WORK COMP LEGAL UPDATE

INSIDIOUS PROGRESSIVE DISEASE

AND EXTENDED PD JURISDICTION

In Arbogast v. CHP (2023) a CHP Officer incurred ovarian cancer which was deemed industrial due to exposure to chemicals at work (i.e. vehicle fires, diesel exhaust fumes, etc.). The two QMEs opined while the cancer was surgically removed, there was a 50% chance of returning in 5-7 years. The main trial issue was whether the WCAB could reserve jurisdiction on PD more than five years from date of injury.

The Board held that jurisdiction can be reserved on PD beyond the five year limitation under Labor Code sections 5410 and 5804 when the injury stems from an "insidious progressive disease" which has been defined as (1) caused by remote or undramatic work exposure that could be undetected for prolonged periods; (2) worsens over time before becoming apparent; and (3) has a long latency period (General Foundry v. WCAB (Jackson) (1986) 51 CCC375).

A well known example of an insidious progressive disease in which PD jurisdiction is reserved involves asbestos. The doctrine has also been applied to cases involving various cancers (bladder, prostrate, thyroid), and hepatitis C.

[COMMENT: In short, jurisdiction to address PD can be extended in a non-traumatic injury where medical opinions confirm the existence of an industrially caused disease that is likely to progressively worsen well beyond five years from date of injury.]

NOTEWORTHY PEO CASE

Jesus Gonzalez v. WCAB (2023) is a noteworthy panel decision involving a PEO lease-back situation. Applicant Gonzales was a long-haul driver jointly employed by the PEO general employer (Peoplease LLC) and special employer (Major Transportation). On the week of the injury, the PEO was late in paying Gonzalez's wages, which were then paid directly by the special employer. The late wage payments had occurred previously on several occasions.

There was no dispute as to injury, however, the PEO denied any liability for providing workers' compensation benefits because the special employer had directly paid the applicant's wages for the week he had been injured.

The WCAB determined the PEO was liable for providing the applicant's benefits because: 1) The PEO was contractually obligated to provide workers' compensation coverage; 2) The PEO provided no evidence that Gonzalez's employment had somehow been temporarily suspended for that one week; and 3) There was no other available workers' compensation coverage.

[COMMENT: A short glitch in paying wages did not change either the contractual nor the employment relationships between the parties.]

NOTEWORTHY COVID-19 CASE

In Joffre Garcia v. WCAB (2023) a trial judge erroneously applied a COVID presumption to the death of a banker even though his job is not covered under L.C. 3212.87 and there had been no evidence supporting an outbreak at work allowing for a presumption under L.C. 3212.88.

The WCAB overturned the trial judge's decision and remanded the case to ask the essential questions of when and where the employee contracted the disease. The Board noted the key questions may be unanswerable, thus requiring medical evidence to determine if it was more likely than not the disease was established at the workplace which may have a higher risk of exposure than the general population.

[COMMENT: Where there is no job specific presumption nor a workplace outbreak, whether a job exposes the worker to the general population may be the deciding aoe/coe factor.]

HEWS NEWS:

H. Neal Wells IV is speaking at the CSIA Conference on May 15th.

May Employee Anniversaries: Attorney Regina Rabanal (15 years) and legal assistant Kelli Sparks (17 years) both of the San Bernardino Office.

Main Contributor: H. Neal Wells IV

Editorial Staff: Lynn P. Peterson

and Ari L. Emurian

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)

www.hmplc.com

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