New Gig Economy Law Takes Effect In January 2020, But The Fight Is Far From Over

by John P. Kamin (September 27, 2019)

The impact of California’s new legislation aimed at changing how workers are classified will be met with resistance from some of the state’s top tech companies, and ultimately a ballot initiative that could be the talk of the 2020 election.

Gov. Gavin Newsom signed Assembly Bill 5 into law on September 18, which has changed the legal test for determining whether gig economy workers are employees. The bill codified the “ABC Test” from the California Supreme Court decision in Dynamex v. Superior Court, which says that a worker is probably an employee if they provide work that is in the usual course of the hiring entity’s business.

Why is that important? That would mean that these new employees would arguably be subject to workers’ compensation coverage.

In other words, if a worker does not meet all of the following three conditions, then they are an employee for purposes of workers’ compensation law:
  • 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.
So does that mean that when the bill takes effect on Jan. 1, 2020, that all gig economy workers will – as the San Francisco Chronicle put it - magically transform “into employees, like Cinderella’s coachmen transforming back into mice?”

Vaping Could Play A Big Role in Defending Respiratory Claims

by John P. Kamin (September 20, 2019)

Defendants need to keep reports about the potentially damaging side effects of vaping in mind during the discovery process in cases with allegations of respiratory illness.

In the significant minority of cases involves breathing problems or respiratory failure, it would behoove defendants to be on the lookout for references to vaping during the discovery process.

That means looking for references to injured workers having a history of smoking and vaping in personal medical records, and asking about it during depositions and trial testimony, and asking the applicant’s coworkers if the applicant was a vaper. Often people who are looking to quit smoking cigarettes turn to vaping, and health records tend to show histories of cigarette smoking.

What are some of the recent headlines that have prompted health officials to investigate vaping? Reports of people in their 20s and 30s going to the Intensive Care Unit for respiratory failure, which is described in the article titled “Vaping appears to be making hundreds of people sick. Doctors have no idea why.”

Synergistic or Symbiotic? Addressing Multiple Body Parts, Post-Kite

by Zane P. UribarriJemma S. UribarriLouis A. Larres & John P. Kamin  (September 10, 2019)
Following the 2013 decision in Kite v. Athens Administrators (2013) 78 CCC 213 (writ denied), applicant’s attorneys have attempted to take full advantage of this method of increasing total permanent disability ratings without increasing the level of actual impairment allocated to their clients. The way they have been doing this is by asking doctors to add permanent disability ratings for various body parts, rather than combining the PD ratings with the Combined Value Chart (CVC) as indicated in the 2005 Permanent Disability Rating Schedule (PDRS).

This is important for defendants because combining PD values via the CVC chart tends to result in lower PD ratings. The CVC chart is part of the 2005 PDRS, which is presumed by California law to be correct.

Medical Malpractice and Workers’ Compensation Subrogation in California

by Peter V. Fitzpatrick (August 22, 2019)
One of the unique quirks of California workers’ compensation law is that insurance carriers cannot subrogate against medical malpractice lawsuits.

The issue is codified in California Civil Code section 3333.1, which states in relevant part as follows:
    “(a) In the event the defendant so elects, in an action for personal injury against the health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any State or Federal Income Disability or Workers’ Compensation Act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other healthcare services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence.

    (b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”

Lawmakers to Watch Gov. Newsom’s Vetos Closely As Legislative Session Winds Down

by John P. Kamin (August 21, 2019)

As the California Legislature moves toward the end of Gov. Gavin Newsom’s first session, lawyers, lawmakers and lobbyists are gearing up to see whether the new governor’s pen will follow the veto-friendly ways of his predecessor Jerry Brown.

Newsom, who previously served as the lieutenant governor under Brown, will have until Oct. 13 to sign or veto any bills passed by the Legislature. The last day for the Legislature to approve bills and send them to the governor’s desk for approval is Sept. 13, 2019.

Despite his national reputation as a relatively liberal politician, Brown consistently vetoed some of the more liberal labor-backed workers’ compensation bills that were opposed by employers and insurance carriers. When his former lieutenant governor Newsom became governor, many wondered if Newsom would continue to veto bills in a similar manner that Brown did.

Race to the QME Specialty – does 8 CCR §31.7 Make it Moot?

by Kimberly R. Wagner (July 31, 2019)
An ongoing hot button issue in California workers’ compensation remains the specialty selected for the Panel Qualified Medical Evaluator as it is generally the defense’s opportunity to have the injured worker evaluated by a neutral medical-legal physician after being referred to his own Primary Treating Physician. But can the specialty be a moot issue if you can just request a second Panel when you are “lucky” enough to have the first evaluator admit that another opinion may be necessary?

The procedures for obtaining an initial QME panel under Labor Code §§4060, 4061, 4062 are well-established under statutory authority and case law, but there has been little guidance as to when an additional QME panel becomes necessary under Section 31.7 [1].