WHAT’S IN STORE FOR 2020?

BY: COREY A. INGBER

Success consists of going from failure to failure without loss of enthusiasm” …. Winston Churchill

EDITOR’S NOTE:  I chose this quote because I am not only a long-standing fan of Winston Churchill but also because defense work can seem like a series of tribulations before some dawn of light emerges.   Last month, I toured the Churchill War Rooms at the Imperial War Museums in London.  I was moved by the size and scope of his large warren of underground operations and how he and his military staff managed a war, without the benefits of modern technology and while bombs rained horrifically upon Great Britain, including London, for eight straight months.  

As the holiday season unfolds and the year winds down to the end, I know you have much on your workers’ compensation plate so this will be simple and brief.  Here are some things you may want to know for 2020:

  • MINIMUM WAGE TO INCREASE AS OF 01/01/2020:  California’s minimum wage goes up to $13.00 per hour for employers with 26 or more employees and $12.00 for employers with 25 or fewer employees.  There will be another increase to $14.00/$13.00 on 01/01/2021 and then to $15.00/$14.00 on 01/01/2022.[i]
  • AB 5 GOES INTO EFFECT:  For purposes of wage orders, the effective date is 01/01/2020. For workers’ compensation purposes, AB 5 goes into effect only for injuries on or after 07/01/2010.[ii] Under AB 5, there is an operative presumption that a worker will be deemed an employee unless the employer can disprove the presumption using the “ABC” test made applicable in the Dynamex decision.  Section 2750.3 is added to the Labor Code, incorporating the “ABC” test.[iii]  I am expecting to see more litigation over this new standard, not because the standard is harder for defendants (It is) but rather it could encourage applicant attorneys to file cases for types of workers’ which had previously been considered as independent contractors  (E.g. Uber and Lyft drivers)
  • PEACE OFFICERS AND FIREFIGHERS: NEW PRESUMPTION ADDED:  SENATE BILL 542.   Post-Traumatic Stress Disorder (“PTSD”) will now be recognized as an actual and separate injury and subject to a rebuttable presumption.  The Peace Officer or Firefighter would ordinarily have to have a minimum of 6 months of service, in order to get the presumption, unless the injury arises from an employment event which is “sudden and extraordinary.”    This new presumption extends following the termination of employment at the rate of 3 calendar months for each full year of requisite service, not to exceed 60 months.  This new presumption, while ostensibly confined only to “PTSD,” seems to essentially create a potential new presumption for other psyche injuries, since PTSD is to be diagnosed per the DSM.  Will this encourage more psyche claims?  I believe that it will motivate some applicant attorneys, specializing in this area of practice, to take a serious look and yes, it could likely make psyche claims easier to prosecute, even if they only have a component of PTSD. 
  • WHAT TO EXPECT FROM THE APPLICANT ATTORNEYS?   I look no further than the most recent CAAA Convention materials[iv], in order to glean some insights into what issues might be highlighted next year:
  • The Impact of Trauma on Brain Chemistry
  • The Lost Art of Penalties
  • PQME disputes – Advocacy letters / information vs communication
  • Proving Industrial Causation in Internal Medicine Cumulative Trauma Cases

[i] Department of Industrial Relations News Release 12/05/2019

[ii] AB 5 will not take effect retroactively

[iii][iii] A-The person is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance and in fact;  B—The person performs work that is outside the usual course of the hiring entities business;  C—The person is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.  (See my Blog at our web site:  http://www.icomplaw.com/ab-5-explained/

[iv] CAAA Summer Convention 06/20/2019-06/22/2019. Convention Schedule and Syllabus

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