it is safe to assume the order will remain until lifted by a subsequent order.

 

  1. See the CDC's recommendations at https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.
  2. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.
  3. For a detailed discussion regarding the use of CourtCall, see the article published by "Sullivan on Comp" on March 17, 2020, "DWC Orders Modified Hearing Calendar and Change in Filing Procedures" at https://app.sullivanoncomp.com/commentaries/2020-03-dwc-orders-modified-hearing-calendar-and-change-in-filing-procedures.
  4. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-19.html.
  5. This en banc decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19.pdf.

Topics: Red Alerts, COVID-19

DWC Orders Modified Hearing Calendar and Change in Filing Procedures

Posted by Sure S. Log on Mar 17, 2020 9:00:00 AM

The DWC has decided to take direct action to help contain the corona virus. Here is the notification they sent today: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.

Court Dates & Appearances

In summary:

  1. All court appearances, with the exception of expedited hearings, are cancelled from tomorrow until the rest of the week. They will be continued, and the board will send notice by mail of the new dates, within the next five days.

  2. For the two weeks after that (March 23 through April 3) the board will hear expedited hearings. They will also hold status conferences, mandatory settlement conferences, and priority conferences, but via CourtCall only. If the parties do not appear via CourtCall the case will be continued and notice will be given. No trials and lien conferences will be heard over this period. Presumably, new dates will be sent out by the board.

  3. For all three weeks (tomorrow through April 3) parties cannot file documents with the board. All filing deadlines will be extended thorough April 6.

  4. For this period also, the board will not accept walk-through documents. Documents may be filed online through EAMS. Parties may also mail in settlement documents or petitions.

Also:

  1. The April 18 QME exam has been cancelled.

  2. In an e-mail message today, CAAA advises that: "CAAA Executive Director Diane Worley asked Chief Judge Paige Levy whether injured workers can be excused from appearing during this period if it would jeopardize their health. Chief Judge Levy advised that would be acceptable, and they can participate through technology such as Facetime or Skype if testimony is required."

  3. CAAA also reports that "There will be no penalties for a non-appearance during this time period as some people are having difficulties setting up Court Call as they are being inundated with requests."

And that's just for now. They may extend or make other changes.

CourtCall & How It Works

Naturally this makes for a lot of challenges. One in particular is CourtCall. This is a device long used by the board, but not used a lot. How does CourtCall work? To start, there's no law on this. The WCAB hasn't adopted any regulations for the use of CourtCall. The only information about it on the DWC website is at this link: https://www.dir.ca.gov/dwc/DWC_address/CourtCall.html. It directs you to the CourtCall website: https://courtcall.com/.
We have put together a briefing on how court call works as follows:

What is CourtCall?

CourtCall is a Remote Appearance platform used by participating Courts and Judges primarily for Status Conferences. During this public health crisis, all WCAB locations are accepting CourtCall and have expanded its use to include Mandatory Settlement Conferences and Priority Conferences. CourtCall charges a flat-fee of $66 per appearance. A credit card is needed to schedule the hearing online but the scheduler is charged after the hearing takes place.

How is It Set Up?

CourtCall coordinates with Judges and Judges' assistants to setup telephonic appearances in lieu of in-person appearances. Law firms must register their attorneys either individually or using one of the other available options. If using Bulk Attorney, please make sure to list the attorney's assistant as the scheduler, as they will need to have access.

How Does It Work?

The scheduling party receives a CourtCall confirmation via email with date/time of hearing, call-in information, and further details. The email includes a receipt in PDF format which should be shared with all parties except WCAB. It lists the dial-in information and instructions. All participants need to call in 5 minutes before the scheduled hearing. CourtCall does not call the parties. If you are calling in late and the call is already in session, please wait to announce yourself.

Participants must be in a location where they are able to email documents to the WCAB and/or other parties. Please identify yourself each time you speak.

How to Register

Using any browser, go to: https://courtcall.com/ or call 888-882-6878.

Select Register then select Type of Registrant.

Once registered, the attorneys will receive an email confirmation which states "Instructions for activating online access will be sent..." to them separately within 1 business day.

After receiving your account information, an attorney or attorneys' assistant can login to CourtCall to check which appearances are available for CourtCall. Reminder: you can call 888-882-6878 to schedule CourtCall as well.

Please have the following ready:

  • Case Name & ADJ #

  • Date & Time of appearance

  • Judge's Name

  • Defense Attorney

  • Applicant's Attorney

Login & Select New Appearance

Once you select the County, Court, and Judge, you will be taken to a list of available upcoming appearances. Select the hearing you are looking for.

If you receive the error message, "Online scheduling is not currently available for this Judge/Dept. Please call us at (888) 882-6878 for more information." Call the indicated number.

Topics: Red Alerts, COVID-19

Special Report: Workers' Compensation Liability For The Coronavirus

Posted by Sure S. Log on Mar 9, 2020 3:51:20 PM

As is now common knowledge, Covid-19, commonly called the "novel coronavirus" or just the "coronavirus," is spreading rapidly across the many parts of the world, including California. Countries around the world are taking dramatic steps to combat the spread of the virus. What does this mean for workers' compensation in California?

Opinions vary as to how severe this threat is, but any controversy aside, steps are being taken. With the number of confirmed cases in California increasing, on March 4, 2020, California Governor Gavin Newsom declared a state of emergency to slow the spread of coronavirus. Governor Newsom explained the declaration was intended to help California prepare for and contain the spread of the coronavirus by allowing state agencies to more easily procure equipment and services, share information on patients and alleviate restrictions on the use of state-owned properties and facilities.[1]

While governments around the world fight against the spread of the coronavirus, employers in California must also take action to protect their employees against the spread of the disease. Otherwise, they could potentially be liable for injuries or death caused by the virus.

Like the common cold or the flu, the coronavirus would be considered a nonoccupational disease, which is one that is not contracted solely because of an exposure at work or because it is related to a particular type of work. Generally, injuries from nonoccupational diseases are not compensable. As with much of the AOE/COE law in California, however, there are significant exceptions. The law is discussed in depth in Sullivan On Comp Section 5.9 Occupational Disease. A look at the binding case law is in order.

Just catching the disease at work will not be enough in and of itself to establish compensability. The Supreme Court of California explained in Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 654, that "[I]n the area of nonoccupational disease, '[t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.'" The court explained, "The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease." (Ibid.)

Nevertheless, there are two exceptions to the general rule of noncompensability for nonoccupational disease. An injury resulting from a nonoccupational disease may be compensable if:

1) The employment subjects the employee to an increased risk compared to that of the general public; or

2) The immediate cause of the injury is an intervening human agency or instrumentality of the employment.

The first exception is exemplified by the case of Bethlehem Steel Co. v. Industrial Acci. Com. (1943) 21 Cal.2d 742. In that case, employees working in shipyards contracted the contagious eye disease known as kerato conjunctivitis. Although there was evidence the disease was also epidemic in San Francisco, the Supreme Court found the evidence "quite convincing that the disease in the community outside of the shipyards was of much less proportion compared to the population." It found "the epidemic in the shipyards constituted a special exposure in excess of that of the commonalty." (Id. at pp. 749-750.) Therefore, the Supreme Court found evidence that the employees' risk of contracting the disease by virtue of the employment was materially greater than that of the general public and affirmed a decision finding the employees' claims compensable.

Thus, if an employee could demonstrate that he or she had a greater risk of exposure at the workplace compared to that of the general public, the courts could find an employee's exposure to the coronavirus compensable. Per Bethlehem Steel, this could be established if the evidence establishes a greater proportion of the employees at the worksite were exposed than the general population such that they were subject to special exposure. If an office or worksite has a higher percentage of coronavirus cases than the general public, then that employer could be liable for injuries or deaths related to the virus.

Another example of the first exception is illustrated by the case of Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt) (1942) 19 Cal.2d 622. There, the California Supreme Court awarded compensation benefits to a traveling salesman who contracted a respiratory illness caused by a mold or fungus that exists in California's San Joaquin Valley and in Arizona, commonly known as San Joaquin Valley fever. Before his employment, the salesman had never been to either region. The court stated, "It was by reason of and incident to his employment that he came in contact with the infection. The risk to which he was subjected by his employment was not the same as that of the public in the endemic area inasmuch as the great majority of the inhabitants there possessed an immunity to the disease which [the employee], living outside the area, lacked." (Id. at p. 630.)

Therefore, if the employment places an employee in a position of greater risk to the coronavirus than the general public, the courts could also find an employee's exposure to the coronavirus compensable. Doctors, nurses, or other health care workers, who are required to treat patients with the coronavirus could potentially file their own workers' compensation claim if they contract the virus. Moreover, employees who are required to work in close proximity to large numbers of people could argue they are subject to an increased risk compared to that of the general public.

The second exception is exemplified by the case of Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729. In that case, a nurse's assistant had pre-existing tuberculosis, which she was required to treat to continue working. While undergoing treatment, she developed a significant adverse reaction to the drugs, and she filed a claim for workers' compensation benefits based on the disability she sustained as a result of her treatment for tuberculosis. The Supreme Court held that an injury caused by employer-required medical treatment for a preexisting, nonindustrial injury is compensable. (Id. at p. 738.)

So, even if the employee cannot establish the coronavirus occurred at work, or even if it was established the infection occurred outside of the employment, per Maher, the employer could be liable if the employment aggravated the condition. This is because of the long-established rule that "an employer takes the employee as he finds him at the time of the employment." (Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 837.) If the coronavirus causes the death of an employee, the death may be compensable so long as the employment was a contributing cause. (See South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291.)

Thus, not only should employers take actions to protect the employees from contracting the coronavirus, they should take actions to make sure that employees who are potentially infected with the virus do not aggravate their conditions at work. The precise actions that need to be taken will vary depending on the nature and needs of the business.

Many businesses are already allowing their employees to work from home. Of course, this is not possible for many businesses and employees. For those who cannot work at home, it goes without saying that employees who are sick should not be permitted to work, particularly if they work with the public. Attendance to what preventative measures may be taken, such as hand sanitizers and the like, or limitations on physical forms of contact, seem to be good ideas. Many employers are withdrawing their employees from public gatherings, such as conventions or meetings, and some are restricting business travel. Whether this sort of thing is necessary or when it may become necessary is a choice each business must make, in light of the overall health and well being of the employees and the business itself. Accordingly, close awareness of the progression of the disease is warranted.

1)  Karlamangla, S. et al. (2020, March 6) A Grand Princess cruise ship was at center of coronavirus fight amid concerns about spread. Retrieved from https://www.latimes.com/california/story/2020-03-04/los-angeles-county-declares-coronavirus-emergency-6-new-cases

Topics: Events