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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
  2. See the DWC Newsline containing the announcement at:
  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
  4. See the DWC Newsline containing the announcement at:
  5. This en banc decision is available at:

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:

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.


  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: It directs you to the CourtCall website:
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: 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

Topics: Events

Urgent Report - Skelton v. WCAB: No Temporary Disability While Attending Medical Treatment Appointments

Posted by Sure S. Log on Sep 17, 2019 3:20:00 PM

A California Court of Appeal ruling this month held that an industrially injured employee may not receive temporary disability benefits when he or she takes time off from work to attend medical treatment appointments.


Labor Code 4600(e)(1) states, "When at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, the employee submits to examination by a physician, he or she shall be entitled to receive, in addition to all other benefits herein provided, ... one day of temporary disability indemnity for each day of wages lost in submitting to the examination."

In Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal. 4th 1281, 1295. the California Supreme Court explained that "this benefit is in the nature of a medical-legal benefit, reimbursing the employee for his time when requested to submit to a medical examination to resolve a compensation claim." So, although § 4600 generally relates to medical treatment, the Supreme Court interpreted the benefit in § 4600(e)(1) as relating to medical-legal expenses.

In that case, the Supreme Court held that an employee was not entitled to temporary disability benefits while pursuing medical treatment for a permanent and stationary injury. It also held that the employer did not discriminate against the employee within the meaning of § 132a by requiring the employee to use sick leave and vacation leave when he was away from the workplace seeking treatment for his permanent injury.

The Supreme Court, however, did not specifically address whether an employee was entitled to temporary disability benefits for missing work to attend medical appointments before permanent and stationary status. Although the WCAB confronted the issue in one case,[1] for 16 years after Lauher there was no binding authority.

Then, on Sept. 5, 2019, the 6th District Court of Appeal in Skelton v. WCAB [2] held that an employee was not entitled to temporary disability indemnity arising from time off work to attend medical treatment appointments.


In Skelton, an employee filed claims for two separate injuries. She was placed on modified work and continued working after each injury. Her work hours were not flexible, and she could not visit her doctors on weekends. She initially used her sick and vacation leave, but eventually her paycheck was reduced for missed time at work.

The employee sought reimbursement for her wage loss to attend medical treatment and medical-legal evaluations. The WCAB concluded that pursuant to § 4600(e)(1) and Lauher, the employee was entitled to one day of temporary disability indemnity for each day of wage loss in submitting to a medical-legal evaluation, but not for a medical treatment appointment. This decision was upheld by the appellate court.


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Citing other cases, the 6th District Court of Appeal explained, "The purpose of temporary disability indemnity is to provide interim wage replacement assistance to an injured worker during the period of time he or she is healing and incapable of working" (emphasis added). In addition, "The employer’s obligation to pay temporary disability benefits is tied to the employee’s actual incapacity to perform the tasks usually encountered in one’s employment and the wage loss resulting therefrom" (emphasis added). In that case, the court found that the employee returned to work full time after her injuries and subsequently took time off from work because she could not schedule medical treatment during nonwork hours. It found that neither the employee's time off from work nor her wage loss were due to an incapacity to work. Instead, they were due to scheduling issues and her employer’s leave policy. The court concluded that because the employee's injuries did not render her incapable of working during the time she took off from work and suffered wage loss, she was not entitled to temporary disability indemnity for that time off or wage loss.

The case originally was issued as an unpublished decision on Sept. 5, 2019, but on Sept. 16, 2019, the court ordered publication of the case.


It is well-established that employers are generally liable for any subsequent injuries that are a compensable consequence of the original industrial injury. As a result, injured employees often feel that employers should be liable for any and all consequences of an industrial injury.

In Lauher, however, the Supreme Court held that employees were not entitled to temporary disability benefits or wage loss while pursuing medical treatment after becoming permanent and stationary. Now, in Skelton, the 6th District Court of Appeal has held that employees are not entitled to those benefits while pursuing medical treatment after returning to work, even if they are not yet permanent and stationary.

Both Lauher and Skelton explained that the workers' compensation system does not provide a make-whole remedy, and that in exchange for the blanket coverage of compensation without regard to fault, the employee bears some of the burden. So, employees aren't entitled to any and all loses as a result of an industrial injury –– they are expected to suffer some loss as a result of an industrial injury.

Accordingly, employees are not entitled to schedule medical treatment appointments for an industrial injury during working hours. If an appointment is scheduled during that time, an employer does not necessarily violate the Labor Code by requiring an industrially injured employee to use sick and vacation leave to attend the appointment. And, if an employee does not have any sick and vacation leave, he or she may be required to forgo any payment to attend the medical treatment appointment.


  1. SeeWard v. WCAB(2004) 69 CCC 1179 (writ denied).

  2. 2019 Cal. App. LEXIS 874

Topics: Press Releases

Liability for the Supplemental Job Displacement Benefit

Posted by Sure S. Log on May 23, 2019 3:13:45 PM

For injuries occurring on or after Jan. 1, 2004, an employee who suffers residual effects from an injury and is unable to return to work is entitled to a supplemental job displacement benefit. The benefit comes in the form of a nontransferable voucher, and often is referred to by practitioners simply as the "voucher."

Prior to 2013, an employer was liable for the voucher if it did not offer permanent, modified or alternative work meeting certain requirements within 30 days of the termination of temporary disability indemnity payments. Because of the statutory limits on temporary disability, it was not uncommon for temporary disability payments to end even before an employee was deemed to be permanent and stationary. So, as part of SB 863, the California Legislature changed the point at which the benefit is triggered.

For injuries on or after Jan. 1, 2013, in order to avoid liability for the voucher, Labor Code 4658.7(b)(1) requires an employer to offer regular, modified or alternative work "no later than 60 days after receipt by the claims administrator of the first report received from either the primary treating physician, an agreed medical evaluator, or a qualified medical evaluator, in the form created by the administrative director ..., finding that the disability from all conditions for which compensation is claimed has become permanent and stationary and that the injury has caused permanent partial disability" (emphasis added).

The Legislature considered the "form created by the administrative director" to be a "mandatory attachment to a medical report to be forwarded to the employer ... for the purpose of fully informing the employer of work capabilities and of activity restrictions resulting from the injury that are relevant to potential regular work, modified work, or alternative work" (LC 4658.7(h)(2)).

Accordingly, the administrative director adopted California Code of Regulations, Title 8, 10133.31; subsection (b) specifies that an employer's duty to offer regular, modified or alternative work is "no later than 60 days after receipt by the claims administrator of the Physician's Return to Work & Voucher report (Form DWC-AD 10133.36) ...." The Physician's Return-to-Work & Voucher Report (RTW Report) requires a physician to specify an injured employee's work restrictions. It also allows physicians to consider a job description and specify whether an employee's work capacity is compatible with the physical requirements of the job. It is intended to make it easier for employers to determine when they should begin investigating whether work is available to an injured worker and clearly delineate the work restrictions that must be considered.

Although the RTW Report was adopted effective Jan. 1, 2014, physicians still frequently fail to complete the form. It is not uncommon for an injured worker to be declared permanent and stationary without the form being completed by any physician. Accordingly, if an employer's duty to investigate liability for the voucher is never triggered, can an employer be liable for the voucher?

In Fndkyan v. Opus One Labs, 2019 Cal. Wrk. Comp. P.D. LEXIS 51, the WCAB held that it could. The WCAB recognized that the RTW Report is described by § 4658.7(h)(2) as a "mandatory attachment" to a medical report. In that case, however, it was undisputed that the defendant received the QME report, which informed the defendant that the applicant was permanent and stationary and of the applicant's work capabilities and restrictions. The WCAB determined that because the QME report provided the information required by the RTW Report, it would "place form over substance" to require the RTW Report. So, even though it was undisputed that there was no evidence that the RTW Report was sent to or received by the defendant, the WCAB concluded that the applicant was entitled to the voucher.

The WCAB's decision can still be challenged to the extent that the Labor Code and administrative regulations specify that an employer's liability for the voucher is triggered by receipt of the RTW Report. In Honeywell v. WCAB (Wagner) (2005) 35 Cal. 4th 24, the California Supreme Court explained that when a statute is clear and unambiguous, the WCAB may not depart from it. In that case, the Supreme Court held that the 90-day investigation period starts on receipt of the filing of the claim form per § 5402(b), based on the clear statutory language, not on the employer's knowledge of the injury. Accordingly, because § 4658.7(b)(1) specifies that the 60-day period starts on receipt of the RTW Report, employers may argue that liability for the voucher also doesn't begin until they receive the RTW Report.

But it must be considered that CCR § 10109(a) requires a claims administrator to "conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for workers' compensation benefits." Subsection (b) specifies, "A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee." So if an employer receives information that an employee may be entitled to the voucher, it must attempt to obtain information needed to determine whether the voucher must be provided.

Accordingly, if an employer receives a permanent and stationary report from a physician, but the physician does not complete a RTW Report, the employer may request one if it does not believe it has enough information to determine whether permanent, modified or alternative work is available. On receipt of the RTW Report, the employer would then have 60 days to make an offer of work. But, if an employer receives the necessary information to make an offer of work, even if it is not on the required form, it cannot avoid liability for the voucher by its own inaction.

Topics: Press Releases