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Fix discovery issues before fixing the rate

Fix discovery issues before fixing the rate Once again, my desire to read got the better of me as I opened an article on WorkCompCentral from 1/27/22 regarding a revised fee schedule for copy services. The great State of California Division of Workers’ Compensation is proposing an increase of the flat rate for copy services, as well as some other proposed language. Please bear in mind as you read my rant below that I am not implying copy services should not be reimbursed. Quite the contrary. I use copy services all the time and they are valuable in the discovery process. What bothers me is the fact that the DWC would consider increasing fees for the benefit of copy services while at the same time not creating or even recommending a uniform set of procedures for each and every WCAB to adhere to when it comes to disputes. Yes, we have the “lien” process, and yes, we have the non-IBR Petition process. But most of the disputes I run encounter should never even have to get to either of those two points. Let me explain, and let the rant begin! A little reminder and stroll through history I drafted an article in 2020 regarding SB 863 (here), and discussed the changes made in that bill as well as some of the tricks surrounding copy service providers and their response to the same. Call me shocked, but most items that I discussed two years ago are prevalent today. 8CCR §9982(d)(1) was drafted specifically to address a reasonable timeframe for the defendant to comply with a request for records. Yet I find myself time after time looking at subpoenas issued the day of, or a few days after the date on the top of a Notice of Representation or an Application. And so, I tell my client to let the subpoena and/or representation notice (whichever is earlier) to serve as the start date of the request for documentation and to serve the documents that are requested. Most of the time they do. And what happens? Pretty much without fail, the copy service proceeds with moving forward with the subpoenas immediately. And so, I object timely and most of the time file a Petition to quash. And this is where the first problem arises. First, if we DON’T file to quash, the copy service company will inevitably argue that we needed to and by not, they have a valid basis for requesting payment. Which I disagree with. Why should we be forced to spend the time and cost of filing a Petition and potentially going to a hearing over a service that under the CCP should not have occurred? Our objection should be sufficient. But I digress…. When said Petition is filed, I would give a rough estimate of about half of the WCJ’s in the State will review and address the Petition on the merits. I always try to include all the evidence needed to render a decision without a hearing, and then some. And so, with the half of Judges who will address the Petition immediately, I will either get an Order Quashing or sometimes an Order Denying if I happened to have missed something or was unclear. I admit it, I am not perfect, though close to it in this regard. Of the remaining half of Judges, they fall into two camps: 1. The Judge will issue an Order Deferring action and set the matter for a hearing: I think this is nothing more than an attempt to avoid ruling on the issue and forcing the parties to address a file and serve that almost always has already happened. This hearing can have some benefit as most of the time we can work out our differences with applicant’s attorney, but the end result is time and money for my client to address an arguably improper subpoena request. And if applicant’s counsel cancels the subpoena request, I will inevitably get a bill for the cancellation at $75.00. And then there are the times when we cannot come to an agreement and the court simply defers the matter until after the case in chief resolves. As a side note this appearance can tend to clog an already clogged appearance calendar. Curiously, this tactic seems to fall in line with the “meet and confer” language I will discuss later on. 2. The Judge will deny the request for an Order Quashing and will indicate something to the effect of that the applicant can pursue discovery, but the defendant may not be liable for the costs: I think this is a colossal mistake and does nothing but lead to litigation and costs that do not need to exist on a claim. I cannot tell you how many times I have had a Judge tell me that if I am right, I will prevail in the end whether it be through the non-IBR process, or a lien. But why should the defendant spend the time and costs of having to prove we are right months or years later? All this does is breathe life into a dying subpoena and drag the issue out when it does not need to be. My first response to the fee schedule proposal is to address the issue of improper subpoenas and then have a conversation on the cost of doing business for each valid subpoena. Proposed language in §9985 notes disputes may be resolved by the filing of a petition at the WCAB. So does this require the court to address at the time of filing, or will they continue to sometimes address and sometimes not as noted above? The article also discusses the specific language disallowing payment for services provided within 30 days of the written request. Wonderful! This should not even be subject to debate! But why is the DWC not also indicating in the same spirit of this language a provision that in the event of a premature or improper request, the defendant merely has

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California labor commissioner publishes updated workplace poster

COVID-19, Workers' Compenstation / admin

California labor commissioner publishes updated workplace poster Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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Derivative injury rule and COVID

COVID-19, Workers' Compenstation / admin

Derivative injury rule and COVID What in the world is the derivative injury rule and what does it have to do with Worker’s Compensation? In one of the more interesting cases I have reviewed in some time, the Court of Appeals handed down a decision in late December 2021 pertaining to a COVID-19 death claim and contraction at work, See’s Candies Inc. v. Superior Court (Ek). The twist? The decedent was not the applicant, but rather, her husband. In 2020 Arturo Ek unfortunately passed away from COVID exposure. Ms. Ek contracted COVID-19 and while recovering at home, her husband contracted the virus and ultimately succumbed to his infection. Ms. Ek subsequently filed a lawsuit claiming her employer, See’s Candies, failed to implement appropriate safety measures to mitigate employee exposure to Coronavirus. The claim made in her suit was that the employer knew or should have known that its negligent acts (alleged) would increase the risk of COVID-19 exposure amongst its workers, which could be transmitted to family members. In response, See’s Candies filed a demurrer arguing that the suit was precluded by the “derivative injury doctrine”, a theory that states that Workers’ Compensation exclusivity applies to all claims that are “collateral to or derivative of a compensable injury.” Normally, families of injured employees cannot sue the employer in civil court. Here, the Trial Court overruled the demurrer, stating that an injury to the applicant was not relevant to the overall claim of negligence. Upon appeal, the 2nd DCA cited Snyder v. Michael’s Stores and stated the defendant’s argument was not persuasive. They also rejected an argument about public policy concerns which would compel them to apply the derivative injury doctrine. The court also specifically referenced the ongoing pandemic and noted that factual and legal issues from the pandemic will not lead to unlimited liability. Forgive my scoffing at this thought, as it seems the court is constantly finding ways to expand liability of a defendant. Finally, the court stated that the duty of care argument is not addressed and will ultimately need to be addressed. Specifically, if the defendant (See’s) owes/owed a duty of care to nonemployees infected with COVID-19 as a result of a direct employee contracting the disease at work. The court noted that this assessment of public policy concerns would be hashed out through the litigation process. So how does this impact Workers’ Compensation matters? For over 100 years with few exceptions injuries that occur at work will be handled via a claim for workers’ compensation benefits. Some claim that while the no-fault system is a benefit to the applicant, the loss of the right to a civil suit is a detriment to the same applicant due to the ability to not recover substantial damages. With this decision, should it stand, the exclusive remedy rule is now diminished, possibly significantly, as a protection for employers. This means employers will now need to exercise more caution than ever in demonstrating compliance with appliable rules and regulations pertaining to workplace safety. And document, document, document that compliance. Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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Navigating litigation in the time of COVID

COVID-19 / admin

Navigating litigation in the time of COVID It is no secret that the last two plus years have changed our views on world issues, interactions with others, personal relationships, and how we deal with our work and our professions. In the world of Workers’ Compensation, most changes in caselaw and operations in court go in cycles, depending on the current fad case(s) or DWC directives. COVID-19 has not only turned our appearance calendars on their collective heads, it has also opened the door for a new type of injury, classifications of workers, and unknown and unforeseen consequences of the long-term health effects of COVID-19. At the start of the pandemic, I drafted an article and outline of the current legislation, breakdown of presumptions, exceptions, and employer/insured responsibilities. I wish now to provide an update on a few interesting pieces of legislation and caselaw that I think will impact Workers’ Compensation for years to come: California Code of Civil Procedure (CCP) 337.34 – decedent’s cause of action Why am I mentioning the CCP in Workers’ Compensation? While we mainly deal with the Labor Code and accompanying Regulations, the CCP does occasionally get referenced as a liberal WCAB interpretation of individual cases impacts industrial causation findings on a regular basis. Additionally, the delays caused by COVID-19 are significant in many areas. Limited calendar slots for appearances and staff at the WCAB to handle filings. Delays in medical care. Litigation over remote appearances, both legal and medical. And in the midst of it all, we do have cases in which the applicant unexpectedly dies during discovery on a case. When that occurs, we then litigate the issue of accrued benefits and occasionally I have had to go to trial over what benefits were actually “accumulated” versus “speculative” or “unrealized,” if you will. In the civil arena, if a plaintiff dies before trial, non-economic damages are taken off the table. The legislature amended the CCP 337.34 by adding: “In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” I see no reason why a diligent applicant’s attorney could not try to stretch this argument into the Workers’ Compensation arena by arguing that due to unforeseen and inevitable delays, the now deceased applicant (through his representative and/or estate) should not be denied due compensation in the same manner as would be obtained if the applicant were living and fully litigated their claim. I can also see a similar argument even in the absence of delays in discovery, using the argument that the defendant should still be liable for all benefits accrued or not, and that a trial should be allowed to proceed on all issues and let the chips fall where they may. I have already seen rough arguments on these points in the past. Perhaps I am just being overly cautious. Perhaps I am a conspiracy theorist. Either way, I never cease to be amazed by some of the arguments I encounter on a regular basis by applicant’s counsel who pursues all species of benefits for their client. I could write pages on potential defenses to this possible argument, but for now, I will just throw out the possibility of the argument being made. This law is temporary for a period of four years and requires Plaintiff’s recovering damages between 1/1/22 and 7/31/24 to submit documentation to the Judicial Council to allow them the opportunity to study the impact of the law and make recommendations to the California legislature. I cannot imagine there will be a strong push to turn this temporary law into a permanent one. Emergency mandates and remote appearences Relying upon an extensive survey of one (yours truly) with some calls, emails and word of mouth assessment of a few others, it has been my experience that productivity and communication with client and opposition alike has been greatly enhanced with remote appearance options. If I could wave my magic wand, all non-Trial/Expedited appearances would continue to be held remotely, permanently. I disagree with the assertion that in-person attendance is always needed to feel out the opposing party and their position and to truly understand their article. I recall reading an article last year that addressed the opinions of a few of my colleagues regarding the good and bad of remote appearances and for the most part, both the applicant side and the defense side seemed to agree that the process made litigation overall more efficient. While I echo their comments regarding some appearances likely needing to continue in person, such as Trials and Expedited Hearings, even some of those appearances would be just as efficient via video conference as they would be in person (i.e. simple benefit or treatment issues, lien issues, etc.). Aside from the occasional attorney/representative forgetting to mute their phone or forgetting how to unmute when called upon, I have found that appearances run smoother and the parties are forced to proceed with a discussion well in advance of an appearance. Take for example, a “typical” appearance prior to COVID-19. I would almost always arrive on time for the start of the appearance (not perfect mind you, but I am a stickler for on-time attendance), after enduring traffic and parking woes. For the most part, opposing counsel would be on time but could also be late (some defense attorneys and applicant’s attorneys are always late). Then comes the task of finding your dance partner, which could take 15-20 minutes alone depending on if one or both of you have multiple appearances. Then we deal with the social component with lawyers and representatives alike shooting the bull in the hallway. Admittedly, I am not usually drawn into extended conversations

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ALL hearings will be held virtually until further notice

COVID-19, Workers' Compenstation / admin

ALL hearings will be held virtually until further notice Siegel, Moreno & Stettler has received updated information from the DWC regarding remote appearances in light of the recent increase in COVID-19 cases due to the Omnicron variant. Per release #2022-05, effective 1/12/22, ALL hearings will be held virtually until further notice. THIS INCLUDES TRIAL, LIEN TRIALS, EXPEDITED HEARINGS, AND SPECIAL ADJUDICATION UNIT (SAU) TRIALS. These appearances were previously assigned to in-person attendance, unless an exception or granted Petition applied. All other appearances will continue to be held remotely using the Judge conference lines that can be found on the DWC conference page. A copy of the link to the Newsline can be found HERE. Siegel, Moreno & Stettler has taken great strides to ensure the safety of our attorneys and staff members while continuing to provide premier services for our clients. Our attorneys have remote access to all appearances and can be reached via their office lines as well as cell phones, email, fax, and other means. We encourage all of our clients to reach out to all attorneys and support staff with any questions or needs and to provide as many means of contact as they may have at their disposal. Check back for further updates on the pandemic and its impact on Workers’ Compensation matters. Be safe! Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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A story of in-person litigation in the new normal

Subrogation / admin

A story of in-person litigation in the new normal The month was April, the year: 2021. Most California counties had ceased civil jury trials for about a year and the previous winter had been especially deadly for our state. It was a sad time; friends and coworkers near and dear got very sick and loved ones were lost. The county where this subject workers’ compensation subrogation case was venued had not yet held a civil jury since closing for Covid in 2020. But our trial date of April 19, 2021 was fast approaching. All counsel involved in the case were reaching out to their contacts to determine if any jury trials were even happening. The courts in California had been purposely closed-lipped about trial dates to force parties to continue to litigate, prepare for trial and hopefully settle in order to ease the tsunami of cases set to bear down on a court system. The answer that all counsel got was unanimous: “There is no way your case is going out for trial.” Then came the call from the court. They set an emergency Mandatory Settlement Conference by Zoom, of course, to try to get our case resolved. When that failed the Judge came into the group chat room and told us news we were all equally shocked to hear: our case was assigned a courtroom and trial was going to start on schedule. The date of injury of this case was 2016. The case was close to violating the rule requiring cases to be tried or dismissed within five years. So, our case had priority. We were going to be the first Covid jury trial to go out in that department since the shutdown began. Even though the news was delivered firsthand, there was still a feeling that it was not actually going to start. Nonetheless, the crazy rush trial prep began. Fifteen expert depositions in two weeks, all done by remote means. Nonstop trial prep and document exchange all done by eservice. Seventy-hour work weeks. It was really happening. Flying up for the trial was my first time on a plane, in an Uber and in a hotel since March 2020. When I arrived in the city, one of the largest in the nation, it felt like a ghost town. The storefronts were shuttered. There was no one on the streets. The hotel was vacant and only operating with a skeleton crew and very minimal amenities. It felt more like a post-apocalyptic movie than real life. The trial started. The courthouse was empty: no one in the hallways, no line to go through metal detectors, no sign of attorneys or staff or jurors or the public. It felt like the courthouse was all ours. The Judge informed us that we were all–judge, deputy, clerk included–guinea pigs in the first post-Covid jury trial experience. Masks were always mandatory. No eating! Drinking was only permitted by straw with a very specific method of lifting the mask up, not pulling it down. Social distancing requirements were in place. No more than one counsel at a table. Extra tables had to be brought in. Mine was a small folding table I shared with the AV console – but that’s subrogation for you. No walking around the well! Openings, closings, direct and cross would all be done while seated (and wearing a mask, of course). Imagine a trial where the jury never gets to see anything but counsel’s eyes. Same with all the witnesses. So much of what we have learned as people, how to read credibility and build rapport, is based on reading faces. How was this going to work when that key feature of human interaction was not in play? Would the jury be able to tell who they liked and did not like? Could they tell who they believed and did not believe without seeing lips and expressions? Humor, anger, sadness, and seriousness is all expressed in the face. Would the jury recognize a light joke without the accompanying smile? Another issue with testimony, in addition to masks, was that many witnesses would be permitted to appear by Zoom. The court was encouraging remote testimony, if possible, to alleviate courthouse capacity concerns. The jury questionnaire was geared towards vetting these issues and testing the jurors’ bias against masks and remote testimony. The answers bore out these issues as potential jurors raised concerns about the failure of witnesses to testify in person and expressed concerns about the veracity of remote testimony. Jury selection was one of the more dramatic differences. Only sixteen jurors were allowed in the room at a time for voir dire. That meant counsel had to do the same voir dire set over and over and over again for the nine groups of jurors that were brought up. Many jurors were excused because of fears of catching the virus, caring for loved ones with the virus, childcare issues due to schools being remote due to the pandemic and vaccination appointments. Sometimes out of a group of sixteen only six jurors would be viable after COVID-related excuses were done with. Once the jury was finally empaneled, they were not allowed in the jury box. The jurors were spread out throughout the galley area where the public would normally sit. Yes, that always meant that the attorneys had their backs to the jury. We could not see their faces, their reactions, nor their note taking in response to witness direct and cross. For the most part we had no idea what their reactions were; we had few clues as trial progressed as to what was going through their minds. Witnesses were confined to the back corner of the court room to stay as far away from everyone else as possible. This required all parties to chip in funds to have the courtroom completely wired and fitted with large monitors in three areas of the courtroom. The witnesses talked to a computer on the witness stand which then projected the

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AB 685 and SB 1159 made simple

COVID-19, Workers' Compenstation / admin

AB 685 and SB 1159 made simple The ongoing coronavirus pandemic has upended lives and disrupted a number of industries. The legal world – specifically the workers’ compensation space – is not immune and has been affected by a number of bills, now laws, in California. The root of these legislative moves has been: to what extent can employers be held liable for a worker’s exposure to COVID-19? The answer, for now, has come in the form of two laws: Assembly Bill 685 and Senate Bill 1159. In an effort to disambiguate these laws, I have outlined them. Feel free to download the outlines and contact mewith any questions. AB 685 Signed by Governor Gavin Newsom on September 17, 2020, AB 685 allows the state to track COVID-19 cases at workplaces more closely. The law further allows CAL/OSHA to expand its use of Stop Work Orders to help slow the spread of the virus in situations where workplace transmission has been deemed hazardous or imminent. SB 1159 Also signed into law on September 17, 2020, SB 1159 creates a rebuttable presumption of workers’ compensation liability for COVID-19 illness claims. For now, the presumption is in effect until January 1, 2023. Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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County-specific guidelines – September 18

COVID-19, Subrogation / admin

County-specific guidelines – September 18 We’re continuing to monitor the California Superior Court’s response to COVID-19. One thing can be said for sure: no uniformity is emerging as to how each of the 58 California counties are responding to the pandemic. Some of the more rural counties (think Trinity, Lassen, Del Norte) are business as usual – barring disruptions caused by wildfires – while more urban jurisdictions (Los Angeles, San Diego, San Francisco) have more or less thrown their hands in the air. These counties have postponed most civil cases indefinitely. They say the wheels will start moving in 2021, but who knows? Add to that, California as a whole has a $168 million shortfall in its budget for trial court operations due to COVID-19 crisis. This has resulted in some jurisdictions moving to fully remote operations, furloughing staff and/or closing courthouses altogether. Take a look at our updated REPORT on how each county superior court is responding to the pandemic. After months of monitoring the situation at the county level, we have learned that some counties are fairly agile and adaptive. Others seem to lack a clear strategy (see: all of the counties in the report that are listed as “no update” month after month). That’s California, though: The Wild West. All of the counties get to decide for themselves how justice is handled in their respective constituencies. It’s been that way since 1849. Lucky for you, SMS Subrogation practices Statewide in all 58 jurisdictions so you do not need to solve this confusing puzzle. Let us handle that for you. We are a phone call or email away and willing to answer any questions you may have. Stay safe – SMS Subrogation Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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County-specific guidelines – August 5

COVID-19, Subrogation / admin

County-specific guidelines – August 5 We’re continuing to monitor the California Superior Court’s response to COVID-19. Last month, we saw a loosening of restrictions. August, however, brings a mixed bag as California grapples with a surge in COVID-19 cases. While the state sets rules as far as statutes of limitations, each of the 58 counties can decide for themselves to what extent their courts are operating. Some smaller jurisdictions that were previously spared the worst of the pandemic (Butte and Imperial Counties, to name a few) have now greatly restricted court access as cases there have spiked. Other larger jurisdictions, like Marin and Orange Counties are proceeding as though remote court proceedings are going to be the norm. These jurisdictions and others have invested in new remote conferencing technologies that don’t seem temporary. In another interesting finding, a lot of courts are moving away from CourtCall in favor of the pandemic’s darling platform, Zoom. To see where each county stands, refer to our updated REPORT. Please reach out to us with any questions! Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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County-specific guidelines – June 25

COVID-19, Subrogation / admin

County-specific guidelines – June 25 We’re continuing to monitor the California Superior Court’s response to COVID-19. It’s a mixed bag. Some courts are fully open with social distancing rules in place, others are still deferring to ZOOM and CourtCall. Others are, shall we say, vague. For those, we will reach out for specifics when necessary. To see where each county stands, refer to our updated REPORT. Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

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