Tag: 2025 News

For half a century, the medical world has classified traumatic brain injuries using essentially the same tool: the Glasgow Coma Scale, a bedside scoring system developed in 1974 that rates a patient’s eye opening, verbal responses, and motor function on a 15-point scale. A score of 13 to 15 is “mild,” 9 to 12 is “moderate,” and 3 to 8 is “severe.” That three-tier system has driven clinical decision-making, research design, insurance determinations, and — critically for this audience — workers’ compensation claims adjudication for decades.

That system is now being replaced. In May 2025, an international team of 94 experts from 14 countries, led by the National Institutes of Health and the National Institute of Neurological Disorders and Stroke, published a new classification framework in The Lancet Neurology. Called CBI-M, it represents the most significant change in how traumatic brain injuries are assessed and categorized since the Glasgow Coma Scale was introduced. Trauma centers nationwide are beginning to test it, and workers’ compensation professionals handling head injury claims need to understand what is coming.

The problem with the mild/moderate/severe classification is not that it is inaccurate — it is that it is incomplete. Within the “mild” TBI category alone, there is enormous variation. One patient might sustain a brief blow to the head with no loss of consciousness and a momentary gap in memory. Another patient in the same “mild” category might lose consciousness for 20 minutes and have a small brain bleed visible on imaging. Under the current system, both receive the same classification, the same label, and — too often — the same clinical follow-up, which for “mild” TBI frequently means discharge from the emergency department with minimal arrangements for ongoing care.

The new framework does not discard the Glasgow Coma Scale — it expands on it. CBI-M stands for Clinical, Biomarker, Imaging, and Modifier, representing four pillars of assessment that together provide a multidimensional picture of the injury rather than a single number.

The clinical pillar retains the Glasgow Coma Scale but uses each component score individually rather than collapsing them into a single sum. It also incorporates pupillary reactivity — whether the pupils respond normally to light — which is a significant predictor of outcomes that the traditional GCS sum score alone does not capture.

The biomarker pillar is entirely new to TBI classification. It incorporates blood-based measures that can detect the presence and extent of brain injury. The FDA approved the first blood test for brain injury in 2018, and the technology has advanced rapidly since. Specific proteins released when brain tissue is damaged — including glial fibrillary acidic protein (GFAP), ubiquitin C-terminal hydrolase L1 (UCH-L1), and S100 calcium-binding protein B (S100B) — can now be measured from a standard blood draw within hours of injury. Elevated levels indicate that brain injury has occurred, even when the patient’s clinical presentation appears mild and CT imaging looks normal.

The imaging pillar formalizes the role of brain imaging — CT and MRI — in characterizing the injury. Rather than simply asking whether a scan is “positive” or “negative,” the framework categorizes the specific types of pathology present, such as contusions, hemorrhages, or diffuse axonal injury, each of which carries different implications for recovery.

The modifier pillar accounts for individual factors that influence clinical presentation and outcome: the mechanism of injury, the patient’s age, preexisting medical conditions, prior head injuries, and psychosocial factors. These modifiers have always been relevant to prognosis, but the current classification system ignores them entirely.

Independent medical examinations will need to adapt. Medical evaluators who currently rely on the GCS classification to frame their opinions about injury severity and causation will need to engage with the new framework. The biomarker pillar deserves special attention because it introduces something the workers’ comp system has never had for traumatic brain injury: an objective, measurable indicator of injury that does not depend on patient self-reporting or clinical judgment. Brain injury has historically been one of the most difficult conditions to evaluate in the claims context precisely because it lacks the kind of objective evidence — an X-ray showing a fracture, an MRI showing a disc herniation — that other orthopedic injuries produce. Blood-based biomarkers change that equation.

This does not mean biomarker testing will resolve all disputes. Elevated protein levels indicate brain injury but do not, by themselves, predict the duration of symptoms or the degree of functional impairment. And the science is still maturing — reference ranges, timing windows for testing, and interpretation standards are all subjects of active research. But the direction is clear: TBI evaluation is moving from subjective to objective, and the workers’ comp system will need to keep pace.

The CBI-M framework is not yet in universal clinical use. The authors describe it as a framework that will require validation and refinement before full adoption. But it is being tested at trauma centers now, it was published in one of the world’s leading neurology journals, and it carries the imprimatur of the NIH. The trajectory is unmistakable.

For further reading, the CBI-M framework was published in The Lancet Neurology in May 2025: A New Characterisation of Acute Traumatic Brain Injury: The NIH-NINDS TBI Classification and Nomenclature Initiative. The NIH-NINDS also published an accessible summary: New Framework for Classifying Traumatic Brain Injury.

On the morning of Monday, September 12, 2022, Kai-Lin Chang was riding his bicycle on Victory Boulevard in West Hills when Dr. Brittany Doremus, a palliative care physician employed by Southern California Permanente Medical Group (SCPMG), made a left turn across his path while pulling into a dry cleaner’s parking lot to drop off her children’s Halloween costumes. Chang collided with her vehicle and was hospitalized with injuries. He sued both Doremus and SCPMG, alleging Doremus was acting within the scope of her employment at the time of the accident and that SCPMG was therefore vicariously liable under the doctrine of respondeat superior.

Doremus’s work schedule was not a simple nine-to-five arrangement. On Mondays and Tuesdays she worked at her office at the Woodland Hills Medical Center. On Wednesday mornings she could work from home, on Thursday and Friday she worked with patients at the medical center’s hospital, and when on call on nights or weekends she worked from home. SCPMG also provided its physicians with employer-issued cell phones equipped with special communication software. On the morning of the accident, Doremus testified she had left home around 8:30 a.m. to drive to the office and was on a purely personal errand — dropping off the costumes — when the collision occurred. She did not recall being on any call before the accident. Following the collision she called 911, then sent a group text to the nurse and social worker on her team to cancel her appointments for the day.

SCPMG produced a text message log from Doremus’s wireless carrier showing no texts between 8:30 and 8:44 a.m., with a cluster of messages beginning at 8:44 — the post-accident notifications to her coworkers. A call log showed no work calls before the accident.

The trial court granted SCPMG’s motion for summary judgment. The court found the going and coming rule plainly applied: Doremus was commuting to work on a Monday, as she did every week, and was in the middle of a personal errand — wholly unrelated to her employment — when the accident occurred. The court found no recognized exception to the rule applied: Doremus was driving her own personal vehicle that SCPMG neither provided nor required, she was on no special errand for her employer, and SCPMG derived no incidental benefit from her use of the vehicle. The court overruled Chang’s evidentiary objections to the call and text records, noting that Chang himself had relied on those same records in his opposition. Chang appealed.

The Second District affirmed summary judgment for SCPMG in full in the published case of Chang v. Southern California Permanente Medical Group Case No. B340770 (April 2026). The court awarded SCPMG its costs on appeal. The opinion was originally filed April 9, 2026 without publication, then certified for publication on April 28, 2026, with no change in judgment.

SCPMG met its burden of proof; Chang did not meet his. The court emphasized that in respondeat superior cases involving driver testimony, an employer does not have to eliminate every conceivable possibility of work activity — sworn testimony that the driver was not working is sufficient to shift the burden. Doremus’s deposition testimony that she was commuting on a personal errand, not on a call, and driving her own vehicle accomplished exactly that. Chang then had to offer admissible contradictory evidence, and he failed to do so.

The “hybrid worker” argument failed on the facts. Chang’s more novel contention was that because Doremus sometimes worked from home, her home had become a second worksite, and her Monday morning drive was therefore transit between worksites rather than an ordinary commute — placing her within the scope of employment. The court rejected this categorically. Doremus worked at the medical center on Mondays without exception. Even accepting the premise that a home can become a second worksite, it is only a worksite when the employee is actually working from home — not as a permanent all-day status. On Monday mornings Doremus was not working from home; she was driving to the office. The court found that none of the cases Chang cited — including Wilson v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181, 184, Bramall v. Workers’ Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, Zhu v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, and State Ins. Fund v. Industrial Commission (Utah 1964) 15 Utah 2d 363 — supported the proposition that a hybrid worker’s home is a second worksite on days when she is not working from it.

Workers’ compensation cases are the wrong measuring stick. The court also noted — pointedly, since Chang had himself argued below that workers’ compensation cases had “no applicability in tort cases” — that the going and coming rule as applied in tort is more restrictive than in workers’ compensation. Citing Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 619, the court observed that workers’ compensation law resolves any reasonable doubt in the employee’s favor, a policy tilt that does not carry over to third-party tort liability against employers.

Policy reinforced the holding. The court offered a final, practical observation: ruling for Chang would effectively abolish the going and coming rule for any employee who sometimes works from home, creating a perverse incentive for employers to curtail workplace flexibility to avoid expanded tort exposure. The court found no sound policy rationale for that result.

As we reported in our April 13, 2026 newsletter, Jeanette France worked as an occupational health nurse for the Los Angeles Department of Water and Power (DWP).On February 1, 2017 — less than a month after she had reported a work injury — the DWP terminated her employment. The DWP maintained that France was terminated for poor job performance that predated her injury.

France filed a civil lawsuit under the Fair Employment and Housing Act alleging disability discrimination and retaliation. In December 2019, the Los Angeles County Superior Court granted summary judgment for the DWP, finding that France was terminated for legitimate, nondiscriminatory reasons — namely, poor performance predating her injury — and that France failed to raise a triable issue of pretext.

France also filed a workers’ compensation petition alleging the DWP violated Labor Code section 132a, which prohibits employers from discharging employees for filing or threatening to file a workers’ compensation claim. After a multi-day hearing, the workers’ compensation judge denied the claim, finding that France failed to prove the termination was retaliatory in light of the performance evidence, and that she produced no evidence that those involved in terminating her even knew about her statements in the workers’ compensation meeting minutes earlier.

France sought reconsideration. The Workers’ Compensation Appeals Board (WCAB) granted the petition, reversed the judge, and found the DWP had violated section 132a. The WCAB concluded the DWP failed to carry its burden of establishing good cause for termination, emphasizing the absence of written disciplinary records, the lack of a stated reason on termination paperwork, and the fact that Dr. Israel could not recall exact dates for the performance issues she observed.

On April 8, 2026 the Court of Appeal granted the DWP’s petition for writ of review in the unpublished case of L.A. Department of Water & Power v. Workers’ Compensation Appeals Board Case No. E086551 (April 2026) and annulled the WCAB’s decision, directing the WCAB to reinstate the workers’ compensation judge’s original order denying France’s section 132a claim.

The Court of Appeal held on April 8th that the WCAB’s findings were unreasonable because the Board systematically ignored relevant evidence rather than evaluating the record as a whole. Specifically, the court identified several ways the WCAB mischaracterized the record, such as ignoring the superior court’s summary judgment order — part of the record — containing Israel’s declaration placing those issues in October and November 2016, well before the injury. The court stressed that the WCAB was free to weigh evidence and make credibility determinations, but it was not free to simply ignore evidence that cut against its conclusions.

The WCAB Petitioned the Court of Appeal for a Rehearing of the April 8 appellate decision against it. On April 27, 2026 the Court of Appeal issued and Order Denying Petition for Rehearing and Modifying Opinion [No Change in Judgment]

Footnote 2 on page 12 of the April 8, 2026 Court of Appeal decision it was noted that “At oral argument, counsel for the WCAB contended that the reporter’s transcript of the February 2025 hearing, at which both Barnett and Israel testified, was not available to the WCAB when it issued its decision. The contention is based entirely on matters outside the certified record, so we cannot consider it. (§ 5951.) The reporter’s transcript of the February 2025 hearing is part of the record of proceedings that counsel for the WCAB certified is “a full, true and correct copy of the record of proceedings (consisting of 9 volumes) before the Appeals Board in the above-entitled matter involving a claim by Jeanette France. We also note that the reporter’s transcript of the February 2025 hearing was certified by the reporter in April 2025, and the WCAB issued its decision in June 2025.”

On its own motion, the Court Ordered that the opinion filed April 8, 2026, be modified as follows. “At the end of footnote 2 on page 12, add the following paragraph:”

“The WCAB advances the same argument in its petition for rehearing, but the petition does not address or even mention the analysis in the first paragraph of this footnote. The WCAB argues that because it did not receive the reporter’s transcript before issuing its decision, we cannot rely on it.”

“But as we have explained, the WCAB’s assertion that it had not yet received the transcript when it issued its decision is based entirely on matters outside the certified record, so we are required by statute to reject it. (§ 5951 [“No new or additional evidence shall be introduced”].)”

“Again, the record certified by the WCAB contains the transcript, and we are required by statute to base our decision on the certified record. (Ibid. [“the cause shall be heard on the record of the appeals board, as certified to by it”].) In addition, as we explain post, the reporter’s transcript of the hearing is not the only evidence that the WCAB unreasonably ignored.“

“For example, the certified record contains both the order granting summary judgment in the FEHA action and excerpts of Okhanes’s deposition testimony, both of which include evidence of the problems with France’s job performance. The WCAB ignored all of that evidence, and that dereliction is not explained by the WCAB’s alleged lack of access to the reporter’s transcript of the hearing.”

“The modification does not change the judgment.”

Karla Amezcua worked as a massage therapist at an Eastlake Chula Vista location operated under the Massage Envy brand from August 2011 until she was terminated in December 2019. She sued in January 2022, alleging wrongful termination and a series of Labor Code violations — including an illegal compensation scheme that penalized her for taking legally mandated meal and rest breaks by reducing her hourly rate during those periods. Her original and first amended complaints named only the franchisee, Securecare, Inc., and its sole principal, Robert Perez, along with DOE defendants.

Discovery was protracted and contentious. Securecare initially represented it had no insurance and that documents related to the purchase of the franchise location had been “lost or misplaced.” The real picture did not emerge until December 2024 — after the close of discovery — when Securecare finally produced both a Business Asset and Franchise Purchase Agreement and an employment practices liability insurance policy. The Purchase Agreement, significantly, showed that Massage Envy had approved the 2018 sale and transfer of the franchise, with terms that Amezcua alleged were structured to leave employees unable to recover for wage and hour violations. The insurance policy, meanwhile, revealed a separate Perez-controlled entity as the primary insured, with Securecare covered only as an additional insured.

Armed with these late productions, Amezcua moved in December 2024 to substitute Massage Envy and three other parties for DOE defendants. The trial court granted the motion in January 2025, finding that while Amezcua had always known Massage Envy’s identity as the franchisor, she had not known the facts giving rise to its potential liability. Trial was continued to August 2025. Amezcua filed an amended complaint naming Massage Envy, but the amendment contained no new substantive allegations against it — the body of the pleading was unchanged from the prior version.

When Massage Envy sought to meet and confer about a demurrer in March 2025, Amezcua’s counsel conceded the complaint was factually deficient as to Massage Envy, but declined to amend at that stage, proposing instead to let the demurrer proceed so the trial court could assess both Massage Envy’s legal challenge and any proposed amendment in a single proceeding. Massage Envy filed its demurrer, asserting not only that the pleading lacked sufficient facts but also that Amezcua could not, as a matter of law, establish joint employer liability against a franchisor. Amezcua opposed the demurrer, attached a proposed second amended complaint alleging Massage Envy had developed the compensation matrix governing her pay and had structured the franchise sale to insulate itself from employee liability claims, and asked for leave to amend.

The trial court sustained Massage Envy’s demurrer and granted Amezcua leave to amend — but attached a condition: Amezcua had to pay Massage Envy’s attorney fees and costs incurred in the meet-and-confer process and in preparing the demurrer papers before she could proceed with the amended complaint. The court relied on Code of Civil Procedure section 473, subdivision (a), reasoning that Amezcua had missed at least two earlier opportunities to include substantive allegations against Massage Envy and that her litigation approach was “antithetical” to the purpose of the statutory meet-and-confer requirement. Massage Envy sought $78,668.90; the court found $25,000 reasonable. Amezcua sought writ relief.

The Court of Appeal granted the writ of mandate and directed the trial court to strike the attorney fee payment condition from its order in the published case of Amezcua v. Superior Court Case No. D087216 (April 2026). The court left undisturbed the portions of the order sustaining the demurrer and granting leave to amend; only the fee-shifting condition was invalidated.

Section 473 does not authorize fee-shifting. The court opened with the foundational rule of California attorney fee law: courts may not order one party to pay another’s attorney fees unless a statute specifically authorizes it or the parties have agreed to it. (Code Civ. Proc., § 1021.) Section 473, subdivision (a), the court held, contains no such authorization. Its language permits leave to amend on “terms as may be proper” and, when a trial postponement is required, on “payment to the adverse party of any costs as may be just” — but costs and attorney fees are not the same thing, and the Legislature chose the word “costs,” not “fees.”

The leading treatises had it wrong. The court acknowledged candidly that several authoritative secondary sources — the Rutter Group’s California Practice Guide: Civil Procedure Before Trial, California Jurisprudence, and Witkin’s California Procedure — had interpreted case law to permit fee-shifting under section 473. The court declined to read the precedents so broadly, conducting a careful textual analysis of the two cases those treatises relied upon. Fuller v. Vista Del Arroyo Hotel (1941) 42 Cal.App.2d 400 never mentioned attorney fees at all and could not be read as endorsing them. Williams v. Myer (1907) 150 Cal. 714 referred to “expenses incurred in the employment of attorneys,” but the court found this an oddly oblique way to say “attorney fees” — and concluded the Supreme Court would not have quietly overridden California’s longstanding American Rule (each party pays its own fees) without saying so explicitly. In any event, the court held that whatever Williams may have permitted, it was superseded when the Legislature amended section 473 in 1933 to specifically address payment conditions when trial is postponed, limiting them to “costs,” and simultaneously amended section 1021 to require express statutory authorization for any attorney fee award.

The court confirmed the framework established in Bauguess v. Paine (1978) 22 Cal.3d 626, 639: trial courts have no inherent supervisory power to order payment of attorney fees as a sanction; such authority must come from statute. Statutes that do authorize fee sanctions — Code of Civil Procedure sections 128.5 and 128.7 — were neither invoked by either party nor by the trial court, and their procedural prerequisites (including a 21-day safe harbor and specific findings of bad faith or intent to harass) were never satisfied.

Brianna Davis worked as an EMT at Tri-City Medical Center. On May 15, 2018, she injured her back, neck, and legs on the job and filed a workers’ compensation claim. After a period of modified duty, Dr. Patrick O’Meara evaluated her in February 2019 and concluded she was not disabled, leading to her return to full duty in March 2019. Davis alleged she continued to suffer pain throughout, and on May 25, 2019, performing chest compressions for more than two hours caused a second industrial injury, for which she filed a new workers’ compensation claim.

Davis alleged that Corvel Corporation — the workers’ compensation claims administrator hired by Tri-City — and Corvel claims adjuster Rob Maag pressured Dr. O’Meara to falsify his medical findings so that Corvel could deny her benefits. Critically, Davis alleged that in a July 2019 medical report, Dr. O’Meara stated he had physically examined her when he had not, then falsely concluded she had reached maximum medical improvement and needed no work restrictions. She also alleged that Maag pressured a second physician, identified only as “Dr. M.,” to produce similar findings, and that when Dr. M. refused, Maag and others stopped referring patients to him. A third physician, Dr. Clarence Lee, allegedly refused to complete Davis’s disability paperwork for the California Employment Development Department due to pressure from the defendants.

Based on these allegations, Davis sued Corvel, Maag, and Dr. O’Meara for fraud and deceit under Civil Code sections 1709 and 1710, violations of the Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.), and conduct she characterized as a RICO violation under 18 U.S.C. section 1962(c). The case reached the trial court on Davis’s third amended complaint — her fourth attempt at pleading viable claims.

The trial court sustained demurrers filed by Corvel, Maag, and Dr. O’Meara without leave to amend and dismissed the claims against them. The court found that all of Davis’s alleged injuries arose from the workers’ compensation claims process — specifically, disputes over the extent of her injury and the appropriate level of treatment — and were therefore barred by the exclusivity provisions of the California Workers’ Compensation Act (WCA; Lab. Code § 3200 et seq.). The court rejected Davis’s argument that fraud-based conduct places claims outside the WCA’s reach, finding that allegations of improper denial or limitation of benefits, even if framed as a conspiracy or tortious scheme, remain squarely within the compensation bargain. The court also found that the RICO allegations failed because the TAC did not allege facts showing conduct affecting interstate commerce or a pattern of continuing racketeering activity. Dr. Lee, who did not demur, was not part of the dismissal.

The Fourth District Court of Appeal affirmed the dismissal in full in the unpublished case of Davis v. Corvel Corporation et al., Case No. D085457 (April 2026).  The court conducted a de novo review — the standard applicable when a demurrer has been sustained — and independently concluded that Davis’s claims fell within the WCA’s exclusivity bar. The appellate court also declined to grant further leave to amend, noting that Davis had already been allowed three rounds of amendments and offered no new facts or theories on appeal that could cure the deficiencies. The opinion was not certified for publication.

The workers’ compensation exclusivity doctrine is broad. The court traced the two-step analytical framework established by the California Supreme Court. First, courts ask whether the alleged injury falls within the scope of the WCA’s exclusive remedy provisions — meaning whether it is “collateral to or derivative of” a compensable workplace injury. Second, if it does, courts ask whether the acts or motives behind the claim fall outside the risks encompassed by the compensation bargain, such as by violating a fundamental policy of the state. Citing Vacanti v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 811–812, and King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051–1052, the court emphasized that the WCA covers not just the original workplace injury but all injuries stemming from the claims process itself, including wrongful delays or denials of benefits.

Fraud in the claims process is not enough to escape exclusivity. Davis argued that Dr. O’Meara’s false medical reports constituted “outright fraud” placing her claims outside the WCA — analogizing to cases where an insurer fraudulently denied the very existence of an insurance policy, or where an employer concealed a workplace hazard. The court rejected both analogies. Citing Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379, it distinguished cases involving denial of a policy’s existence from cases involving disputed benefit levels, finding the latter to be a normal part of the WCA process. It similarly distinguished Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, which involved concealment of a known occupational hazard from employees who were unaware of both the danger and their rights. Davis, by contrast, was aware of her injuries and her WCA rights throughout. What she alleged, at bottom, was that her benefits were improperly limited — a dispute the WCA process is designed to resolve.

Individual capacity and treating-physician status did not help. Davis argued that Maag was personally liable because he was sued individually rather than in his corporate role. The court rejected this, finding that Maag’s conduct — pressuring physicians to alter reports on Corvel’s behalf — was unambiguously part of the claims administration process. Citing Mitchell v. Scott Wetzel Services, Inc. (1991) 227 Cal.App.3d 1474, 1479, the court noted that even intentional refusal to pay benefits, with full knowledge of the hardship caused, does not avoid WCA exclusivity. As to Dr. O’Meara, Davis invoked the dual capacity doctrine from Duprey v. Shane (1952) 39 Cal.2d 781, which allows a physician to be sued in tort for negligently aggravating a patient’s injury through treatment. The court found Duprey inapplicable: Davis was not alleging a new physical injury caused by negligent medical care, but rather that falsified reports caused her to lose benefits. That is a claims-process injury, not a treatment injury — and the WCA provided a remedy she could have pursued before the Workers’ Compensation Appeals Board.