Workers’ Compenstation

Revisiting the See’s Candies (Ek) decision and employer duty of care A number of months ago, I completed an assessment of the See’s Candies Inc. v. Superior Court (Ek) decision. For a review, please visit this post for more background. The See’s decision discussed the long- standing Derivative Injury doctrine, which is a doctrine that states Workers’ Compensation exclusivity applies to all claims that are collateral to or derivative of a compensable injury in the Workers’ Compensation injury. It was my opinion that the case potentially put a large dent in this exclusive remedy rule, thus opening the potential for sizeable and I would argue, largely unforeseeable liability for employers who already face some heavy burdens in this system of ours. In April, after reviewing the lower court and appellate decisions, the Supreme Court declined to review this decision without comment after See’s Candies petitioned the December, 2021 decision of the 2 nd District Court of Appeal (see See’s Candies Inc. v. Los Angeles Superior Court et al.). The final decision of this case in essence bars a claim where it is a legal impossibility to state a cause of action without alleging a disabling or lethal injury to an employee. However, it does not bar claims with only a causal link to an industrial injury. But is this the end? Have we reached the finality of employer liability? No! The issue over duty of care of the employer was not addressed. Which is the second issue a party will need to address to successfully prevail in a tort action. Why was it not addressed? I think it was the decision of the court to not address this issue due to another case making its rounds through the lower courts at the time See’s Candies was headed up to the Supreme Court. Enter Kuciemba v. Victory Woodworks, 2021 U.S. Dist. LEXIS 88997; 2022 U.S. App. LEXIS 10786 9 th Circuit Court of Appeals. Some of the facts of this case ring similar to that of See’s, though there are some distinct differences. In the Kuciemba matter, both the employee and his spouse were hospitalized due to COVID-19 he contracted at work. The spouse sued for damages alleging negligence and public nuisance while her spouse sued for loss of consortium. Initially, the Federal District Court granted the employer’s motion to dismiss under the Exclusive Remedy doctrine, though the Court of Appeals certified specific questions related to COVID to the Supreme Court of California. The Supreme Court will ultimately address two issues. First, if the Derivative Injury rule bars the claims of the couple. Second, whether the employer owes a duty of ordinary care to members of the household. And thus, the second issue not addressed in See’s appears to be on its way to being answered. Basic Tort law addresses duty of care and negligence all the time but the big unanswered question is how far does that duty extend? While there is a general duty for employers to provide employees with a safe work environment, it is my opinion that opening the door to the household of the employee as wide as both See’s and Kuciemba would potentially allow would be disastrous to employers and employees alike. And with COVID-19 and the resulting changes with remote employment opportunities which I believe has largely been a benefit to employer and employee alike, we would likely see a very rapid return to in-person work only so that the employer can better control the “workplace” and potential liability in general. The employer duty to the household was addressed in another case that does give us a roadmap of sorts as to the thoughts of the State of California in imposing liability on the employer for incidents that occur in the home. The Colonial Van decision (see Colonial Van & Storage, Inc. v. Superior Court, 76 Cal. App. 5 th 487 (2022), which involved a most unfortunate series of events, discussed a duty of care in the home. In that case, a married couple both worked for the company. The wife was a supervisor and could work from home. She often invited co workers to her home for work-related meetings and other events. One evening, they invited a coworker and business associate (and sadly, an infant also was in the home) to dinner where they discussed both work and non work-related items and tasks. Their son, who suffered from PTSD, suddenly left the dinner table and returned with a firearm and started shooting, killing his stepfather and wounding everyone else. Colonial and the employee were sued for negligence and intentional infliction of emotional distress. On Writ of Petition to the Court of Appeal, the court addressed the issue of whether an employer has a duty to address safety of persons at an off-site work location from third party action. Ultimately, the case was dismissed with the court concluding that an employer does not have a duty to protect work from home employees from third-party criminal conduct. The court analyzed if the employer had a duty to protect employee’s at home, which is a location they do not own nor possess. They ultimately refused to impose a duty, at least as it pertains to tortious activity of a third party. Next, they considered if the employer was deemed to have exercised control over the employee’s home if it enjoys a commercial benefit from the use of the home. Ultimately, a mere commercial benefit was not sufficient. Next, the court held that an injured coworker could not rely upon an employer-employee relationship to impose a duty on the employer. Next, the Court determined that the harm was not foreseeable and that Colonial had no actual knowledge of risk. Finally, the Court considered public policy against imposing liability. In essence, they claimed that public policy weighed heavily against imposing a duty against the employer, arguing that liability for the employer would create an “unrealistic obligation.” With this case in mind, a determination of employer liability in the

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

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

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

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

What does the caselaw say? There is no doubt that everyone who participates in the current Workers’ Compensation system has been affected by the spread of the COVID-19 virus. And, it is not surprising to me that employers, carriers, examiners and attorneys alike are wondering what life after containment of the virus will bring to our little world of litigation. These changes include not only changes to the workplace, changes at the WCAB, but also with the filing of COVID-19 cases against employers. In the past few weeks, I have been given the opportunity to participate in a roundtable with clients and employers, and I drafted a memo regarding relevant Labor Code sections and an overview on the initial claim investigation process. And in preparation for these events, I have scoured caselaw to find out what it says about a claim for exposure to a virus or other infection. My search results are below. What does the caselaw say? Anyone who practices or works in our little world is well aware of the liberal nature of claim compensability in general. A virus or bacteria exposure at work is no exception. As is with any injury, the applicant has the burden of proving with a “reasonable probability” that the disability (i.e. COVID-19 exposure), occurred during the course and scope of employment. McAllister v. Workmen’s Comp. App. Bd. (1968) 69 Cal. 2d 408. However, caselaw also establishes that there can be significant difficulty in determining injury when the source is unknown or unclear, thus establishing a narrower rule specifically for infectious diseases. As stated in the LaTourette decision, “[I]n the area of nonoccupational disease, [t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.”…“The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease.” LaTourette v. WCAB (1998) 17 Cal.4th 644, 654. The opinion expressed in LaTourette is elaborated on further in the Pacific Employers decision, which states that simply because an applicant becomes ill and happens to be employed at the time of illness, this does not create the nexus needed to establish causation. Pacific Employers v. IAC (1942) 19 Cal.2d 622. Nevertheless, as is common with all workplace injuries, the burden is quite low. The applicant only has to provide a “reasonable” or “probable” causal connection to prove the source of any contagion or disease through a preponderance of the evidence. McAllister, supra, at 416-418. Bringing us full circle back to the injury as plead by the applicant, the caselaw identifies two exceptions to the compensability dilemma for a disease that would generally be considered non-occupational. They are: The employment subjects the employee to an increased risk compared to that of the general public. LaTourette, supra, at 654. Or, The immediate cause of the injury is an intervening human agency or instrumentality of the employment. LaTourette, supra at 654. For the first exception, there is plenty of caselaw to guide us in determining what exactly is an “increased risk” when compared to the general public. If there is a greater risk of exposure in the workplace as opposed to risk in the general public, an injury may be deemed industrial. For example, as quoted in the LaTourette decision, the Pacific Employers decision found that an applicant’s contracting of Valley fever was compensable due to multiple work trips to the San Joaquin Valley and Arizona regions which has mold and fungus in the soil that causes said condition. LaTourette, supra, at 654, Pacific Employers, supra, at 622. The court determined that the applicant lacked an immunity to this condition that local residents would have developed and as such was placed at greater risk than that of the general public. In Bethlehem Steel, the court determined that contracting the eye disease of keratoconjunctivitis was a compensable injury for a shipyard worker. Although this was a disease that was contagious throughout the San Francisco bay area in general, the Supreme Court determined that the shipyards of the San Francisco area had a greater proportion of employees exposed at the work site than the general population. Bethlehem Steel Co. v. IAC (1943) 21 Cal. 2d 742. As such, the injury as allegedly contracted while working was deemed industrial. Finally, we have the Bradley decision, which determined that a Hepatitis B infection was industrial despite no evidence of a specific incident of exposure, given that a detective was exposed on a regular basis to drugs and drug paraphernalia, thus creating a higher risk exposure. City of Fresno v. Workers’ Comp. Appeals Bd. (Bradley) (1992) 57 Cal.Comp.Cases 375. For the second exception, we can turn to the case of Maher v. WCAB (1983) 33 Cal. 3d 729, wherein a nurse’s assistant who had pre-existing tuberculosis received treatment while still working her usual and customary duties. After suffering from an adverse reaction to her medication, she filed a claim for her injuries. The Supreme Court decided that the required medical treatment that was needed to continue working resulted in an industrial injury, even if the condition itself was non-industrial. Let us not forget that once again, that ultimate burden borne by the applicant is still rather low, even for exposure cases. Indeed, per Guerra, “a medical opinion that industrial causation was ‘“not zero’” was sufficient contribution… ”. Guerra v. Workers ’ Comp. Appeals Bd. (Guerra) (2016) 246 Cal.App.4th 1301, 1310 quoting South Coast Framing v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 303. Work from home During a conversation I had with a