FALLING INTO A SHIFTING LEGAL CLIMATE

As the days grow shorter, there’s an appreciable sense of change in the air, signaling the arrival of fall in California.  While we await the season’s festivities and the opportunity to revel in the autumn leaves, this time of year also brings with it shifts in the legal landscape.  With these changes, we appreciate the new challenges and opportunities for all involved as the workers’ compensation system continues to evolve.

COURT OF APPEAL ORDERS WCAB TO CEASSE “GRANT-FOR-STUDY” ORDERS

In Michele Early et al. v. WCAB (Insurance CO. of the State of Pennsylvania) the California 2nd District Court of Appeal invalidated a longstanding practice of the Workers’ Compensation Appeals Board (WCAB) in ruling on petitions for reconsideration by issuing “Grant-for-Study” Orders.

As we all know, an aggrieved party in a workers’ compensation proceeding can file a Petition for Reconsideration with the WCAB, which must act upon such petitions within 60 days.  To satisfy this requirement, the WCAB would often grant petitions for further study, without issuing a ruling on its merits.   The practical result of the “Grant-for-Study” procedure has been that many cases linger, sometimes for years, without a final decision affirming, reversing, or modifying the ruling at issue.

In Early, the Court held that the WCAB may not simply grant reconsideration for the purpose of further study to satisfy the requirement to act within 60 days.  Rather, the “statute requires the board to make a reasoned decision when granting reconsideration.”  As such, the WCAB was ordered, by writ of mandate “to cease its grant-for-study procedure and to comply when granting reconsideration.”  However, the Court also held that the WCAB “is not required to issue a final ruling on the merits within 60 days.”

The Court acknowledged that the Petitioners’ grant-for-study orders arose in different situations with different timelines.  However, the orders granting reconsideration for further study for each petitioner included identical language with respect to time constraints for acting on the petition, as well as the need to allow sufficient opportunity to study the factual and legal issues of the Petitioners’ claims.  The Court said that the “uniform language of these orders reveals a standard form and not a particularized analysis.”

The Court said that although the WCAB issues a decision in response to most petitions for reconsideration within 60 days, it issued grant-for-study orders in approximately 19% of cases from 2015 to 2019.  From 2020 to 2021, the figure increased to about 38.5% of cases.  As of November 2, 2021, there were 543 workers’ compensation cases awaiting a final decision because of grant-for-study orders.

The Court said that the WCAB must comply with Labor Code (LC) 5908.5, which requires it to detail the basis for the decision, as well as the evidence in support of the decision, based on the ground identified in LC Section 5903.  A “boilerplate” statement about the need for further study is insufficient.  “A rubber stamp could have authored these statements,” the court said.

Although the Court invalidated the practice of using grant-for-study orders to meet the 60-day deadline to act on petitions for reconsideration, the Court reiterated that the WCAB does not need to issue a final ruling on the merits within 60 days.  Rather, the WCAB must “confirm, adopt, modify, or set aside the findings, order, decision, or award of a workers’ compensation judge … with or without further proceedings” within 60 days of the filing of a petition for reconsideration.  The fact that “further proceedings” are allowed before the WCAB issues its order, means that the initial order setting aside the decision need not be final.

TAKEAWAY:  The WCAB is no longer allowed to rule on petitions for reconsideration by issuing “Grant-for-Study” Orders.  However, the Court’s writ of mandate may have little impact in practice, as the WCAB can still grant petitions for reconsideration, so long as it complies with LC Section 5908.5, which requires the WCAB to “state the evidence it relied upon and specify in detail the reason for its decision.”

For a link to the copy of the Court’s decision, click here.

CALIFORNIA’S MINIMUM WAGE TO INCREASE TO $16 PER HOUR

On September 26, 2023, the State of California Department of Industrial Relations (DIR) announced that California’s minimum wage will increase from $15.50 per hour to $16.00 for all employers on January 1, 2024.

According to the DIR, the change in minimum wage will also impact the minimum salary an employee must have to qualify for one part of the overtime exception test.  Exempt employees do not qualify for overtime pay for their hours worked.  To satisfy this requirement, an employee must earn at least twice the state’s minimum wage for full-time employment.  As of January 1, 2024, employees in California will need to have an annual salary of at least $66,560 to meet this requirement.

California’s Minimum Wage to Increase to $16 per hour in January 2024 | California Department of Industrial Relations

CALIFORNIA SENATE PASSES TD PRESUMPTION BILLS

According to a recent article by WorkCompCentral, California lawmakers recently passed Assembly Bill (AB) 1213, which would discount time spent appealing Utilization Review (UR) decisions from the 104-week aggregate cap on temporary disability.  The measure was amended to include language that would allow temporary disability benefits to be extended for an additional 90 days if the injured worker prevails on the medical treatment dispute. The 90-day extension would take effect as of January 1, 2024, and expire on January 1, 2027.  The full Assembly will need to vote on the bill again to concur with the amendment.

The Senate also passed AB 1145, which would add LC Section 3212.6 and create a Post Traumatic Stress Disorder (PTSD) presumption for various healthcare providers working with the Correction and Rehabilitation, Developmental Services and State Hospitals.  The presumption would be effective from January 1, 2023 through January 1, 2030.

Meanwhile, the Assembly approved SB 623, which would add firefighters for State Hospitals, Developmental Services, Veterans Affairs and Military departments to the list of first responders covered by the PTSD presumption which was enacted in 2019.  Because the bill was amended after it was passed by the Senate, the measure will need to return to the Senate for concurrence.

Lawmakers Pass TD Duration, Presumption Bills| Workers Compensation News | WorkCompCentral

 

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 are available on our website at www.mulfil.com/bulletins.

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