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WCAB Clarifies Roles of Physicians and Vocational Experts Under Ogilvie

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration LC 5909 petition for removal threshold issue sanctions interlocutory order final order nonfinal order 60 days removal

It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.

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SPECIAL REPORT: WCAB Issues Significant Panel Decision on New Time Limits for Reconsideration and Orders Subject to Reconsideration

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration LC 5909 petition for removal threshold issue sanctions interlocutory order final order nonfinal order 60 days

Under former Labor Code § 5909, a petition for reconsideration was deemed denied by operation of law unless the Workers' Compensation Appeals Board (WCAB) acted on it within 60 days from the date of filing. Effective July 2, 2024, LC 5909 states:

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Liability for Medicare Conditional Payments

Posted by:  Sure S. Log
Topics: C&R medicare medicare-set aside settlement conditional payment compromise and release

Medicare is a secondary payor. That is, it does not have primary payment responsibility for its beneficiaries when another entity is responsible for paying for medical care before Medicare. Workers' compensation is a primary payor for work-related illnesses or injuries. Medicare will not pay for a beneficiary's medical expenses when payment has been made or can reasonably be expected to be made by a workers' compensation insurer. Medicare, however, may pay for medical services when the primary payor has not made or cannot reasonably be expected to make payment for them promptly. Those Medicare payments are referred to as “conditional payments,” because Medicare pays under the condition that it is reimbursed when the beneficiary gets a workers' compensation settlement, judgment, award or other payment. Medicare is required by statute to seek reimbursement for conditional payments related to the settlement. The Centers for Medicare & Medicaid Services (CMS) has authority to look after...

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Expedited Review of Requests for Treatment Revisited

Posted by:  Sure S. Log
Topics: Utilization Review Medical Treatment expedited review LC 4610 UR CCR 9792.9.1 UR determination UR decision imminent and serious threat medical necessity

Labor Code 4610(i)(1) normally requires a utilization review (UR) determination to be made within "five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician." But LC 4610(i)(3) requires an expedited review when the employee faces an "imminent and serious threat to his or her health, ... or the normal timeframe for the decision-making process ... would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function." In those situations, the UR decision must be made in a timely fashion "not to exceed 72 hours after receipt of the information reasonably necessary to make the determination."

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Special Report: 1st District Court of Appeal Holds That WCAB Must Act on Petition for Reconsideration Within 60 Days

Posted by:  Sure S. Log
Topics: Reconsideration Petition for Reconsideration LC 5909 operation of law Shipley Zurich due process filing jurisdiction AB 171 Assembly Bill 171

For more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to former Labor Code § 5909. That statute stated, "A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed.

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Understanding Accumulation of Permanent Disability Under LC 4664(c)(1)

Posted by:  Sure S. Log
Topics: Apportionment Permanent Disability PD accumulation LC 4664(c)(1) prior award regions of the body LC 4664

Labor Code § 4664(c)(1) states, "The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662." The regions of the body for the purposes of the statute are:

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Injuries Barred by Criminal Convictions Under LC 3600(a)(8)

Posted by:  Sure S. Log
Topics: LC 3600(a)(8) criminal conviction criminal conduct felony felonious act wobbler Penal Code 17(b) AOE/COE deviation misdemeanor

Labor Code § 3600(a)(8) is an affirmative defense that bars a claim for compensation when the injury is "caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted." That defense was enacted in 1986 and originally barred an employee's injury "caused by the commission of a felonious act by the injured employee, for which he or she has been convicted." The statute was amended to its current form in 1993.

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Understanding the Commercial Traveler Rule

Posted by:  Sure S. Log
Topics: Exclusive Remedy Going and Coming Rule commercial traveler rule personal errand personal activity material departure reasonably contemplated

Under the commercial traveler rule, an employee traveling on the employer's business is regarded as acting within the course of employment during the entire period of his or her travel. Workers' compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort and safety of the employee. But the commercial traveler rule does not cover all of an employee's activities. Personal activity not contemplated by the employer might constitute a material departure from the course of employment. (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 652.)

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Special Report: WCAB Issues En Banc Decision Regarding Application of Kite

Posted by:  Sure S. Log
Topics: Permanent Disability combining disabilities synergistic effect combining impairments PD Combined Values Chart reduction formula Kite

In 2013, the WCAB held in Athens Administrators v. WCAB (Kite) that an injured worker's disabilities are not required to be combined using the Combined Values Chart (CVC). The WCAB explained that although the AMA guides favor the combined values method, "physicians may, under certain circumstances, employ a different method of determining impairment if they remain within the four corners of the AMA Guides."

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