Priority Conferences are a mechanism to address disputes related to employment status or injury arising out of or in the course of employment. As the name suggests, these hearings are given priority calendar in order to resolve the disputes as soon as practicable. But what happens at such a hearing when discovery regarding the existence or non-existence of a workplace COVID-19 outbreak is incomplete or has not started? The answer will vary on a case-by-case basis, but in one case a panel of Commissioners granted removal and rescinded the trial judge’s order closing discovery and setting the matter for trial.
In Payan v. West Coast Auto Sales (2021) 2021 Cal. Wrk. Comp. P.D. LEXIS 222 (panel decision), a worker contracted COVID-19 on July 12, 2020. Approximately 7 months later, on February 9, 2021 an Application was filed claiming the employee died as a result of the COVID-19 infection. A Priority Conference was held on July 21, 2021 at which time discovery was closed and the matter was set for trial over applicant’s objection. Applicant contended that additional time was necessary to obtain a Qualified Medical Evaluation and to conduct discovery on whether a workplace outbreak existed at the time the employee contracted COVID-19.
In the non-first responders setting, the rebuttable presumption of compensability will only apply in COVID-19 claims if it has been established there is a workplace outbreak. (See Labor Code section 3212.88) Although more than five months had passed from the time the Application was filed until trial setting (and approximately one year from the time of contraction), the panel of Commissioners agreed to allow additional time for discovery. The primary reason given was that an incorrect employer’s insurer was initially joined. It was not until May 27, 2021 that the correct insurer was joined. The Commissioners noted it was reasonable to delay obtaining a Qualified Medical Evaluation until the correct insurer was joined. Additionally, it was observed that it would be unlikely for a Qualified Medical Evaluator to opine on whether Covid-19 was contracted at work without having information from the employer about possible workplace exposures or outbreaks.
It is not clear from the available facts whether any discovery was undertaken regarding a potential workplace outbreak during the first several months after the Application was filed. The Commissioners did comment that “cases involving infectious diseases often require more complex discovery.” Outcomes will turn on the specific facts of each case, but practitioners should keep in mind Labor Code section 5502(c) which affords discretion to the Priority Conference judge to “set the matter for trial when discovery is complete, or when the workers’ compensation administrative law judge determines that the parties have had sufficient time in which to complete reasonable discovery.”
Lastly, please keep in mind this case is a panel decision, which is not binding precedent and has no stare decisis effect.