Recent Panel Decisions Suggest Dynamex’s Employment Test Doesn’t Apply to Work Comp, Reinforces Borello as Good Law

by John P. Kamin (January 18, 2019)

A couple of recent panel decisions demonstrate that the California Supreme Court’s new independent contractor/employer test in the 2018 Dynamex v. Superior Court decision does not apply to the California workers’ compensation system.

The WCAB issued three panel decisions in late 2018 that declined to rely upon the state Supreme Court’s decision in Dynamex. In the April 2018 Dynamex decision, the court adopted a three-part test known as the “ABC Test” to determine whether a worker is an independent contractor or an employee.

Those of us in the workers’ compensation system feared that this test would cause uncertainty by suddenly replacing the multi-factor test set forth by the 1989 state Supreme Court decision in S.G. Borello & Sons, Inc. v. Dept. of Ind. Relations 19 (1989) 48 Cal.3d 341 [54 Cal.Comp.Cases 80].

However, the most recent panel decisions clarify that Dynamex does not replace the Borello test, because the Dynamex factors only apply to wage orders in wage and hour disputes. The case that features the most detailed statement on this clarification is Perkins v. Don L. Knox, et al (2018 Cal. Wrk. Comp. P.D. LEXIS 490.) In that panel decision, WCAB Chairwoman Katherine Zalewski wrote, “Since the Dynamex court did not overturn the Borello standard for determining an applicant’s employment status with respect to the requirement of providing workers’ compensation benefits, and expressly limited the application of the ABC test to the determination of employment status with regard to wage orders, we conclude that the Borello standard applies here.” Fellow WCAB commissioners Jose Razo and Deidra Lowe concurred with Zalewski’s opinion.

Apportionment in our post SB 899 world – the Saga continues

by Jemma S. Uribarri (January 9, 2019)

Apportionment was revamped with the enactment of SB 899 in 2004. It had long been the case that employers were liable for exacerbations or aggravations of underlying conditions without any benefit of apportionment to the pre-existing condition. These rules were upended with the enactment of LC 4663 and 4664, which required that a physician include an apportionment determination for a report to be considered “complete” with regard to the issue of permanent disability (Cal. Labor Code 4663(c)). This is essential because an employer is only liable for the percentage of the permanent disability that is “directly caused” by the injury arising out of and occurring in the course of employment (Cal. Labor Code 4664(a)).

Since the code sections went into effect on April 19, 2004, a multitude of WCAB panel decisions, en banc decisions & district court of appeal rulings have fleshed out a brave new world of apportionment. This has included cases which address prior awards, genetic predisposition, degenerative conditions, and, most recently, disability which is caused by medical treatment (see B&B BLOG article, “Hikida and the Importance of a Good Doctor”)