BRIEF LEGAL UPDATE

INCREASE IN CA MINIMUM WAGE AND TD IMPACT

California's minimum wage will increase by $1/hour on 1/1/2022 to $15.00/hour for employers w/26 or more employees, and $14.00/hour for employers w/25 or fewer employees.

On cases where an applicant was receiving hourly wages at the minimum rate in 2021, the potential TTD rate for payments in 2022 would increase since wages cannot be paid at less than the legal rate. For example, the original 2021 TTD rate was $260 based upon AWW of $390 (30 hours x $13/hour), that TTD rate would increase in 2022 to $280 based upon the "new adjusted" $420 AWW (30 hours x $14/hour).

Additionally, no matter the hours worked, note that the minimum TTD rate will be increasing in 2022 from $203.44 to $230.95 (no matter the AWW).

[In short, where TD is being paid from 2021 into 2022, adjusters need to assess whether an increased TD rate needs to be implemented based upon the higher minimum wage and/or minimum/maximum TTD rates.]

S&W CLAIM NOT SUPPORTED

An operations safety manager for 17 years was killed in a workplace fall while removing a carport roof at a car dealership. The employer received an OSHA fine which was reduced on appeal without admission of fault by the employer. The dependents filed a S&W claim against the employer based upon the OSHA fine. WCJ denied the S&W, noting the applicant received proper training and was the agent responsible for safety.

On reconsideration, the WCAB determined that the elements to support a S&W under LC 4553 and 4553.1 were not met since there was no known safety hazard to the management, the applicant was the safety agent who should not "benefit" from his own misconduct, and there was no "finding" of fault from OSHA (per reduced fine agreement with the employer). Perez (dec'd) v. Dynamic Auto Images (2021) 49 CWCR 200.

[COMMENT: Reminder that an OSHA fine without a fault determination may not be conclusive of gross negligence by an employer for S&W purposes.]

WORK COMP DEFENSE CONF.

The Work Comp Defense Conference has been moved to January 7-8 2022.

H. Neal Wells IV is set to speak January 8th on the significant work comp legislative and regulatory actions of 2021.

HEWS NEWS:

After almost 35 years with the law firm, Bruce S. Emerick will be retiring next month from active file handling, but will remain "Of Counsel" to the HEWS firm. During his career, he managed three (3) of the firm's offices as well as serving as Corporate President. Emerick is recognized as one of the premier work comp defense attorneys in the Inland Empire and eastern Sierra Nevada corridor. We will miss his daily wit and wisdom, and congratulate him on a well deserved respite.

Congratulations to our December anniversary attorneys which include James P. Sirick (Santa Ana) and Ari L. Emurian (Calabasas).

- Editor: H. Neal Wells IV

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HEW&S OFFICES: COVERING ALL OF CALIFORNIA

San Bernardino (909) 890-0403 (sbr@hmplc.com)
Orange County (949) 250-1216 (ana@hmplc.com)
Glendale (818) 265-0940 (cxr@hmplc.com)
Calabasas (818) 348-8366 (cls@hmplc.com)
San Diego (858) 753-1984 (sdo@hmplc.com)

www.hmplc.com

The above is for informational purposes only, and not intended to constitute legal advice.

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