WORK COMP LEGAL UPDATE

NO EXCLUSIVITY RULE WHEN COVID OUTBREAK CONCEALED BY EMPLOYER

In Chavez v. Alco Harvesting, LLC (2024) 89 CCC 615, Leo Chavez was employed as a foreman and bus driver for Alco Harvesting. At the start of the 2020 COVID-19 pandemic, Alco placed employees like Chavez in tight quarters at a motel in Santa Maria. At the motel, a COVID-19 outbreak occurred in June 2020. Alco took no safety steps, failed to report the outbreak to the health department, and failed to notify the Alco employees. Chavez became ill, and was moved to a different motel where he received no medical treatment and died. A civil wrongful death claim was filed, which was rejected by the trial court due to the exclusivity rules of workers' compensation.

The Appeals Court reversed the trial judge, noting the fraudulent concealment exception to workers' compensation exclusivity under Labor Code section 3602(b)(2) which provides the exclusivity rule does not apply where an injury is aggravated by an employer who knowingly conceals the injury from the employee. The case was remanded back to the trial court for further proceedings.

[COMMENT: Granted this incident occurred early in the pandemic when everybody was confused as to what to do. Nevertheless, Alco could have avoided a civil lawsuit if they had timely advised Chavez of the outbreak and offered medical care. The three elements that comprise the fraudulent concealment exception include: 1) employer knew the employee sustained an injury; 2) employer concealed that knowledge from the employee; and 3) the injury was aggravated as a result of the concealment.]

ANOTHER BAD VR REPORT CASE

In Vernon v. Kaweah Delta Health Care (2024) 52 CWCR 121, applicant sustained a significant knee injury and alleged related internal and sleep complaints. Applicant asserted two approaches to support a 100% PD finding. First was a vocational rehabilitation report stating the sleep complaints constituted "chronic fatigue" which prevented applicant from working. Second, applicant claimed he was 100% on the basis of a SSDI Award. The trial judge determined the vocational report was not substantial evidence; and the Board was not bound by the SSDI award.

On reconsideration, the WCAB agreed with the trial judge, noting that: 1) Per Labor Code 4660.1(c)(1) there cannot be PD for sleep problems that are a compensable consequence from the knee pain; 2) Per Nunes a VR expert cannot provide their own medical opinion (i.e., stating insomnia is same as chronic fatigue) to justify their conclusions; and 3) An SSDI award can be considered by a judge but is not res judicata on the issue of PTD.

[COMMENT: The Board has been consistent in recent years in discounting VR expert reports where the alleged expert plays games with the medical evidence to justify a dubious 100% PD opinion.]

SAN BERNARDINO BOARD CLOSED TEMPORARILY

The DWC announced the District Office in San Bernardino would be closed temporarily for 6-8 weeks starting July 22, 2024 due to excessive heat and needed repairs to the HVAC system.

Any scheduled in-person trials will be handled remotely by using the judge's conference line, unless otherwise instructed. Walk-throughs can go to the Pomona and Riverside Boards.

HEWS NEWS:

Congratulations to HEWS attorney F. Fara Karim in Santa Ana who recently obtained several lien trial take-nothing decisions in Arturo Davila v. BHHC (2024) (disallowed chiropractic billing charges by a non-MPN provider); in Ana Cortez v. BHHC(2024) (disallowed copy charges when records were previously provided by the defense); and in Silvestre Hernandez v. BHHC (2024) (disallowed psych medical treatment and med-legal billing charges by a non-MPN provider and whose med-legal report was without a RFA or a request from applicant).

HEWS Work Anniversaries in August:

No work anniversaries this month; however, we welcome our new hire Michael Encinas to the billing department.

Main Contributor: H. Neal Wells IV

Editorial Staff: Lynn P. Peterson

HEW&S OFFICES: COVERING ALL OF CALIFORNIA

San Bernardino (909) 890-0403 (sbr@hmplc.com)
Santa Ana (949) 250-1216 (ana@hmplc.com)
Burbank (818) 265-0940 (cxr@hmplc.com)
Calabasas (818) 348-8366 (cls@hmplc.com)

www.hmplc.com

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