Young: Top 10 Developments in WC for First Half of 2020, Part 1

Monday, July 20, 2020 | 0

With 2020 half gone, its time for my annual midyear look at the most significant events in California workers’ comp to date. 

Julius Young

In a year unlike any other because of changes wrought by the COVID-19 pandemic, many of the top developments must be seen through that lens. But there were others as well.

Here are the first five of my picks for the top 10 developments in California workers’ comp for the first half of 2020. The second five will be published here tomorrow:

1. COVID changed operational models for almost all comp system stakeholders.

In response to the pandemic, Workers' Compensation Appeals Board district offices began holding conferences and hearings by phone. Many medical treatment services were switched to telehealth, as video and phone visits became the norm.

Defense attorneys and applicant attorneys agreed to handle most depositions on the Zoom platform. Many QME evals were canceled or rescheduled, though later on, some began to happen via video.

In most instances, claims offices, judges, attorneys and their staff worked remotely. The sudden uptick in unemployment seemed likely to affect the economics of the industry.

In June, the U.C. Berkeley Labor Center prepared an analysis of the impact of the COVID crisis on workers.

2. There is an ongoing issue of how the comp system will handle claims that a diagnosis of COVID arose out of and in the course of employment.

A raft of bills was introduced in the California Legislature to create a presumption of industrially related COVID. But Gov. Gavin Newsom was not to be left out of the conversation, and on May 6 he issued Executive Order N-62-20, which declared a presumption of compensability for COVID for workers who contracted a verified COVID diagnosis while working outside the home during the shelter-in-place order.

My post on Newsom’s order can be found here.

By midyear, bills that would create a conclusive presumption of compensability — AB 196 and AB 664 — seemed stalled. However, SB 1159, a bill to create a rebuttable presumption of COVID compensability, did receive a favorable California Senate vote on June 26 and proceeds to the California Assembly, though in its current form it does not extend a presumption for work performed after July 5.

3. As telecommuting became more prevalent, the Workers' Compensation Insurance Rating Bureau moved to adapt by proposing an update to its classification codes.

This included a proposal to create a classification for clerical telecommuter employees. A July 29 hearing on this has been scheduled by the California Department of Insurance.

4. AB 5 remained a hot political issue.

In early 2020, a number of bills were introduced in the Legislature to exempt various occupations from AB 5. Other bills were introduced to repeal or eliminate the reach of AB 5, which enshrined the “ABC test” of employment (used in the 2018 California Supreme Court Dynamex case) into California law. But legislative AB 5 repeal is not happening, and the fate of some of the exemption bills is not clear.

By midyear, it appeared unlikely that there would be any grand compromise between the gig-platform companies and labor and their allies. This sets up a major political battle between gig-economy companies and labor, likely to be one of the most expensive ballot campaigns California has ever seen.

The November election will include the Protect App-Based Drivers and Services Act, sponsored by Uber, Lyft, Door Dash and others, which would essentially nullify AB 5.

Meanwhile, a decision by the California Public Utilities Commission and a lawsuit by Attorney General Xavier Becerra were factors in the AB 5 saga. My post on that can be found here.

5. Some notable new regulations were promulgated.

Emergency qualified medical evaluator regs setting forth rules for telehealth evaluations went into effect May 14. Those regs can be found here.

And updates to the WCAB Rules of Practice and Procedure went into effect as of Jan. 1.

Come back tomorrow for Part 2 of the top 10 California comp developments from the first half of 2020.

Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.