May 19, 20220

May is Mental Health Awareness Month.  Since the start of the pandemic, millions of people have felt the toll of stress, isolation, and uncertainty on their mental health.  In recognition of this reality, law makers, as well as public and private employers, have enacted policy and created programs to promote wellbeing.  We at Mullen & Filippi encourage everyone to give some love to the most important part of your body – your mind.


California is no exception when it comes to recognizing the importance of mental health.  The Senate Committee on Labor, Public Employment and Retirement recently passed a bill that is currently moving through the senate that may allow Medical Provider Networks (MPNs) to include clinical social workers to provide some services that would otherwise be provided by psychologists and psychiatrists. 

Presumably, California’s workers’ compensation system will continue to expand to provide more mental health care to employees throughout the state.

Committee Passes Bill Allowing Addition of Social Workers to MPNs


Readers will recall that in See’s Candies, Inc. v. Superior Court 2021 Cal. App. LEXIS 1076, the Second Appellate District held that the derivative injury doctrine does not shield an employer from liability in wrongful death action for negligently exposing an employee to COVID-19, which resulted in the death of the employee’s spouse.  On April 13, 2022, the Supreme Court of California denied a petition to review the decision, meaning that the state’s derivative injury doctrine does not bar claims brought by an employee’s spouse for injuries arising from an industrially related COVID-19 infection. 

However, in  Kuciemba v. Victory Woodworks, Inc.No. 21-15963, 2022 U.S. App. LEXIS 10786 (9th Cir., Apr. 21, 2022), the Ninth Circuit Court of Appeals reached the opposite result.   In that case, Robert Kuciemba (hereinafter, “Robert”) worked for Victory Woodworks, Inc. (hereinafter “Victory”) during the COVID-19 outbreak, where he and his wife, Corby Kuciemba (hereinafter, “Corby”), contend Robert was forced to work in close contact with other employees who were infected with COVID-19, resulting in his exposure to the virus.  Corby subsequently became infected and was hospitalized for over a month, staying alive on a respirator. 

The Kuciembas subsequently filed suit in California Superior Court, alleging that Victory caused Corby’s injuries by violating health orders in effect.  Corby alleged various state law negligence claims and Robert brought a claim for loss of consortium.  

Victory removed the case to Federal Court and filed a motion to dismiss.  The district court granted the motion and held that Corby’s claims were barred by the derivative action doctrine and that Victory did not owe a duty to Corby.  

The Kuciembas appealed to the Ninth Circuit Court of Appeal.  The appellate court held that the state’s Workers’ Compensation Act is the exclusive remedy against an employer for industrial injuries and that it is also “the exclusive remedy for certain third party claims deemed collateral to or derivative of” an employee’s work-related injuries [quoting Snyder v. Michael’s Stores, Inc., 945 P.2d 781, 784 (Cal. 1997)]. 

The Ninth Circuit noted that although the Court of Appeals reasoning in See’s Candies was instructive, it did not eliminate the need for clear guidance from the California Supreme Court.  Given the conflicting precedence regarding the scope of the derivative action doctrine, the Ninth Circuit certified two questions to the Supreme Court of California:

  1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

Because the Court of Appeals decision in See’s Candies is inconsistent with the federal court decision in Kuciemba, it appears likely that the California Supreme Court will accept review. 

California High Court May Take Another Look at Employer’s Liability for COVID-19 Contracted by Employee’s Family Member


As a follow-up to our March Bulletin, the 2nd District Court of Appeals has ordered the WCAB to explain the process and origin of the “Grant and Study” and why it should not be prevented from using the process going forward.  

The order to show cause followed a complaint filed last month by five injured workers, who allege that there is no statutory authority for the WCAB to issue grant and study orders, and that such orders are unconstitutional because they prevent the speedy delivery of benefits. 

As most of us know, the WCAB is required to issue a decision within 60 days of an appeal.  However, by granting a petition for further study, the deadline may be extended indefinitely.  

The Second District Court of Appeals ordered the WCAB to explain in writing by June 3, 2022, why it should not be ordered to: 

  1. Cease issuing orders on petitions for reconsideration for the purpose of further study without addressing whether reconsideration is warranted under Labor Code Section 5903.
  2. Comply with the requirement that all decisions granting a petition for reconsideration identify the evidence relied upon and explain in detail the rationale for the decision.

The District Court also said “[t]he written return should also address: 1) The origin and reasons for the Board’s grant-for-study procedure; and 2) the criteria the board employs in deciding whether to issue a grant-for-study order.”

Court Orders WCAB to Explain Origin, Process of ‘Grant-for-Study’ Practice

This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office.  A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.

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