October 16, 20200

We’re already into October and on our way to a new, and with any luck, better, year.  Halloween is just around the corner, so pick out your costumes if you still have any desire to wear a mask at this point!  Whether you enjoy celebrating Halloween or not, at least take advantage of the one time a year when an adult can eat unhealthy amounts of candy without being judged too harshly.  As usual we’ll be here if you need assistance with any frightening claims.  If you have a workers’ compensation Halloween party to attend, here’s a free costume idea:  a zombie lien.


As reported in our September bulletin, Governor Newsom signed SB 1159 into law on September 17, 2020, meaning that Labor Code 3212.86, 3212.87, and 3212.88 have now been law for around a month.  A full breakdown of SB 1159 was provided in a special bulletin, and we’ve been giving webinars left and right as employers unpack what the new laws mean for them.  We’ve beaten our heads against these statutes so that you don’t have to, so please reach out to us if you wish to schedule together an informational presentation on SB 1159 for your company.

One thing employers should be very aware of is that the deadline for reporting retroactive COVID cases in the workplace under Labor Code 3212.88 to their claims administrator is rapidly approaching.  Under that statute an employer is obligated to report any employees who tested positive on or after July 6, 2020 and before September 17, 2020, when the law was signed.  The employer is required to report all employees who tested positive, the dates they tested positive, the specific addresses of the employees’ specific places of employment during the 14-day period preceding the date of the employees’ positive tests, and the highest number of employees who reported to work at the employees’ specific places of employment in the 73 days between July 6, 2020 and September 17, 2020.  The law prohibits sharing personally identifiable information as to those employees unless the employee is asserting that the COVID is work related.

The data is then to be used by the claims administrators to determine if the presumption applies as to any particular employee in that time period.  Employers only have 30 business days from September 17, 2020 to report this data to their claims administrators.  Please keep in mind that failure to report the required information could subject employers to a $10,000 fine.  If you include a public holiday on October 12, 2020, which is included in the list of holidays set forth in Government Code 6700, then employers have until October 30, 2020 to report the retroactive COVID infections.  Positive test results on or after September 17, 2020 must be reported to the claims administrator within 3 business days.  The data must be reported by electronic mail or facsimile and cannot be put through the regular mail.


It should be noted that Labor Code 3212.88 only applies to pending claims, so if there was a claim in the retroactive time period that was already settled, the new statute does not constitute a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.  That said, it should be noted that a claim that may have been previously denied by the claims administrator could now be subject to the presumption.


In Panel decision of Corona v. California Walls, Inc. (which I suspect the WCAB decided it had to hear after seeing how well the name matched the issue to be resolved), the WCAB answered a question that has surely been raised in a huge amount of claims since shelter in place orders first issued in California on March 17, 2020.  In Corona, the applicant, a warehouse worker, suffered a right shoulder and lumbar spine injury which resulted in a course of treatment and the provision of work restrictions.  The employer was able to accommodate those work restrictions and returned applicant to modified duties for a month, but the employer had to close down upon the issuance of the shelter-in-place orders and was unable to offer work between March 17, 2020 and May 10, 2020.

The Panel found applicant was entitled to benefits under these circumstances, analogizing to cases where the injured worker was terminated (but not for cause) while working with modified duties.  The Panel reasoned that an applicant may well be unable to return to a particular employer for reasons unrelated to his injury, but that an applicant’s ability to obtain other employment may still be related to his inability to find work within his work restrictions.  The Opinion and Order’s logic relied on language set forth in the WCJ’s report and recommendation in the case of McFarland USD v. WCAB (McCurtis) (2015), which cited Labor Code 4657, which addresses temporary partial disability.  That section indicates that due regard must be given to the ability of the injured worker to compete in the open labor market.  The Panel concluded that even where an employer is legally unable to provide modified duties, they are not relieved of their obligation to pay temporary disability benefits.

While the result may be maddening to employers who would otherwise offer modified duties to return an applicant to work and avoid temporary disability liability, a worker who cannot be returned to work due to the shelter-in-place order is roughly analogous to the classic scenario of an employer being unable to provide modified duties due to a closing of the business for any other reason.  Even if a business is completely shuttered, the workers’ compensation carrier may still have to pay out temporary disability even where the applicant had been working at modified duties prior to the closure.  One thing employers and carriers may wish to consider if the employee’s employer is closed is finding return-to-work programs that might be able to place workers in workplaces that are still safely open under shelter-in-place protocols.


For several reasons, September 17, 2020 will remain a memorable day for those of us in the industry. Merely hours after the Governor signed the new Legislation, Mullen & Filippi produced and distributed their flowchart to assist in deciphering the new presumptions. If you did not receive your complimentary copy of the flowchart, please contact Clint Nemmer at cnemmer@mulfil.com to receive one.


This month Jessica Gorton, an Associate Attorney in our Santa Rosa office, provides an extremely thorough summary of the very interesting California Supreme Court case of Gund v. County of Trinity.  In that case, the Supreme Court was tasked with determining when a member of the public becomes engaged in “active law enforcement service,” such that their exclusive remedy for any injury is in workers’ compensation pursuant to Labor Code 3366.  The case arose in the context of a public agency’s request for assistance from a private citizen.  A Trinity County Sheriff had phoned Mr. and Mrs. Gund and asked if they could check on their neighbor who had phoned 911 and stated, “help me.”  When they went to check on their neighbor they were brutally attacked with a knife.  Mr. Gorton provides a thoughtful analysis of the Court’s reasoning in finding, in a 5-2 decision, that workers’ compensation was the exclusive remedy available to the Gunds.

Both the majority opinion and the dissent agreed that to determine whether Labor Code 3366 is applicable a two-prong test must be applied.  The first question is whether a peace officer asked for assistance with a task that qualifies as active law enforcement and the second question is whether the injury occurred while engaged in the test.  The majority and the dissent agree that the first prong is an objective one, and is not satisfied by a purely subjective belief held by the injured party that they had been asked for assistance.

Ms. Gorton sides with the dissenting opinion, arguing that the objective standard was perhaps not met because the sheriff had omitted important information that could make the difference to an objectively reasonable person as to whether the sheriff was requesting assistance with active law enforcement.  Ms. Gorton put together a well-written summary and analysis of a very difficult case.  You can read it on our website here:  https://www.mulfil.com/active-law-enforcement-service/?single_header=briefs&get_cat=case-brief

This Bulletin was written by Jim Cotter, Associate Partner in our Walnut Creek office.

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