Legislative, Legal Challenges to AB 5 and the ABC Test Abound in 2020

by John P. Kamin (February 4, 2020)

Since Gov. Gavin Newsom approved a new law making it easier to classify gig economy workers as “employees,” a number of new legislative and legal challenges to the law have popped up that could limit the impact of the new law.

In September 2019, the new governor signed his first piece of landmark legislation – Assembly Bill 5. The bill codified the “ABC Test” from the California Supreme Court decision in Dynamex v. Superior Court, which says that a worker is an employee if they do not meet all of the following three conditions:
  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work;
  • The worker performs work that is outside the usual course of the hiring entity’s business;
  • The worker is customarily engaged in an independently established trade, occupation, or business.
As many of you already know, that is important because it would mean that those workers are entitled to workers’ compensation coverage.

Major Clarifications on Non-IBR Medical Legal Disputes, is this the Beginning of the End?

by Patrick C. Gorman (January 21, 2020)

Over the past two-and-a-half years the industry has been regressively bogged down in litigation over Non-IBR Medical Legal Disputes.

Despite the codification of a Non-IBR Medical Legal Dispute Process in SB 863, the industry saw little friction under the statutes and rules until 2017 (which was observed by the Hon. Judge Myrle Petty in her summary of the statutes in 2017).

What followed has been a massive influx of litigation over Non-IBR Medical Legal Disputes, fueled in part by a 2016 Panel Decision (see Ozuna v. Kern County Superintendent of Schools, 2016 Cal. Wrk.Comp. P.D. LEXIS 401) which states that a claim is essentially “contested” until the case-in-chief has resolved.

WCAB Issues En Banc on Exclusive Jurisdiction Over Voucher

by John P. Kamin (January 15, 2020)

The Workers’ Compensation Appeals Board issued an notice of intention to release an en banc decision that would invalidate a rule that allows the Administrative Director of the Division of Workers’ Compensation to resolve supplemental job displacement benefit voucher disputes.

The board announced that it intends to issue an en banc decision on the supplemental job displacement benefit (SJDB) voucher in the case of Dennis v. State of California Department of Corrections and Rehabilitation Inmate Claims, No. ADJ9346293, on Jan. 13, 2020. The proposed decision would invalidate Rule 10133.54, which gives the Administrative Director the ability to adjudicate SJDB voucher disputes.

The WCAB explained that it was issuing a notice of intent so it could give the Administrative Director 30 days to respond with additional briefing on the topic.

The board explained that the AD Rule 10133.54 appears to restrict the WCAB’s statutory authority to adjudicate workers’ compensation disputes. The commissioners said that the rule:

WCAB Clarifies Confusion Over Copy Service Lien Claimants’ Burden of Proof, Defendant’s Objections

by John P. Kamin (January 14, 2020)

The Workers Compensation Appeals Board resolved confusion about litigation stemming from copy service lien claimants’ petitions for non-IBR disputes in an en banc decision.

The WCAB’s en banc decision in the case of Ashley Colamonico v. Secure Transportation clarified the burden of proof that copy services must prove in disputes over their liens and stated that a defendant’s failure to issue an EOR does not constitute a waiver of any and all objections.

THE COPY SERVICES’ BURDEN OF PROOF

First and foremost, the WCAB pointed out that copy service lien claimants must first establish that there is a contested claim. Why do this? Well, Labor Code 4620(a) “defines a medical-legal expense as a cost or expense that a party incurs ‘for the purpose of proving or disproving a contested claim.’”

So what’s a contested claim? The WCAB looked to LC 4620(b) and defined it as follows:

Are Saturdays Considered Working Days for Purposes of Utilization Review?

by John W. Doud  (January 8, 2020)


A Fire Captain with the California Department of Forestry and Fire Protection (Cal Fire) sought authority for radio frequency ablation to treat an accepted injury to his back. The applicant’s first request for treatment was received by Cal Fire’s UR company on Monday, March 12, 2018. UR denied the request for treatment on Monday, March 19, 2018. The applicant’s second request for treatment was received on Monday, April 16, 2018 and denied on Monday, April 23, 2018.

The applicant alleged that because both UR denials were not rendered within “five working days” as mandated by Labor Code § 4610(i)(1), they were “untimely.” Therefore, the WCAB had jurisdiction to award him the requested medical treatment. Let’s see how he does.

“I want a second opinion… and maybe a third opinion too.”

by Nathan E. Nissim  (December 23, 2019)

Sometimes even the best applicants’ attorneys are confronted with primary treating physician opinions that can be quite detrimental to their client, such as when that physician gives a nonindustrial diagnosis and discharge from care.

A nonindustrial diagnosis and discharge from care is problematic for applicants, because it could occur leading to a potential denial of the claim or benefits by the insurance carrier or a denial of additional treatment based on the Tenet/Centinela Hosp. Med. Center v. WCAB (Rushing) (2001) 65 Cal. Comp. Cases 477 [65 CCC 477] (WCAB en banc) due to the discharge by the primary treating physician.