In our 2023 recap, there were some important workers’ comp cases reviewed at the appellate court level. In brief summary, here are a few you may have missed:

  • Kuciemba v. Victory Woodworks – a spouse contracted COVID from their partner’s alleged workplace exposure. The court confirmed the employer does not have a duty of care to nonemployees in this context of COVID as it would impose an intolerable burden on employers and society in contravention of public policy. Employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.
  • Vann v. City and County of San Francisco – a San Francisco Fire Department firefighter was injured when a San Francisco Muni bus driver drove into an emergency scene. This claim was barred from a civil tort action by the workers’ compensation exclusive remedy despite fact that the accident was caused by worker from a different city department.
  • Jose Velasquez v. WCAB (The Salvation Army) – a person injured while working at warehouse while in a residential rehabilitation program as condition of probation was not considered an employee of the company that operated the program.
  • Zurich American Insurance v. WCAB (CIGA) – per Labor Code 5909 the WCAB loses jurisdiction to consider a petition for reconsideration after 60 days have passed and the petitioner has 45 days to seek a writ of review with the appellate courts. This requires parties to stay on top of deadlines of appeal even when the WCAB takes no action.

While not an appellate court decision, the following en banc case important to remember as well:

  • Grace Nunes v. State of California and Dept. of Motor Vehicles (WCAB en banc) – Considered Nunes II, this case breaks down the rules regarding use of vocational expert opinion in cases where apportionment is an issue. The WCAB confirmed that medical apportionment is the standard under Labor Code 4663, not vocational apportionment as determined by the VR expert.