Sullivan on Comp Blog

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.

One of the limits not extended, either by executive order, emergency regulation or court order, was the time limit for an injured employee to use the supplemental job displacement benefit (SJDB) voucher. Pursuant to Labor Code § 4658.7(g), "The voucher shall expire two years after the date the voucher is furnished to the employee, or five years after the date of injury, whichever is later. The employee shall not be entitled to payment or reimbursement of any expenses that have not been incurred and submitted with appropriate documentation to the employer prior to the expiration date."

On March 9, 2022, the Division of Workers’ Compensation (DWC) announced that in-person hearings will resume starting March 21, 2022, at almost all of the DWC district offices. The only exceptions are Eureka, which is now a completely virtual office, and satellite locations Bishop, Marysville, Chico and Ukiah, which also will remain virtual.

The in-person hearings apply only to trials, lien trials, expedited hearings and special adjudication unit (SAU) trials. The DWC will continue to telephonically hear all mandatory settlement conferences, priority conferences, status conferences, SAU conferences and lien conferences via the individually assigned judges’ conference lines.

The U.S. Food and Drug Administration (FDA) has authorized the use of COVID-19 vaccines to enhance people's ability to resist infection by the virus. Vaccines are widely available, and many employers are deciding whether to require employees to be vaccinated (or incentivize them) as a condition for returning to work. For some employees, however, COVID-19 vaccinations are or will be mandated by the government.

The federal Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it's developing a rule requiring all employers with 100 or more employees to ensure that their workforce is fully vaccinated or that workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. In California, certain employees already are required to be vaccinated as a condition of employment. California has ordered that all health-care workers must be vaccinated unless they are exempt for religious or medical reasons. It has also ordered all public and private school employees to either show proof of full vaccination or be tested at least once per week.

On Sept. 1, 2021, the Division of Workers’ Compensation (DWC) announced that in-person hearings will resume starting Oct. 1, 2021, at almost all of the DWC district offices. The only exceptions are Eureka, which is now a completely virtual office, and satellite locations Bishop, Marysville, Chico and Ukiah, which also will remain virtual.

Because of the backlog of medical-legal evaluations caused by the COVID-19 pandemic, the Division of Workers’ Compensation (DWC) adopted emergency regulations for medical-legal evaluations and reporting. The regulations became effective May 14, 2020, and originally were set to expire March 12, 2021. But they have been extended until Oct. 12, 2021.See DIR Newsline dated March 10, 2021.

The COVID-19 pandemic has had significant financial consequences for many employers and employees. Due to the overall need to protect the public at large from the spread of COVID-19, the state of California and many local governments have issued stay-at-home orders, closing nonessential businesses or allowing them to remain open only if their employees could telecommute. Many businesses were forced to shut down during the stay-at-home orders, and many employees found themselves out of work.

On Aug. 27, 2020, in Gund v. County of Trinity, the California Supreme Court issued a decision that highlights what injured workers must give up as part of the compensation bargain.

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]

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.

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: