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Significant Panel Decision Clarifies Commutation of Attorney Fees from Lifetime Awards

Posted by:  Sure S. Log
Topics: Permanent Disability permanent total disability jurisdiction to enforce side of the award horizontal commutation LC 5803 LC 5804 continuing jurisdiction life pension commutation lateral commutation

Permanent disability benefits often are commuted to pay the fees of an applicant's attorney. Usually, the Workers' Compensation Appeals Board (WCAB) will order attorney fees to be commuted from the "far end" of the permanent disability award. That means the WCAB will commute a sufficient number of payments at the end of the award so that a lump sum can be issued to the attorney immediately without disrupting the flow of benefits to the injured worker. That reduces the number of weekly permanent disability payments made to an injured worker, and allows the attorney to receive the entire fee up front.

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WCAB Panel Holds That Email Notification Is Sufficient for QME Strike

Posted by:  Sure S. Log
Topics: LC 4062.2 striking process striking a QME QME selection process electronic strike email strike first-class mail

Labor Code § 4062.2 establishes the rules for requesting a panel of qualified medical evaluators (QMEs) when an employee is represented by an attorney. After a panel is obtained, LC 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." The statute does not describe the appropriate method for exercising a strike, but it adds, "The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process." Although the administrative director has adopted regulations related to the QME selection process in the California Code of Regulations (CCR) 29 et seq, none of the regulations discusses the striking process.

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WCAB Panels Clarify Scope of Physician-Patient Privilege

Posted by:  Sure S. Log
Topics: discovery physician-patient privilege protective order Allison medical records privacy waiver overbroad subpoena

The physician-patient privilege is not absolute in workers' compensation, but neither is a defendant's right to discovery. Although filing a claim waives the privilege for conditions placed at issue, foundational cases, such as Allison v. WCAB, 72 Cal. App. 4th 654, established that this waiver does not grant defendants unfettered access to an applicant's entire medical history. That creates a constant tension between an applicant's constitutional right to privacy and a defendant's right to relevant information.

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4th District Court of Appeal Clarifies Jurisdiction over Professional Athlete Claims

Posted by:  Sure S. Log
Topics: cumulative trauma CT jurisdiction professional athlete football exception LC 3600.5 Atlanta Falcons Gandy statutory interpretation exemption

The scope of California's jurisdiction over cumulative trauma claims filed by professional athletes has long been a contentious issue. California workers' compensation laws are generally more liberal than laws in other states. So professional athletes commonly file workers' compensation claims in California, even when they have a limited connection to the state and have long histories of playing for out-of-state teams.

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Special Report: 2nd District Court of Appeal Rejects Patterson Exception to UR/IMR

Posted by:  Sure S. Log
Topics: Utilization Review LC 4610 jurisdiction UR medical necessity Rodriguez ongoing treatment ongoing care independent medical review Patterson LC 4610.5

In an important development, the well-known Patterson case has been reversed by a Court of Appeal. Patterson is the significant panel decision that held that certain types of continuing care were not subject to utilization review (UR) and independent medical review (IMR). This decision, Illinois Midwest Insurance Agency LLC v. WCAB (Rodriguez) has held that the Patterson reasoning was inapposite of the statutory language, and has subjected continuing care to UR/IMR. BACKGROUND With the enactment of Senate Bill 863 in 2012, the California Legislature established the independent medical review (IMR) process. It became effective for all treatment requests Jan. 1, 2013. The IMR process replaced judicial review as the method to appeal UR decisions regarding all proposed medical care. Under the statutory scheme, all proposed medical care is to be requested by a physician submitting a request for authorization (RFA). That request is reviewed by UR, and may be appealed only to IMR. Judicial...

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Strict Compliance Required for Claim Numbers on QME Panel Requests

Posted by:  Sure S. Log
Topics: QME LC 4062.2 CCR 30 QME panel panel request claim number bright-line rule invalid panel

California Code of Regulations, Title 8, § 30 establishes the process by which a party may request a panel of qualified medical evaluators (QMEs) from the DWC Medical Unit. CCR 30(b) applies when an employee is represented by an attorney. It requires a party requesting a panel to provide specified information, including the claim number.

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Special Report: WCAB En Banc Affirms and Expands Coldiron Disclosure Duties

Posted by:  Sure S. Log
Topics: discovery party disclosure Coldiron Difusco CCR 10390 TPA insurance self-insured retention deductible liable party

For more than two decades, the law governing the identification of liable parties has been shaped by the Workers' Compensation Appeals Board’s en banc decisions in Coldiron v. Compuware Corp. In Coldiron I, [1] the WCAB held that a third-party administrator (TPA) has a duty to disclose the identity of its client — whether a self-insured employer or an insurance carrier. Crucially, if the client is an insurance carrier, the TPA also must disclose whether the policy includes a "high self-insured retention," a large deductible or any other provision that affects the identity of the entity ultimately liable for payment. The WCAB warned that failure to do so could result in sanctions.

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WCAB Clarifies Procedure for Submitting Sub Rosa Video to QMEs

Posted by:  Sure S. Log
Topics: QME qualified medical evaluator credibility video sub rosa deposition disclosure surveillance production LC 4062.3

The use of sub rosa surveillance video is a powerful tool in workers' compensation, often used to challenge an applicant’s credibility regarding the claimed level of disability. The timing and procedure for providing such evidence can be a point of significant dispute.

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WCAB Warns Against Unchecked Use of Artificial Intelligence in Legal Pleadings

Posted by:  Sure S. Log
Topics: Petition Petition for Reconsideration sanctions legal pleadings AI LC 5813 discipline

The use of artificial intelligence (AI) is increasing throughout society, and its use in law is no exception. AI provides tools for lawyers to quickly and effectively deliver legal services. Many lawyers use AI for both routine and complicated legal tasks, and those who do not risk falling behind.

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SPECIAL REPORT: WCAB En Banc Holds Oral Request at Trial Sufficient for Electronic Witness Testimony

Posted by:  Sure S. Log
Topics: Trials good cause trial remote electronic testimony CCR 10817 witness remote witness

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) adopted regulations regarding electronic hearings. Remote hearings initially were used during the COVID-19 pandemic, but because such proceedings increased access to the workers' compensation system for parties, their representatives and the public, the WCAB believed that making the changes permanent would benefit the public and the administration of the workers' compensation adjudicatory system.

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