Sullivan on Comp Blog

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.

This created problems for employers who were accommodating injured workers before the COVID-19 pandemic. An employer generally is able to avoid paying temporary disability benefits by offering modified work to an employee who is injured at work. But if an employer is forced to close due to COVID-19, it has no work to offer. So, many employers disputed whether they were required to pay temporary disability benefits when they were accommodating modified duty prior to the COVID-19 pandemic.

In the aptly titled decision, Corona v. California Walls, Inc, dba Crown Industrial Operators, 2020 Cal. Wrk. Comp. P.D. LEXIS 256, the WCAB held that temporary disability benefits must be paid in that situation.

FACTS OF THE CASE

In Corona, the applicant sustained an accepted injury to his knees Feb. 19, 2020. He was placed on modified duty, and the employer accommodated his work restrictions.

On March 16, 2020, the employer sent all employees home due to state and local emergency orders related to COVID-19. The applicant did not work from March 17, 2020, through May 10, 2020, and did not receive any state or federal benefits related to COVID-19 during that period. The parties disputed whether the applicant was entitled to temporary disability benefits.

THE WCAB'S DECISION

The WCAB upheld an order finding that the applicant was entitled to temporary disability indemnity during the time when the employer was required to shut down. The WCAB recognized that it was dealing with an “unprecedented circumstance,” because the COVID-19 stay-at-home orders “placed all employees out of work, including applicant.” Nevertheless, citing several writ-denied cases, the WCAB found that to avoid liability for temporary disability benefits, the employer must meet the burden of proving that a temporarily partially disabled employee was terminated for good cause

The WCAB found that “applicant’s termination from employment was not for cause, or due to his own misconduct, but was due to COVID-[19] shelter-in-place orders.” So, it found that the employer did not meet its burden to show that it was released from paying the applicant temporary disability benefits during the period in question.

The fact that it was impossible, the WCAB added, for the employer to offer modified duties to the applicant because of the COVID-19 orders was inconsequential. It cited its en banc decision of Dennis v. State of California — Department of Corrections and Rehabilitation Inmate Claims (2020) 85 CCC 389, which held that an employer’s inability to offer regular, modified or alternative work does not release it from the obligation to provide a supplemental job displacement benefits voucher. It stated that “an employer’s inability to accommodate a temporarily disabled employee’s work restrictions does not release it from its obligation to pay temporary disability benefits.” So, the WCAB concluded, “applicant is entitled to temporary disability benefits regardless of whether defendant is able to provide modified work."

ANALYSIS OF THE DECISION

Corona doesn't back away from earlier decisions holding that an employer may avoid liability for temporary disability benefits if an employee on modified duty is terminated for cause. But the WCAB did not believe that the applicant was terminated for cause or due to his own misconduct.

Although workers’ compensation is generally a no-fault system, the WCAB believes that there must be an element of fault on the applicant’s part before temporary disability benefits may be denied during a period of temporary partial disability. When the inability to accommodate work restrictions is the fault of neither the applicant nor the employer, the WCAB believes that the employer must bear the risk. So, although COVID-19 affects both employers and employees, the WCAB believes that employers must provide temporary disability benefits to injured workers, even if they cannot operate due to stay-at-home orders.

Employers might argue that paying temporary disability benefits to injured workers in this situation elevates their rights beyond those of noninjured workers. Because Corona is not binding, employers may continue in good faith to dispute liability for temporary disability benefits under similar circumstances

Nevertheless, unless and until an appellate court decides this issue, Corona is probably indicative of how these cases will be decided at the WCAB level moving forward. The Corona decision was issued Sept. 25, 2020, and the employer has until Nov. 9, 2020, to appeal.

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.

Labor Code §3602 states, "Where the conditions of compensability set forth in Section 3600 concur, the right to recover such compensation is ... the sole and exclusive remedy of the employee or his or her dependents against the employer."

The exclusive remedy rule does more than just establish the jurisdiction of the WCAB. The purpose of the exclusive remedy rule is to protect the employer from unlimited liability for the industrial injuries of its employees –– to protect the employer's side of the compensation bargain.

Under the compensation bargain, the employer assumes liability for industrial injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in civil court.

FACTS OF THE CASE

On March 13, 2011, the California Highway Patrol (CHP) received a phone call from a female caller who whispered, "Help me." The call was relayed to the Trinity County Sheriff's Department, which was almost 100 miles away from the caller. A deputy sheriff knew that the Gunds lived near the caller. He called Norma Gund and explained to her that the neighbor had called 911. He asked if Mrs. Gund would check on the neighbor, because he was still hours away. The deputy also asked if Mr. Gund was home, and when Mrs. Gund said no, he told Mrs. Gund not to go to the neighbor's home by herself.

When Mrs. Gund asked what was said in the 911 call, the deputy sheriff responded, "Help me." The deputy sheriff did not tell Mrs. Gund that the caller had whispered, that the CHP dispatcher believed she had been trying to call secretly or that the dispatcher's return calls went straight to voicemail. The deputy then mentioned the impending arrival of a major storm, which "must be what this is all about," and stated, "It's probably no big deal."

Believing the emergency to be weather related, the Gunds went to the neighbor's home. Mrs. Gund went in while Mr. Gund stayed in the truck. Mrs. Gund was attacked by a man who had just killed the neighbor and her boyfriend. Mr. Gund heard the commotion, entered the home and saw the man holding down his wife and cutting her throat with a knife. The man then attacked Mr. Gund by tasing him, punching him and cutting his throat. Despite their injuries, both the Gunds were able to escape.

The Gunds later filed a civil action against Trinity County (the County) and the deputy sheriff, alleging that the deputy had sought to secure their assistance by falsely assuring them the neighbor's call was probably weather related and knowingly withholding pertinent facts. The County and deputy sheriff asserted that workers' compensation was the exclusive remedy because they sustained their injuries while engaged in active law enforcement service under LC 3366. The Gunds argued that §3366 did not apply because of the deputy sheriff's alleged misrepresentations, and because they did not understand themselves to be engaged in “active law enforcement service” when they complied with his request.

THE COURT'S DECISION

The California Supreme Court majority upheld the Court of Appeal's decision that workers’ compensation was the Gunds’ exclusive remedy. It explained that under LC 3366, a civilian is entitled to workers' compensation from a public entity if: (1) a peace officer asked for assistance with a task that qualifies as active law enforcement; and (2) the civilian was injured while engaged in that requested service. The majority found that there was no dispute that the Gunds assisted at the request of peace officer –– the only dispute was whether the requested assistance involved "active law enforcement services." The majority concluded that responding to a 911 call for unspecified help was "active law enforcement” for the purposes of §3366.

The majority explained that although “active law enforcement service” does not include every conceivable function a peace officer can perform, it concluded that the phrase includes a peace officer’s duties directly concerned with functions such as enforcing laws, investigating and preventing crime and protecting the public. It stated, "An overly narrow interpretation of active law enforcement service, or one that turns on subjective factors, would leave without recourse many individuals injured while obliging a peace officer’s request for assistance, undermining its civilian-protective purpose."

The majority said, "The workers’ compensation model makes the public agency liable for the costs of the injuries of people assisting police with requested active law enforcement service, whether or not the requesting officer was ultimately at fault." It added, "The simpler, quicker availability of these benefits can incentivize individuals to oblige a peace officer’s request for help, because they will ostensibly be less concerned with the financial consequences of potential injury or death."

The majority concluded that the Gunds were deemed to be employees under LC 3366 because responding to a 911 call of an unknown nature was "active law enforcement” under §3366. It rejected the Gunds argument that whether they engaged in active law enforcement depended in part on what they subjectively believed to be true about the 911 call. It stated, "Determining whether an individual provides active law enforcement service remains an objective inquiry."

It added that the deputy sheriff's omissions or misrepresentations did not change the conclusion. "Even when an employer intentionally conceals and misrepresents hazards in order to induce an individual to accept employment," it explained, "workers’ compensation is the individual’s exclusive remedy." The majority also stated that "allowing allegations of misrepresentation to take claims like this outside the workers’ compensation system would disturb the carefully balanced scheme the Legislature designed." It concluded, "Simply alleging a request for assistance contained a misrepresentation, without more, does not preclude application of section 3366 and the exclusivity provision."

In a dissenting opinion, Justice Groban disagreed that the deputy sheriff asked the Gunds to perform an active law enforcement task. He believed it was objectively reasonable for the Gunds to believe they were asked to render neighborly assistance with a relatively risk-free, weather-related problem. He would hold that the Gunds were not subject to §3366.

ANALYSIS OF THE DECISION

The California Supreme Court no doubt recognized that this was a "tragic case." By limiting the Gunds' recovery to workers' compensation benefits, the majority understood that the Gunds would not receive all of the remedies available to them in a civil tort claim.

Their decision was no doubt made more difficult by the omission and/or misrepresentations of the deputy sheriff. There is no question that the Gunds would not have gone to their neighbor's house unprepared, nor would Mrs. Gund have entered the house alone, if they did not subjectively believe the 911 call was anything more than weather related. Moreover, the Gunds never knew, or even considered, that their civil remedies would be taken away by responding to the 911 call on the deputy's request.

Nevertheless, the majority recognized that their decision would affect not just the Gunds, but other workers as well. They explained, "[W]e cannot fashion a rule that somehow shrinks the scope of workers' compensation for the Gunds ...." Moreover, the majority recognized that workers' compensation benefits were far from meaningless, and that in most cases, such compensation provides a much simpler and quicker path for injured civilians to be compensated.

Employers and insurers often believe that workers' compensation benefits are too easy to obtain. They often feel that the system is too liberal. It's easy to forget that injured workers give up the right to greater recovery in civil courts in exchange for the limited benefits available in the workers' compensation system. It's easy to forget that the exclusive remedy rule becomes a shield when employees file civil claims. The Gund decision is a reminder that in some cases, workers' compensation benefits may not be adequate.

Gund may be obtained from the California courts' website at: https://www.courts.ca.gov/opinions/documents/S249792.PDF.

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/.