Saint Patrick’s Day, also known as the Feast of Saint Patrick, is a cultural and religious celebration held on March 17, which is the date of death of Saint Patrick (c. 385 – c. 461), the patron saint of Ireland. In the early 17th century, Saint Patrick’s Day was made an official Christian feast day and is observed by the Catholic Church, the Lutheran Church, and the Anglican Church, among others. Historically, Christians of the liturgical denominations have Lenten restrictions on eating and drinking, which were lifted for the day, which has encouraged the holiday tradition of alcohol consumption and propagated the festivities we see today.
Given the amount of time we spend at our desks and remote work spaces, we all deserve a day to enjoy a Guinness or a green beer. We at Mullen & Filippi hope you enjoyed the holiday with family and friends!
WCAB RESCINDS WCAB EMERGENCY RULES
In response to the March 4, 2020 declaration of state of emergency by California’s Governor, Gavin Newsom, the Workers’ Compensation Appeals Board (WCAB) temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures, WCAB Rule 10940(b) regarding electronic filing of documents with the Appeals Board, and WCAB Rule 10789(c) regarding walk-through assignment hours.
In October 2022, Governor Newsom announced that the state of emergency would end as of February 28, 2023.
On March 22, 2023, the Worker’s Compensation Appeals Board (WCAB) issued Misc. No. 268 In re: COVID-19 State of Emergency, wherein the Appeals Board rescinded all remaining provisions of the en banc emergency orders, including the suspension of WCAB Rules 10500(b)(6) (wherein witness signatures are once again required under paragraph 11 on page 8 of Compromise and Release (C&R) agreements), 10940(b) (wherein the WCAB will no longer accept filings via facsimile or e-mail), and 10789(c) (wherein walk-through assignment hours at each Board have been reinstated), effective as of the date of issuance of the decision.
In Re: COVID-19 State of Emergency, En Banc – No. 9
POTENTIAL EXTENSION FOR DEADLINE ON WCAB DECISIONS
According to a recent WorkCompCentral article, the Senate Rules Committee unanimously recommended that the Senate confirm the appointments of commissioners Joseph Capurro and Jose Razo.
At the confirmation hearing on March 8, 2023, Mr. Capurro stated that he doesn’t like to use the term “backlog” to describe the number of cases in which the WCAB has not issued a decision within 60 days, though he acknowledged that there are “a number of cases at the board longer than one should reasonably expect them to be there.” Mr. Capurro explained that the law requires the WCAB to “act” within 60 days, but not to issue a final decision within 60 days.
He explained that for many cases, it is simply not possible for the WCAB to issue a decision within the 60-day timeframe. He explained further that there is a “fundamental problem” of not having enough people to do the work. “Prior to COVID we had the backlog down to about 250 cases, but now we’re back over 400, close to 600, and a lot of that is due to the switchover from paper processes to electronic processes,” he said.
Senator Richard Roth, D-Riverside, asked about the backlog and suggested that lawmakers could provide assistance by budgeting more money to address staffing shortages. Further, he said lawmakers could review the Labor Code section (LC Section 5900(b)), which provides the 60-day timeframe to act on a case “to make it a more realistic timeline.”
Senator Hints at Extending Deadline for WCAB Decisions
EMPLOYER’S RIGHT TO REMAIN AS PARTY DEFENDANT
Following an industrial injury, the normal procedure is for the injured worker to submit a claim form and the employer will promptly alert their insurer. The insurance carrier then serves a notice of assumption of liability (hereinafter, notice) on the insured employer and the notice is filed with the Appeals Board pursuant to LC Section 3755. Once the notice is filed, the carrier inserts itself into the litigation process and in most cases, releases the employer from liability.
In the recent Noteworthy Panel Decision (NPD) of Saavedra v. Michael Sullivan Associates, LLP, 2023 Cal. Wrk. Comp. P.D. LEXIS 12 (hereinafter, Saavedra), the Appeals Board explored how an insurance carrier’s control over the discovery process might adversely affect the employer’s ability to control the claim.
In Saavedra, the Applicant (hereinafter Applicant) was employed by workers’ compensation defense firm Michael Sullivan & Associates (hereinafter, employer). Applicant filed a cumulative trauma type injury through October 2019 to her low back, right hand and psych. Employers Assurance Group (EAG) was properly joined as a party defendant and the Law Offices of Nguyen & Gribble was retained to defend the claim. EAG did not serve the notice on the Applicant, employer or the Appeals Board.
The employer became concerned about how the claim was being handled and attempted to set the deposition of Applicant. Applicant objected to the deposition being set by the employer because EAG was defending the claim. The issue of whether the employer could set the deposition of Applicant was set for trial.
At trial, Applicant requested that the employer be dismissed as a party defendant pursuant to LC Section 3755. The employer argued that because EAG did not serve the notice and EAG had refused to assume liability by denying the claim, the employer could not be dismissed as a party defendant.
The WCJ disagreed with the employer’s position and the WCJ’s decision was affirmed by the WCAB. The WCAB reasoned that substance over form controls the issue. Because EAG is liable for any compensation that may be awarded to Applicant, EAG “assumed liability under sections 3757 and 3759, such that we may dismiss Michael Sullivan & Associates from the proceeding, and applicant may continue her compensation case solely against Employers Assurance Group.”
PRACTICE TIP: Insurance carriers should comply with the exact terms of LC 3755 when stepping into the shoes of the employer with claims handling. Adherence to this rule will save time and limit litigation costs if an employer becomes concerned throughout the discovery process.
CAUTION: Board panel decisions are not binding precedent.
For a more detailed summary of the Saavedra case, click the link below.
California: Does an Employer Have a Right to Remain as a Party Defendant?
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.
