WORK COMP LEGAL UPDATE

SUBTLE CHANGE TO LABOR CODE 5909

Labor Code Section 5909 provides that a petition for reconsideration is deemed to have been denied by the appeals board if not acted upon within 60 days from the date the petition is filed. However, effective July 2, 2024 that section underwent a subtle change, when language was added stating the 60 day clock begins "from the date a trial judge transmits a case to the appeals board". Also, the trial judge must notify the parties of when the case has been transmitted to the appeals board. This addition to Labor Code 5909 is set to expire on July 1, 2027.

There have been cases where the appeals board claims to have been unaware of when a reconsideration petition was received, and gave itself a time extension to act far beyond the 60 day timeframe; however, this change in statute should resolve that issue as the clock starts when the case is confirmed to have been transmitted to the appeals board by the judge.

[COMMENT: The legislative intent is to clearly remove any excuses by the appeals board for not timely acting on petitions for reconsideration. The same intent is also seen in recent case decisions such as in Mayor v. WCAB (2024) wherein the 1st District Court of Appeal held that the 60 day timeframe for the appeals board to act is mandatory, barring any "human errors or administrative irregularities" in transmitting the case to the appeals board.]

EARNING CAPACITY & COVID

In Hever Flores v. L.A. Speciality Food Produce (2024 Cal. Wrk. Comp. P.D. LEXIS 87), applicant sustained an injury on 8/28/2021 for which a trial judge awarded temporary disability indemnity based upon his wages at the time of injury under Labor Code 4453 (c)(1). The issue that then arose pertained to whether earnings during the COVID pandemic should have been used to determine the TD rate.

On reconsideration, the Board stated that in this case the earnings at "time of injury" did not lead to an accurate estimate of the applicant's true earnings, which had otherwise been involuntarily diminished due to the COVID pandemic from $1,301.46 per week in 2019 down to $749.42 per week in 2020/2021.

The Board ultimately decided that the wages should have been based under Labor Code 4453 (c)(4) which allows for alternative methods to determine AWW for indemnity purposes.

[COMMENT: LC 4453 (c)(4) usually applies only where the employment is for less than 30 hours per week, or alternatively where no other statutory method applies.]

ALLEGED SJDB VOUCHER FRAUD

The operators of Los Angeles based Caledonian School have been arraigned on allegations of submitting fraudulent claims to insurers for vocational services that were not actually provided in connection with Supplemental Job Displacement Benefit vouchers. Additionally, the Los Angeles District Attorney's Office is charging them with paying illegal kickbacks for referrals to various vocational counselors including Jenny Villegas (Friends For Injured Workers), Laura M. Wilson (Laura Wilson & Associates), Jesus Garibay (Gordy's Legal Services) and Hazel Ortega (Ortega Counseling).

DISTRICT OFFICE REOPENS

After being closed for repairs to its' HVAC system, the San Bernardino Board reopened for business on September 10, 2024.

HEWS NEWS:

September HEWS Work Anniversaries:

Orange County associate attorney Nirvana Youssefi (1 year). The firm also welcomes our new billing clerk Matthew Encinas.

Main Contributor: H. Neal Wells IV

Editorial Staff: Lynn P. Peterson

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