Key Insights

The AVERAGE workers’ compensation settlement reaches about $35,000.

On an admitted claim, you can expect to see most, if not all, doctor bills paid timely throughout the litigation of the claim, so once a case is settled, reserves can be reduced and the case closed in most circumstances, aside from perhaps a return-to-work voucher of $4,000 if the applicant does not return to work for the employer.

Per the labor code, within one day of the employee filing a claim, the employer shall authorize treatment for the alleged injury and shall continue to provide treatment until liability is accepted or denied. Until the claim is accepted or denied, the employer is responsible for up to $10,000 in medical expenses.

On a denied claim, however, along with the settlement comes an average of 3 – 12+ liens on a file, including EDD (State Disability).

• When a denied file settles, that is not the end of litigation. Doctors, medical facilities, Diagnostic Imaging facilities, Health Care Organizations, and EDD can all file liens, with their invoices of outstanding charges for services performed. Exposure from these lien claimants can combine total balances of $25,000 – $100,000 easily. It is incumbent upon the employer to pay, adjust or litigate the liens to determine payment reimbursement.
• EDD lien exposure alone can be over $65,000, representing 1 year of temporary disability, if any doctor certifies the injured worker for TD.
• Continuous Trauma “injury” claims (“CT Claims”): Unlike a specific injury which can be verified more easily and admitted or denied based on factual and witness verification, continuous trauma claims are much more difficult to defend, as these generally cannot be defended on witness accounts or factual denials at all. Courts have required medical doctor findings to justify denying a continuous trauma claim. This results in the need to obtain costly medical evaluations as set forth below. A trial judge will NOT rely on any type of lay testimony to deny an applicant’s continuous trauma claim. We can only defend a CT claim if a doctor finds no injury; if we have a procedural defense, like failing to file a claim timely, (which is also construed liberally in favor of the applicant); or if we have a legal defense, like a post termination defense where we can prove the applicant neither treated or reported an injury prior to termination and only after the applicant becomes aware of the continuous trauma injury, then we can deny the CT claim without any medical evidence.
• In Southern California, the rate of continuous trauma claim filing and “skin and content” body part filings are a phenomenon. The vast majority of CT claims are filed in Los Angeles and 40% are filed following termination of the employee. There are many law firms that will attempt to add as many body parts as possible to increase the potential value of a claim to the injured worker through the compounding of permanent disability for each body part. Not only does that potentially increase the potential settlement exposure, but by doing so, it also adds substantial costs to the defense of such claims as follows:
  • Treatment liens in the various fields of medicine increase claim costs and potential exposure for significant liens, especially on denied claims. In admitted injury claims, we can control medical treatment costs somewhat better because we control the panel of doctors the injured worker is sent to. The doctors also tend to be slightly more conservative.
  • As soon as we deny a claim, the applicant has the right to self-procure treatment from any and all doctors that will provide services on a lien basis. This is where they rack up tens of thousands of dollars of medical bills. Also, because the carrier is not paying TD, EDD files a lien for up to one year of benefits to be as much as $65,000, which then has to be paid, negotiated or litigated to resolve.
• Medical Legal Reporting: For each medical specialty claim alleged, i.e., orthopedic, neurological, psychological, internal, dental, etc., a medical legal report is generally required before case settlement. This report generally evaluates the disability to determine a settlement. For each medical specialty needed will cost a MINIMUM OF $2,000 each report. However, that is the BARE MINIMUM. For example, if a 20-year-old employee filed a claim for orthopedic and psychological injuries, we would need both an orthopedic and psychological medical legal report to address them. If that 20-year-old has minimal medical history and minimal medical records to be reviewed by the doctor, then the total cost to defendant carrier is about $4,000. However, if the employee were 65 years old and makes the same claims, but because of their age and a more substantial medical record history, the doctor would need to review all the relevant records. Because the doctor gets paid $3.00 per page for reviewing records, if the 65-year-old applicant has a medical history and about 2,500 pages of relevant medical records that need to be reviewed, then EACH SEPARATE MEDICAL LEGAL EXAM WOULD COST ABOUT $9,000.00. For the two exams alone, whether this case is admitted or denied, it would cost the defendant carrier $18,000.00. This does not even count supplemental reports needed from these doctors, if any.
• Liens: As indicated above, liens are required to be paid, adjusted or litigated by the defense. Even if the claim is denied, the carrier must still pay, adjust or litigate the payment of these liens. Many times, on the strength of the denial of the claim, the liens can be resolved for between 10-50% of the original lien claim. Because of the liberality of the workers’ compensation system, it is rarely a good idea to litigate before a liberal Judge any case in chief or lien claim for fear of an adverse decision. Claims should be taken to trial when there is a belief there is a much better than 50/50 chance of prevailing. In the discussion about EDD liens above, even if we settle the lien for $.10 on the dollar, which is $6,500, reducing our exposure by 90%, so it is still pretty significant.
• Post Termination Claims: Post termination claims are claims that are filed by applicants following termination (not resignation). As fully 40% of these claims are filed as CT claims, this is another significant area of cost and needed defense by employers. As discussed above, CT claims are already difficult to defend, but when added to a post termination filing, it becomes even more difficult and litigious to defend. In California, we have the affirmative ‘post termination defense,’ where the employer can legally deny a claim filed after an employee is terminated if the employee had knowledge of the injury while employed, but:
  • The employee never reported the ‘injury;’ AND
  • There was no evidence of relevant medical treatment prior to the termination.
  • As mentioned above, only a doctor can conclude if a continuous trauma ‘injury’ occurred. And in the quirks of the California workers’ compensation system, if the employee did not go see a doctor until AFTER his termination, and the doctor’s conclusion that the employee suffered a CT injury while working for the employer was the employee’s first ‘knowledge’ that a CT injury occurred (as only a doctor can make that conclusion), since the applicant ‘knew’ the CT injury was AFTER he was terminated, then the employer can no longer deny/defend the claim on a post termination defense. These are some of the most difficult claims to defend and they make up an enormous amount of litigation.
• Discovery Costs: In the normal course of investigation of a claim, a deposition is generally a good idea to assess the applicant’s credibility and obtain a history of relevant injuries, accidents and medical records. The average cost for a deposition is at least $2,500. In addition, required by the Labor Code, the defendant employer must pay the applicant’s own attorney for his/her time appearing at the deposition, preparing the applicant for the deposition and for reviewing the transcript with the applicant when concluded.
• In addition, the attorney is entitled to payment for all travel time to/from the deposition, if any. The applicant is also entitled to mileage payment to/from the deposition. All that time is paid at around $400/hour. Moreover, throughout the course of litigation, there are at least two hearings scheduled per claim. These account for disputed issues as well as trials. Trials may not be set unless there is a preliminary hearing set first. So, if we were to take a case to trial, then there would be at least two hearings, with a minimum cost of around $1,700 – $2,500 for that.

What Does This All Mean in Terms of Cost?

The bottom line is that the deck is stacked against the employer when it comes to defending claims. This is why it is vital to ensure all claims are seen through a cost/benefit lens. Taking a denied claim to trial will many times cost two times to three times and more the cost of an early settlement. Plus, there is no guarantee of a defense verdict.

Advantages to Early Settlement

By settling early in the litigation process, an employer avoids exposure for permanent disability, temporary disability, medical costs for treatment and medical legal evaluations, extensive discovery process and cost of subpoenaing records, and attendance at hearings and depositions. If we consider the average claim settlement to be $35,000 with a focus on limiting exposure of these additional litigation costs, there is potential to save the following:

• Treatment Costs
• Medical Legal Costs
• Litigation Costs including attendance at depositions and hearings, record subpoena, etc.
• Future Medical Costs
• Lien Reimbursement Costs

Combined, even if we deny and defend a claim, exposure could be well over $100,000 overall. If a claim is not settled via Compromise and Release the injured worker has up to five years to file for New and Further Disability.

The post Why are California Workers’ Compensation Claims so Costly? appeared first on Albert & Mackenzie.

This decision will undoubtedly be positively received by the entire employer community.

In another part of the decision, however, the Court ruled that the workers’ compensation laws do not prevent a spouses’ negligent claim against the employer directly where her husband brought home COVID-19 from the workplace. This rule does not conflict with the first ruling in that no duty of care is presumed to exist from the employer to the spouse. This second ruling is consistent with the first.

The general rule is that a family member’s claim for an injury derived from an employee’s workplace injury is barred by workers’ compensation exclusivity. However, a family member’s claim for their own independent injury, not legally dependent on the employee’s injury, is not barred, even if both injuries were caused by the same negligent conduct of the employer.

So in the Kuciemba case, if the employee’s spouse can prove she suffered an independent injury of contracting COVID-19, absent or independent from any injury to the employee, she can bring an independent tort (negligence) claim against the employer. Although the employee was considered ‘injured’ by contracting COVID-19, even if he wasn’t ‘injured’ and was simply a carrier of the virus, the spouse could bring a negligence claim because her injury was NOT legally dependent on any actual ‘injury’ by her employee husband. In paraphrasing a multi-part test, the Court concluded that, since the employer was required by governmental health mandates to screen workers, maintain social distancing, provide personal protection equipment, etc., these health mandates put employers on notice of risks of ‘take-home exposures’ and there was a “reasonable foreseeability that COVID-19 could be transmitted both at the workplace and beyond – to those individuals who came into contact with infected employees.” Thus, the employer’s failure to take adequate precautions was, in and of itself, actionable.

If, on the other hand, the spouse’s claim was solely dependent on the husband’s injury itself, then the claim could be barred by the derivative injury rule. To be excluded, there has to be a dependency on the injury itself, not just the exposure, to bar recovery to a spouse.

The distinction seems negligible, but the minor distinction has extraordinary consequences.

In an effort to bring this case result with some insight as quickly as possible, this post is shared, and attached is a copy of the entire decision here. This post is, by no means, comprehensive of all facts, rules, legal issues and conclusions. I am sure that, in the coming weeks and months, there will be an enormous amount of text, articles, blogs, seminars, etc. that will further analyze these cases. As a portion of the ruling is outside of the workers’ compensation arena, I also defer to other experts that can discuss the issue further as well.

The post Bombshell California Supreme Court Decision Re: WCAB Exclusivity Related to Non-Employee COVID-19 Claims of Injury and Tort-Based Liability for Non-Employees appeared first on Albert & Mackenzie.

Are those million-dollar settlements touted at CAAA so easily within reach on a TBI case? If the defense does not know what to look for and rebut before trial is set, the answer is yes.

The single most important thing to know about TBI cases is there is a conclusive presumption of permanent disability that specifically involves brain injury cases. If the applicant proves that they have one of the four conditions outlined in Labor Code section 4662(a), including an injury to the brain resulting in “permanent mental incapacity,” the applicant will be found to have permanent total disability. If the presumption applies, it may not be rebutted by other evidence.

What this means is you have to proceed with discovery, looking for those magic words in medical reporting… permanent mental incapacity. The permanent mental incapacity must be severe, not mild. Once you see those words, expect a Declaration of Readiness to Proceed. Get your rebuttal evidence in order and do it fast.

This finding will typically come from neuropsychologists. What exactly is neuropsychology? Neuropsychology has to do with the brain and behavior. A neuropsychologist conducts testing and attempts to show a link between the traumatic event and the injury. But keep in mind that neuropsychological testing, while often labeled as liberal, can be helpful if the legitimacy of the claim is called into question.

In many mild TBI cases, the applicant’s attorney and the treating doctors will usually rely on subjective evidence offered up by the applicant or their family members. They will try to establish a pre-injury baseline with little to no objective evidence. Obviously, this is problematic from a defense perspective. However, neuropsychological testing from a reputable neuropsychologist can offer a method of rebutting subjective evidence, if done at the correct time in the course of litigation.

Remember that applicants with a mild traumatic brain injury should see their symptoms improve in the first six to 12 months. If the symptoms do not improve in this timeframe, your case is probably not a mild TBI case and you should adjust your discovery plan accordingly.

Will the applicant’s attorney request a compensability panel from the DWC Medical Unit in neuropsychology? No, because the DWC Medical Unit stopped issuing neuropsychology panels.

That being said, a neurology panel of QMEs will do just fine if you are looking to pull a compensability panel. After all, neurologists treat disorders that affect the brain and will request and review objective evidence such as a CT scan or MRI of the brain. If the neurologist cannot address cognitive impairment because their focus is on the physical effects of neurological disorders, they will say so and make a referral to a neuropsychologist and you can agree to a consult in your MPN.

While there is a lot more that can be said about TBI claims, keeping the above information in mind will set you up for a successful start, as you navigate this new territory.

The post Traumatic Brain Injuries in Workers’ Compensation: Where to Start appeared first on Albert & Mackenzie.

As of September 6, 2022, all Division of Workers’ Compensation (DWC) offices except Eureka not only accept in-person walk-through documents, they require it. As of that date, the DWC no longer accepts virtual walk-throughs in the Lifesize platform.

A Brief History of Walk-Throughs

CCR 10789 governs the procedures for walk-throughs. A “walk-through document,” according to CCR 10305(y), is one presented to a Workers’ Compensation Judge (WCJ) for immediate action when no notice of hearing has issued. Parties must follow all provisions of CCR 10789 when presenting at a District Office with a walk-through request.

In March of 2020, the DWC stopped accepting walk-through documents due to the COVID-19 pandemic, only accepting documents via e-filing, JET filing, or by mail. Virtual walk-throughs were introduced in 2021 as part of an expansion of services at district offices. They were conducted via the Lifesize video conferencing platform and limited to settlement documents only.

With pandemic-era restrictions being lifted, the DWC has ended remote walk-throughs, although other conferences appear to be remaining telephonic for now.

Life After Lifesize

Here’s what you need to know about the current incarnation of in-person walk-throughs:

A. Where Can I Do a Walk-Through?
A walk-through can only be acted on by a WCJ in the District Office that has venue. If two or more boards have venue, the walk-through may take place at any board that has venue over an existing case (i.e., one that has been filed and assigned a case number before the walk-through document is filed).

B. When Are Walk-Throughs Allowed?
Since September 6, 2022, walk-throughs are available at each District Office, Monday through Friday, except on holidays when the Division’s offices are closed. The current rule appears to have reverted to the pre-pandemic time windows, but it’s best to check with the individual board for specific limitations on availability. For example, some Boards do not take walk-throughs on Mondays.

Pre-pandemic, CCR 10789(c) required each district office to have a designee of the presiding WCJ available to assign walk-through cases from 8:00-11:00 a.m. and 1:00-4:00 p.m. on court days (CCR 10789(c)).
During COVID-19, that rule was suspended, with each board scheduling time frames as appropriate for their capacity. Judges would prioritize documents assigned on a walk-through basis to account for limited capacity in the offices. Virtual walk-throughs narrowed the window to Monday through Friday, from 2:00 to 4:00 p.m.

C. Do I Need to File My Documents In Advance?
It’s not completely the same as it was. You can no longer just bring in your documents and expect to be assigned to a judge. The requirement of e-filing your documents through EAMS prior to the appearance is sticking around, in most cases.
Judges have advised that filing walk-through documents in EAMS minimizes their staff’s workflow, and even if a particular judge doesn’t have that requirement, there’s no harm in e-filing in advance.

For settlements without an assigned ADJ number, all documents must be submitted no later than noon of the court day before any action on the walk-through, and must be designated as a walk-through document.

Don’t forget to file any supporting documents that were not previously filed, including Maximum Medical Improvement or medical-legal reports. A proof of service on all other parties listed in EAMS, including co-defendants not participating in the settlement and lien claimants, is also required.

D. If I E-file, Do I Need to Bring a Hard Copy With Me?
It depends. Some judges will still require a paper copy, so it’s advisable to err on the side of caution and be prepared for anything. In addition, you may be asked to fill out a walk-through minutes of hearing form or appearance sheet and/or an EAMS cover sheet and separator. Not every board has these available, so it doesn’t hurt to bring your own.

E. Who Can Act on My Walk-Through?
Any judge, unless a WCJ has already taken testimony in the case or previously reviewed the document and declined to approve it. In either of those events, the same WCJ must act on the walk-through if located at the district office to which the case is assigned, unless the presiding WCJ allows another judge to act on it.
Some boards have processes for assigning the WCJ for your walk-through at random, and some boards only have certain judges available on certain days of the week.

F. Walk-Throughs Aren’t Just for Settlements
While virtual walk-throughs were only for settlement documents, with the return to in-person walk-throughs, don’t forget that other documents can be walked through under CCR 10789. These include Petitions for Labor Code § 5710 attorney’s fees, Petitions to compel attendance at a medical examination or deposition, and Petitions for Costs under rule 10545.

Alternatives to In-Person Walk-Throughs

To avoid the travel time and cost of in-person walk-throughs, remote filing is always available and is often the more cost-beneficial alternative. Parties may still e-file and submit settlement documents to be reviewed and approved by a WCJ without the need for in-person appearances.

When accompanied by a persuasive letter arguing adequacy, e-filing can be just as, or more, effective than an in-person appearance. Depending on the venue, the turnaround time for an e-filed submission can be even faster than an in-person walk-through.

Whichever route you choose, the submission should be specifically tailored to your claim to maximize the chances of success. Albert & Mackenzie regularly helps clients seamlessly navigate the settlement process and has a 93% first-time success rate of approval with e-filed settlements. Our dedicated Walk Through department ensures a thorough and expedited review process before submitting to the Workers’ Compensation Judge for approval. To learn more about how we can help, contact us online or refer a case.

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Despite all the precautions, trainings, instructions, and safety measures that you take, employees get hurt. Many times, the employee is able to return to work without restrictions. However, there are times when an employee will have some restrictions upon returning. In order to be compliant with the California Labor Code, Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) there are several things that employers should do when the employee is cleared to return to work.

Step 1: Review

Review the restrictions. Do they make sense? Are they clear? If the answer is no, then seek clarification from the doctor that is providing the restrictions. Do not guess at the restrictions. You will also need to know if the restrictions are permanent or temporary.

Step 2: Evaluate

Once you have a clear understanding of the restrictions, evaluate them with the management team, including HR and risk management. Can they be accommodated? Are they reasonable? There is no objective test for reasonableness of an accommodation. Generally, if you have to buy a $10 tool to allow the applicant to perform 100% of their essential duties it is probably reasonable, however, if the cost is $10,000, it probably is no longer reasonable. Keep in mind that the accommodation is only effective if the employee is able to perform 100% of the essential job duties.

Step 3: Analyze

Discuss with the employee. Sit down with the employee and the employee’s manager to analyze the restrictions and proposed accommodations, get the employee’s input, and make sure that the employee understands the restrictions and how you are going to assist the employee in returning to work. Does everyone agree to the accommodations? If there is no agreement to the accommodations that are to be implemented, then do not implement those in dispute. The interactive process is not a “one shot” discussion, rather it is a constant interaction to determine if the agreed accommodations are effective. (See Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128.)

Step 4: Document

Put it in writing. Once there is an agreement, put it in writing so that you and the employee can refer back to it if necessary. Make sure that it is signed by the employee and management.

Step 5: Yes or No

Are the accommodations working? If not, go back to step 3. If they are, then continue the accommodations. Remember that once an accommodation is given, the employee should continue to receive that accommodation as long as it is effective and necessary. (See A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455.)

What about having a blanket policy that an employee has to be 100% healed before returning? Such a broad, blanket policy is generally unlawful. (See Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34.) The reason that these types of policies are disallowed is that doing so would severely undercut the purpose of the ADA and FEHA.

Remember that each situation is unique. Sometimes a restriction cannot be accommodated, however, you are always required to engage in a good faith interactive process with the employee. When you have to do so, follow these steps and you should be READY.

The post What to Do When an Injured Employee Returns to Work appeared first on Albert & Mackenzie.

A Board Panel decision from 2019 that should be considered is Jessica Dutcher v. California Psychcare, Inc. is still being relied upon by Judges to order penalties under Labor Code Section 5814, when the defendant fails to take affirmative steps in procuring tests needed by the PQME.

In that particular case, the PQME requested a complete psychiatric evaluation and diagnostic tests, including blood tests, polysomnogram, EEG, and MRI of the applicant’s brain. However, more than 70 days passed since the PQMEs report and still, no authorization had been provided by the defendant, and more than 90 days had elapsed by the time they were performed. The applicant filed for penalties under Labor Code Section 5814 under the argument that there was an unreasonable delay, and the WCJ allowed a penalty to issue.

“But our PQME Letter Told the PQME He Could Order it Himself!”

In hopes of avoiding a penalty, the defendant argued that their PQME advocacy letter had provided authorization to complete any testing in advance that the PQME needs.

Too bad, defendant. The WCAB ruled that the defendant did not take any affirmative steps in procuring the testing needed and allowing it to languish over 70 days without action being taken. By the time the testing was performed, it was more than 90 days from the report. Simply put, too much time had elapsed, thereby making the delay unreasonable.

What Does This Mean for You?

Obviously, we are all busy, and every day we are getting busier and busier with claims, discovery issues, claims to handle, etc. However, make sure you do not let diagnostic testing slip through the cracks. Even if the case is denied, and/or you believe the testing is unwarranted, that does not absolve the defendant from moving forward affirmatively and proactively to get these done in a timely manner. Otherwise, you could be looking at Labor Code Section 5814 penalties for reasonable delay, and even potentially attorney’s fees. The penalty can be up to 25% of the delayed compensation, up to $10,000.00.

In closing, be proactive when you see testing is requested by a PQME. It can save you much grief in the long run.

What About Utilization Review and Independent Medical Review Instead?!

PQMEs are medical-legal examinations, and these diagnostic requests are for the PQME to be able to complete their evaluation. This is not a request for treatment that goes through the UR/IMR process.

The WCAB ruled that defendants must investigate and develop definitive medical evidence to evaluate the applicant’s claim of injury as part of Administrative Director Rule 10109. It was the delay and failure to take affirmative steps in procuring the tests that unreasonably delayed the investigation of injury claim and whether benefits were due to the applicant pursuant to 8 Cal. Code Reg. Section 10109.

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We all may have shared the same thoughts: Are we going to be penniless paying $10,000.00 to $15,000.00 in review fees? Will these review fees be higher than what the Case-in-Chief will settle by way of Compromise and Release?

Generally speaking, we have not seen a tremendous impact as much as we thought! We also do not see a significant impact in the way of the applicant’s attorneys working to leverage the cost of a PQME report by requesting for additional money to settle the claim.

So, What Has Been The Result Of The New Med-Legal Fee Schedule?

Firstly, many clients have expressed their willingness to have us review and whittle down records over 200 pages. Usually, it is when the records reach a significant number, such as over 800 pages, clients request for us to go through and remove any unnecessary medical records. Certainly, we do not need the applicant’s treatment records regarding miniscule incidents like a hangnail from 2007 or a cut pinky toe from 2013.

As a result, the cost savings for clients have been quite positive. For data reference, on about 800 file reviews, the total cost savings was about $1,800.00 on average and a reduction of 600 pages. Comparing it to an average of approximately a cost of $300.00 for the defense attorney to having to review the same files, the net savings was $1,500.00!

What else can be done? Avoid duplications!

Sometimes, our files will have the same records albeit from different subpoena companies, different dates (we will have subpoenaed records up to 2019, for example, and then we have a new set going all the way up to 2021). However, once we get rid of those duplicate copies, the pages will be reduced and, in turn, the costs are lowered as well.

What Can We Expect In The Future?

Defense attorneys are working diligently to remove any unnecessary medical records. So far, the applicant’s attorneys seem to be cognizant of the fact that the $3.00 per page review is not something the carriers want to pay and have not been giving us much pushback when we want to eliminate records. Of course, if there is a real debate about what should be sent to the AME or PQME, a Declaration of Readiness (DOR) to Proceed in order to place this matter on calendar and discuss the matter with a Judge can always be done.

However, based on our “off the record” conversations with a few Judges, if in doubt, they will send it to the doctor for a review. Judges want to reiterate they are not doctors and will not make medical decisions or issue medical opinions – as that is the realm of the physician. In order to make a true and accurate record that will reflect substantial medical evidence, a Judge will defer to the doctor to review.

Therefore, before filing a DOR and spending litigation costs fighting what should or should not be a part of the medical record, you may want to reconsider and have a doctor review the records if there is a debate as to their importance.

Eliminate Additional PQMEs!

Eliminating the need for multiple PQMEs and multiple review of records is of the utmost importance. Make sure your defense attorney is working diligently in fighting any unnecessary PQMEs or simply settling the matter without the need for a PQME in additional specialties. If the carriers are willing to provide additional settlement authority rather than working with a doctor for medical reports, in the long run, we have seen many more settlements for a reasonable amount of money – which would have cost more had the applicant gone to additional PQMEs.

In closing, we are happy to report that the med-legal charges so far have not had as much of a negative impact as many may have thought when the law was passed.

However, as mentioned above, due diligence is required to make sure there are no unnecessary pages given to doctors. Carriers should also set a mark as to how much they are willing to pay or send to a doctor before deciding to move forward with having their attorney review and extract any unnecessary documentation and records. Likewise, the net savings by having your attorney do a good job in extracting these unnecessary pages have resulted in savings for carriers across the Board.

To keep up to date on the new regulations, visit California’s Division of Workers’ Compensation website.

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Do We Really Have To Go Back?

On September 1, 2021, the DWC announced that as of October 1, 2021, in-person hearings will resume at all DWC District Offices except Eureka, which is now a completely virtual office, as well as the satellite locations of Bishop, Marysville, Chico, and Ukiah, which will also remain virtual.

However, it would solely be hearings that would be in person consisting of Trials, Lien Trials, Expedited Hearings, and Special Adjudication Unit (SAU) Trials only.

Is It Safe?

The DWC stated that all offices will require face coverings regardless of vaccination status or county mandates. Nevertheless, there were well-founded fears from the community about having to be in close proximity with one another, especially at Trials where we have witnesses required to appear. You may have applicants as well as employer witnesses that do not want to be there in person, co-morbidities, or other health issues, yet they would be forced to appear in person. What if the employer witness contracts COVID-19 from these proceedings? Are you then opening yourself up for workers’ compensation claims? Will there be a need for quarantining after any type of exposure at the WCAB? There seems to be more questions than answers at this point.

Real Examples Of Attempts To Go Virtual At Various WCABs

It appears that the WCAB and WCJs may be amenable to still allowing virtual Trials and hearings to move forward, if all parties agree! A public hearing occurred on September 24, 2021, to address the proposed regulations. Essentially, the plan was for the WCABs to still move forward with in-person Trials and hearings, but remote hearings may be requested by filing a Petition showing good reason for a remote hearing to be warranted. It appears that so far, the fact that we are still in the pandemic, variants of the virus continue to threaten the public. As we can see since that public hearing Judges seem to be more amenable to allowing virtual Trials and hearings to move forward.

So far, it seems to come down on a WCAB by WCAB basis, but for example, this is what we have seen so far in our experience.

Update On WCAB

Since our initial news article, the updated information on virtual hearings are highlighted below in blue.

Fresno WCAB

At this time, the Fresno WCAB in regard to Trials, Lien Trials, and Expedited Hearings, is asking the parties to simply call into the assigned Judge’s telephone conference line at the designated time. During this initial phase of the Trial or Expedited Hearing process, the assigned Judge will discuss the aspects of the case with the parties and who will be expected to discuss whether the case should proceed “in person” or if it may go forward as a tele-hearing. While the parties may advise how the matter should go forward (by tele-appearance or the Court’s Live Scan platform), the assigned Judge has the discretion to make that final determination.

If the Judge determines that the matter should proceed “live” and “in person”, the Judge will set the appearance time, and the Courtroom will be open for the parties.

Because the Judge may order the parties to immediately move into the Courtroom, it is important that the parties remain in the vicinity of the Fresno WCAB (however, this begs the question of whether employer witnesses still must appear). There have been WCJs in the past to simply state that employer witnesses should always remain on call, because it is unknown if cases will actually be able to move forward on the record based on the calendar, continuing testimony, out-of-state witnesses, etc., that have preference. However, at the very least, the attorneys, along with the applicant, should be present.

Van Nuys WCAB

We have objected to an in-person proceeding and request a virtual proceeding. The trial judge’s secretaries called our office and wanted to see if all parties agreed. We notified them that they did, and we have received approval for our request for a virtual hearing.

File a Petition to do a virtual hearing. Include the e-mail addresses in the correspondence, so the Judge can e-mail you approval for the virtual hearing.

Judge Feddersen continues to check his conference lines on his Trial and Expedited Hearing days, and he is not penalizing anyone for appearing virtually. Judge Sommers is allowing virtual hearings if there is a Stipulation of the MSC. The Santa Ana WCAB Judges have simply been deferring virtual hearings and Trials to the Presiding Judge.

Santa Ana WCAB

When the defense of the applicant’s attorney both requested that the Trial that was continued prior to October 1, 2021 (but the new trial date would be after October 1, 2021), be virtual, the WCJ stated that they would have to check with the Presiding Judge (PJ) to see if this was allowed.

Oakland WCAB

One of our attorneys was told to send a Stipulation indicating agreement and reason, and it will go on a case-by-case basis. However, the WCJ seemed to be agreeable to it at the present time.

Judge Howell granted the virtual hearing based on the fact that one or more of the parties have an at-risk family member that could be adversely impacted by COVID-19.

Los Angeles WCAB

Presiding Judge Rassp said if both parties agree, they can have a virtual Trial or hearing. The agreement should occur at the MSC noted on the Minutes of Hearing or by filing a joint Stipulation and Petition to appear virtually or by telephone.

If the parties agree at the MSC to do it virtually, please advise the Trial Judge after the MSC, so the Trial Judge is made aware. If Judge Aslanian is your Trial Judge, she has specific rules of which to follow.

Riverside WCAB

You are asked off the record if you want your Trial in person or virtual. If the parties agree to virtual, they are supposed to allow it, but apparently, it is still up to the Presiding Judge to decide if it will be granted.

San Bernardino WCAB

There has been clarification now that you may not stipulate to a virtual hearing at the MSC or on the
Pre-Trial Conference Statement. You must file a joint Stipulation and then wait for approval.

Anaheim WCAB

When setting the trials from an MSC, the MSC judge is reminding people to appear in person at the trial (and they are not commenting on whether you can change it to virtual once you know the trial judge).

Judge Schultz informed attorneys to ask the Judge at the MSC if a virtual Trial will be allowed. She will note that on the Minutes of Hearing, but it appears it is still up to the Judge to make the final decision.

Judge Cyprien is denying requests for virtual hearings as they do not show good cause. What is good cause? See below.

Pomona WCAB

Judge Coutts is sending reminders via general purpose Orders that the trial or hearing will be in-person. It remains to be seen if she will allow joint requests for virtual trials/hearings.

As for the other Judges, it appears that they are still inspecting people to appear in-person for a Trial or hearing.

San Diego WCAB

Judge Utter is requiring in-person Trials, but we do not know if she is willing to allow if virtual Trials and hearings, if agreed to beforehand by the parties.

Judge Atcherley requires you to appear telephonically for the Trial, and then she will provide instructions from that point. Even a Petition wanting to have an in-person Trial will be rejected by Judge Atcherley and you must telephone the day of the Trial or hearing.

Oxnard WCAB

It appears they are defaulting to virtual hearings and Trials but we have heard from the applicant’s attorneys that if you want an in-person Trial, you need a joint request for it to be approved.

San Jose WCAB

Per Judge Suh, a Petition is required for a virtual hearing request even if the parties stipulated at the MSC to do it virtually. You must file a Petition after the Notice of Trial, so the Trial Judge can act on it before the Trial date.

Marina Del Rey WCAB

Judge Ter Veer prefers to do virtual hearings. You are to file a Petition, but absent that, you must still appear in person. You are then told to wait outside of the Board until called. Essentially, they want you to wait outside of their Board in your car or at the coffee shop next door until your case is called.

Good Cause In Order To Allow A Virtual Trial Or Hearing

Any joint stipulations and request should also include good cause as to why the trial or hearing must be done virtually. Good cause includes, but is not limited to the following:

1. One or more parties have an ongoing underlying health issue that makes them more vulnerable to complications should they come into contact with or contract COVID-19.
2. One or more parties are the care takers of minors/elderly that are unable to be vaccinated and/or have ongoing underlying health issue that makes them more vulnerable to complications should they come into contact with or contract COVID-19 and present a greater risk of spreading the virus due to their inability to be vaccinated.
3. One or more parties have an unvaccinated child who is not eligible for a vaccination in the home.
4. One or more parties have at risk family members in our home who have health issues (HIPAA, details remain private) that could be negatively impacted by COVID-19.
5. Due to COVID-19 restrictions, one or more parties have child(ren) at home that require at home supervision.
6. One or more parties have a diagnosed health condition (HIPAA, details remain private) that puts them at high risk if they contract COVID-19.

So Will My Trial Or Hearing Be In Person Or Virtual?!

At this time, we are following the DWC directive, but it appears that if all parties agree, we may have our Trials become virtual. If in doubt by the actual Trial date, we will still appear in person as your attorney, but we would still recommend that employer witnesses remain on call, as they normally would, even when we had in-person Trials and hearings pre-COVID.

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