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SPECIAL REPORT: WCAB En Banc Holds Replacement Panel Not Automatic for Failure to Timely Schedule an Evaluation

California Code of Regulations 31.3 establishes the rules for scheduling appointments with a qualified medical evaluator (QME) selected from a panel. CCR 31.3(e) establishes when a QME must be available for an appointment and states, "If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than one-hundred-twenty (120) days after the date of the party's initial request for an appointment." CCR 31.3(e) also allows either party to report the QME's unavailability and requires a replacement panel to issue "when the selected QME is unable to schedule the evaluation within one-hundred-twenty (120) days of the date of that party's initial request for an appointment" unless the parties waive the time limit for scheduling an initial or subsequent evaluation. CCR 31.3(f)...

QME Selection If a Party Fails to Timely Strike

Labor Code § 4062.2 establishes the procedure for selecting a qualified medical evaluator (QME) when an employee is represented by an attorney. Pursuant to LC 4062.2(c), each party has 10 days from assignment to strike a doctor from a panel, a period extended by the mailbox rule. (Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc).) It adds that if a party fails to timely exercise a strike, "[T]he other party may select any physician who remains on the panel to serve as the medical evaluator."

Credit for Third-Party Recovery

When an employee is injured during the course of employment due to the negligence of a third party, the worker may file a workers' compensation claim against the employer and a civil claim for damages against the responsible third party. An employee is entitled to workers' compensation benefits regardless of whether he or she or the employer was negligent in causing the injury. In the civil courts, however, comparative negligence applies, "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Li v. Yellow Cab Co. of California (1975) 13 Cal. 3d 804, 829.)

Producing Video Evidence Prior to Applicant's Deposition

Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.

Multiple QME Panels in Cumulative Trauma Claims Involving Multiple Defendants

Pursuant to Labor Code § 5500.5(a), liability for a cumulative trauma (CT) injury is limited to the employer(s) that employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first. That means multiple employers or insurers can be liable for a CT injury.

Deferring Utilization Review

As stated in Labor Code § 4610(a), utilization review is the process a defendant uses to "prospectively, retrospectively, or concurrently review and approve, modify, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, ..." (emphasis added). UR is the process to determine only whether a request for treatment is medically necessary. It does not determine other issues.

WCAB Clarifies Roles of Physicians and Vocational Experts Under Ogilvie

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.

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

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:

Liability for Medicare Conditional Payments

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...

2024 California Workers' Compensation Bills

The 2024 California legislative season is over. The Legislature had until Aug. 31, 2024, to pass bills, and Gov. Gavin Newsom had until Sept. 30, 2024, to sign or veto them. The bills signed by the governor take effect Jan. 1, 2025.

Expedited Review of Requests for Treatment Revisited

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."

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

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.

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

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:

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

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.

Understanding the Commercial Traveler Rule

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.)

Special Report: WCAB Issues En Banc Decision Regarding Application of 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."

The Initial Physical Aggressor Defense Under LC 3600(a)(7)

Labor Code § 3600(a)(7) establishes the initial physical aggressor defense. It explains that a claim is not compensable when the injury arises "out of an altercation in which the injured employee is the initial physical aggressor." That defense embodies the legislative intent to exclude from compensation those who introduce violence into the workplace.

Special Report: Understanding the Impact of California Minimum Wage Changes on Temporary Disability Rates

Effective April 1, 2024, the minimum wage for many California fast-food workers increased from $16 to $20 an hour. The changes were brought by Assembly Bill (AB) 1228, which was signed by Gov. Gavin Newsom on Sept. 28, 2023. AB 1228 added Labor Code § 1474, § 1475 and § 1476.[1]

Change of Treating Physician After Discharge from Care

Nearly one-quarter century ago, in Tenet/Centinela Hospital Medical Center v. WCAB (Rushing) (2000) 80 Cal. App. 4th 1041, the Court of Appeal held that when a treating physician has declared the employee's injury to be permanent and stationary, has released the employee to return to work and has prescribed no further doctor-involved treatment or visits, the employee did not have a right to change treating doctors just because future medical care was warranted. Instead, the court explained that the employee was required to comply with the provisions of California Code of Regulations, Title 8, § 9785(b), and Labor Code § 4061 and § 4062, to change primary treating doctors (PTPs).

WCAB Issues En Banc Order and Notice of Intent to Impose Sanctions for Filing Frivolous Petitions for Reconsideration

When a party disputes an order, decision, or award issued by a workers' compensation judge (WCJ), there are two options for appeal. Pursuant to Labor Code § 5900, a party may file a petition for reconsideration of a "final order, decision, or award made and filed by the appeals board or a workers' compensation judge." On the other hand, LC 5310 states, "The appeals board may ... remove to itself, or transfer to a workers' compensation administrative law judge the proceedings on any claim." A petition for removal is the appropriate remedy for interim, nonfinal orders.

SPECIAL REPORT: WCAB Issues Significant Panel Decision That It Will Continue to Follow Shipley

As discussed in an earlier Special Report, 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 Labor Code § 5909. That statute states, "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. On Dec. 18, 2023, the 2nd District Court of Appeal issued its decision in Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213, holding that this practice was improper. Zurich stated that "the language and purpose of section 5909 show a clear legislative intent to terminate the Board's...

Liability for Temporary Disability When Employee Refuses Work

Temporary disability (TD) benefits serve as wage replacement during the period an injured worker is healing from an industrial injury. An employer's obligation to pay TD benefits ceases when such replacement income is no longer needed. The obligation to pay TD benefits ends when the worker returns to work, is deemed able to return to work or when the worker's condition achieves permanent and stationary status.

Understanding the Premises Line Rule

Under the judicially created going and coming rule, an employee's injury while commuting to and from work is not compensable under the workers' compensation system, absent special or extraordinary circumstances. That's because long ago, the California Supreme Court believed that an employee going to and from the place of employment did not render any service for the employer. (Ocean Accident and Guarantee Co. v. IAC (1916) 173 Cal. 313, 322.) But, "In an effort to create a sharp line of demarcation as to when the employee's commute terminates and the course of employment commences, courts adopted the premises line rule, which provides that the employment relationship generally commences once the employee enters the employer's premises." (Wright v. State of California (2015) 233 Cal. App. 4th 1218, 1231.) Injuries occurring after an employee has arrived on the employer's premises generally are presumed compensable as arising in the course of employment. Moreover, what constitutes the...

Special Report: What Happens After the COVID-19 Presumptions Are Repealed?

In 2020, the California Legislature passed Senate Bill 1159 (SB 1159), which established a rebuttable presumption for specified employees that illness or death resulting from COVID-19 arose out of and in the course of employment. The presumptions were established in Labor Code § 3212.86, LC 3212.87 and LC 3212.88. In the Senate Floor Analysis for SB 1159, the Legislature believed that the burden of fighting COVID-19 had fallen disproportionately on a small group of workers in both the private and public sectors. The presumptions were enacted to reduce the barriers to accessing the workers’ compensation system for essential workers suffering from COVID-19.1 So for several years, the COVID-19 presumptions made it easier for many workers to prove entitlement to workers' compensation benefits for illnesses related to COVID-19.

Special Report: WCAB Must Act on Petition for Reconsideration Within 60 Days

The workers' compensation appeals board (WCAB) has historically and increasingly faced a struggle to handle the volume of cases that come its way. As a result, too often it has failed to take action on a filed petition for reconsideration within the statutorily required 60 days. To date, parties have been protected from that failure because it was deemed a due process right to have the petition reviewed by the WCAB. Currently, scores and perhaps hundreds of cases are in that situation. In a new appellate court case, Zurich American Insurance Co. v. WCAB, it all seems to have changed, leaving all those parties without a remedy, and changing the reconsideration demands on practitioners. Labor Code § 5909 states, "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." It was not uncommon for the WCAB to grant reconsideration beyond the 60-day period due to its own errors or inefficiencies. But...

Reopening Claims Dismissed for Lack of Prosecution

California Code of Regulations § 10550 outlines the procedure for dismissing a case for lack of prosecution, often referred to as a dismissal for inactivity. In simple terms, if a case is not activated for hearing within a year from the filing of the application for adjudication or an order taking it off the calendar, the case may be dismissed.

Expedited Review of Requests for Treatment

An employer must conduct utilization review (UR) to determine whether to approve, modify or deny a request for treatment. If the medical services have not been provided, Labor Code 4610(i)(1) normally requires the 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." California Code of Regulations § 9792.9.1(c)(3) generally requires prospective or concurrent UR decisions to be made within five business days from the date of receipt of the completed DWC form RFA (request for authorization).

Service of Qualified Medical Evaluator Panels

Labor Code § 4062.2 establishes the procedure to be followed "[w]henever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney." A party may request a panel of qualified medical evaluators (QME panel) the first working day that's at least 10 days after the date of mailing a request for a medical evaluation pursuant to LC 4060, or the first working day that's at least 10 days after the date of mailing an objection pursuant to LC 4061 or LC 4062.

Handling Pending Appeals Following Earley v. WCAB

On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. The court held that grant-for-study orders violated Labor Code § 5908.5. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days. This case was discussed in detail in our previous article.

Special Report: Appellate Court Invalidates WCAB's Practice of Granting Reconsideration for Further Study

On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. It held that pursuant to Labor Code § 5908.5, the WCAB must state in detail the reasons for its decision to grant reconsideration and the evidence that supports it. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days.

Request for a Replacement Panel Pursuant to Romero

The Labor Code describes different procedures for requesting a panel of qualified medical evaluators (QMEs). Labor Code § 4062.1 controls the procedure by which parties may obtain a medical evaluation to address a disputed issue pursuant to LC 4060, LC 4061 and LC 4062 when the employee is not represented by an attorney. LC 4062.2 establishes the procedure when an employee is represented by an attorney. Pursuant to LC 4062.1(b), either party may request a QME panel per LC 4060, LC 4061 and LC 4062 by submitting the form prescribed by the administrative director requesting the medical director to assign a panel of three QMEs. In unrepresented cases, the California Code of Regulations § 30(a)(1) states that for disputes covered by LC 4060, the requesting party must attach the claims administrator's notice that the claim was denied or a copy of the claims administrator's request for an examination to determine compensability. For disputes covered by LC 4061 or LC 4062, CCR 30(a)(2)...

Special Report - Kuciemba v. Victory Woodworks, Inc.: Employer Does Not Owe a Duty of Care to Prevent the Spread of COVID-19 to Employees' Household Members

Employees have the right to file workers' compensation claims when they contract COVID-19 as a result of their employment. Workers' compensation is the exclusive remedy for an employee's COVID-19 claim. Generally, the exclusive remedy doctrine bars not only civil claims against an employer by an injured worker, but also extends to claims brought by all others that are collateral to or derivative of the employee's injury. This is known as the derivative injury rule.

Special Report - Nunes v. State of California, Dept. of Motor Vehicles: Vocational Apportionment Invalid

It has long been recognized that an employee's ability to participate in vocational retraining is a significant factor that must be considered in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee's inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, an employee still can rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation. (Ogilvie v. WCAB (2011) 76 CCC 624.) That's commonly done with evidence from vocational experts.

Credit for Overpayment of Permanent Disability

It is not uncommon for a defendant to overpay permanent disability (PD) benefits. An overpayment might occur for several reasons. The defendant might not receive the physician's report declaring the applicant permanent and stationary until long after the evaluation. Or a defendant simply might make a mistake and pay more PD than required. Labor Code § 4909 states, "Any payment, allowance, or benefit received by the injured employee ... [that] was not then due and payable ... shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer, but any such payment, allowance, or benefit may be taken into account by the appeals board in fixing the amount of the compensation to be paid." LC 4909 is widely understood as empowering the Workers' Compensation Appeals Board (WCAB) with discretion to grant or deny credit for overpayments.

WCAB Extends Time Limit to Use Voucher Due to COVID-19

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations. One of the limits not extended, either by executive order, emergency regulation or court order, was the time limit for an injured employee to use the supplemental job displacement benefit (SJDB) voucher. Pursuant to Labor Code § 4658.7(g), "The voucher shall expire two years after the date the voucher is furnished to the employee, or five years after the date of injury, whichever is later. The employee shall not be entitled to payment or reimbursement of any expenses that have not been incurred and submitted with appropriate documentation to the employer prior to the expiration...

Unpublished Opinions Are Not Citable

"Sullivan on Comp" resolves to be the most comprehensive treatise on California workers' compensation. Accordingly, its authors strive to include every relevant case. Different types of cases cited in "Sullivan on Comp" are weighted differently. Decisions from the California Supreme Court and published opinions from the California Courts of Appeal are binding on the Workers' Compensation Appeals Board and its judges. If possible, practitioners should cite those cases to support an argument.

What Constitutes a Timely Denial Under LC 5402(b)?

Generally, an employer must deny a claim within 90 days to avoid a presumption that it's compensable. Labor Code 5402(b)(1) states, "If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division." Once the presumption attaches, it can be rebutted only by evidence that could not have been obtained with the exercise of reasonable diligence within the 90-day period. (SCIF v. WCAB (Welcher) (1995) 60 CCC 717.) In Rodriguez v. WCAB (1994) 59 CCC 857, however, the Court of Appeal held that an employer is not required to issue a denial letter within the 90-day period to effectively deny the claim. In Rodriguez, the employer sent a denial letter on the 89th day following the filing of a claim form, and the applicant did not receive it until the 96th day. The applicant asserted that the denial letter had to be received within the 90-day period to be a sufficient denial pursuant to LC 5402(b)....

Requesting Consulting Physicians Within an MPN

Labor Code 4616.3(c) establishes a process that allows injured employees to obtain second and third opinions from physicians within a medical provider network. It states, "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network." Per LC 4616.4(b), "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request an MPN independent medical review regarding the disputed treatment or diagnostic service still in dispute ... in accordance with Section 4616.3." That's referred to as an MPN IMR. California Code of Regulations § 9767.7 supports those statutes. CCR 9767.7(a) restates that an employee may obtain a...

Special Report: Revisions to Medical-Legal Evaluation Regulations

The Division of Workers' Compensation (DWC) revised regulations related to medical-legal evaluations effective Feb. 2, 2023. The regulations make changes to the rules for scheduling QME examinations and permanently adopt regulations allowing remote medical-legal evaluations. Specifically, the regulations make these changes to the medical-legal process:

Striking a Qualified Medical Evaluator and the Mailbox Rule Revisited

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, Labor Code 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." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel. Under the current process, however, the parties do not receive the QME panel at the same time. QME panel requests must be submitted electronically via the Division of Workers' Compensation website. After the request online, the panel is generated automatically. Within one working day, the requesting party is required to serve a copy of the panel and any supporting documentation with a proof of service. The party...

Vocational Evidence and LC 4660.1(c)

For injuries on or after Jan. 1, 2013, Labor Code 4660.1(c)(1) states that "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." LC 4660.1(c)(2)(A)(B), however, specifies two exceptions allowing an increased impairment rating for a psychiatric disorder. An employee may receive such a rating by proving that the injury resulted from either: (1) being a victim of a violent act or direct exposure to a significant violent act; or (2) a catastrophic injury. Moreover, the WCAB continues to hold that the permanent disability schedule under LC 4660.1 can be rebutted by vocational evidence. How should LC 4660.1(c)(1) be applied if the employee is unable to return to the open labor market as a result of his or her physical injury in addition to a compensable consequence psychological disorder? The issue was addressed recently in the case of Schaan v. Jerry Thompson...

WCAB Holds That Chronic Traumatic Encephalopathy (CTE) Is an Insidious Progressive Disease

Generally, the Workers' Compensation Appeals Board's jurisdiction to award new and further disability is limited to five years from the date of injury. Labor Code 5410 states, "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability." LC 5804 states, "No award of compensation shall be rescinded, altered, or amended after five years from the date of injury ..." unless there is a timely filed petition. The appeals board generally may not reserve jurisdiction to award additional disability more than five years from the date of injury. (Hartsuiker v. WCAB (1993) 12 Cal. App. 4th 209.)

WCAB's Denial of 132a Claim Does Not Bar Civil Claim Under FEHA

Generally, workers' compensation is the exclusive remedy for injuries occurring at the workplace. A worker normally must pursue claims for work-related injuries before the Workers' Compensation Appeals Board (WCAB) rather than sue the employer in civil court. Nevertheless, certain types of intentional conduct take the employer beyond the boundaries of the compensation bargain. In City of Moorpark v. Superior Court of Ventura County (Dillon) (1998) 18 Cal.4th 1143, the California Supreme Court held that discrimination falls outside of the compensation bargain. It concluded that Labor Code 132a does not provide the exclusive remedy for discrimination based on a work-related injury.

Analysis of Senate Bill 1127

Yesterday we issued a summary of workers' compensation bills recently signed into law. The most significant is SB 1127, which is outlined in depth here. A webinar will be scheduled shortly to delve into these changes and their implications. On Sept. 29, 2022, Gov. Gavin Newsom signed into law SB 1127. The bill makes several changes to coverage by a statutory presumption of compensability. As explained in the Assembly Floor Analysis, "presumptions of compensability have been adopted, some many decades ago, to reflect unique circumstances where injuries or illnesses appear to logically be work related, but it is difficult for the injured worker to prove it is work related."[1]

California Workers' Compensation Bills

The 2022 legislative season is over. The Legislature had until Aug 31, 2022 to pass bills, and Governor Gavin Newsom had until Sept. 30, 2022 to sign or veto bills. The bills signed by the Governor take effect on Jan. 1, 2023. Below is a list of bills affecting California workers' compensation.

Receipt of a Request for Authorization by a Defense Attorney

Labor Code § 4600(g)(2)(A) states, "Unless otherwise indicated in this section, a physician providing treatment under Section 4600 shall send any request for authorization for medical treatment, with supporting documentation, to the claims administrator for the employer, insurer, or other entity according to rules adopted by the administrative director." The statute directs that a request for authorization for medical treatment (RFA) must be sent to a claims administrator, rather than somewhere else, although the claims administrator may designate where the RFA is sent (CCR 9792.6.1(t)(3)). That language was added effective Jan. 1, 2017, by AB 2503. Pursuant to the Senate Floor Analysis, "[I]t is often difficult for health care providers in the workers' compensation system to obtain timely approval for treatment of injured workers because it is difficult to know where to send RFAs." So, the bill was "intended to clarify where the RFA and related materials must be sent, so that the...

Liability for Cumulative Trauma Injury Under LC 5500.5

Multiple employers or insurers can be liable for a cumulative trauma (CT) injury, and it's common for employers or insurers to dispute whether and how much liability they have for such an injury. Pursuant to Labor Code 5500.5(a), liability for a CT injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first. So there's no single point from which the liability period is determined. It could be based on either the date of injury under LC 5412 or the last date of injurious exposure. Furthermore, the date of injury under LC 5412 requires the concurrence of: (1) compensable disability; and (2) knowledge of industrial causation. The liability period for a CT injury is a frequent source of contention.

DWC Announces In-Person Walk-Throughs Starting Sept. 6 2022

On August 9, 2022, the Division of Workers' Compensation (DWC) announced that all DWC district offices except Eureka will accept in-person walk-through documents beginning September 6, 2022, pursuant to CCR 10789. Eureka is permanently a virtual office and walk-through documents should be brought to the DWC Santa Rosa district office. Additionally, effective September 6, 2022, DWC will not accept virtual walk-throughs in the Lifesize platform. Virtual walk-throughs were put in place due to the COVID-19 pandemic in 2021. DWC will only accept walk-through documents in-person. Walk-throughs will be available Monday through Friday, except on holidays when the Division's offices are closed.

Time Extensions for Petitions for Reconsideration

Per Labor Code § 5903, a petition for reconsideration may be filed "[a]t any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers' compensation judge." Althoug LC 5903 establishes a basic 20-day time period for filing a petition for reconsideration, most parties are given longer. That's because the California Code of Regulations § 10605 extends the time to act following service of a document. It explains that if a document is served by mail, fax, email or any method other than personal service, the period of time for exercising any right or duty to act or respond will be extended:

Special Employment and Union Workers

When an employer lends an employee to another employer and both have the right to exercise certain powers of control over the worker, a "special employment" relationship arises. The employee can be held to have two employers –– the original "general employer" and the second "special employer." If a special employment relationship is found to exist, both employers are jointly and severally liable for any injuries to the employee. A special employment relationship commonly is formed when a temporary employment agency or labor contractor sends a worker to another company to perform work. But it's not limited to those situations. Generally, in determining the existence of a special employment relationship, the right of control is the paramount factor. But it's not the exclusive factor and it's not determinative of the issue. The courts will look at multiple factors to determine whether special employment exists.

Settling Cumulative Trauma Claims Involving Multiple Defendants

Pursuant to Labor Code 5500.5(a), liability for a cumulative trauma injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first. Multiple employers or insurers can be liable for a cumulative trauma injury. An employee can choose to obtain an award for her or his entire CT injury from one or more employers for whom they have worked within the preceding year (LC 5500.5(c)). LC 5005 also allows an employee and any employer to enter into a compromise and release (C&R) agreement settling all or any part of the employee's claim in cases involving cumulative trauma or occupational disease. If an employer settles all of the applicant's cumulative trauma claim, it may resort to contribution proceedings against all remaining defendants. If an employee and an employer settle only part of the worker's CT claim, the worker may recover from other defendants for...

Statute of Limitations for Death Claim Resulting From Cumulative Trauma Injury

The statute of limitations for pursuing death benefits is established in LC 5406. Except for LC 5406.5 and LC 5406.6 (which cover deaths from asbestos and HIV-related disease), proceedings for the collection of death benefits, per LC 5406(a), may be commenced one year from: the date of death when it occurs within one year from date of injury; the date of last furnishing of any compensation benefits, when death occurs more than one year from the date of injury; or the date of death, when death occurs more than one year after the date of injury and compensation benefits have been furnished.

Designating Address, Fax Number or Email Address for Utilization Review Purposes

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rules of Practice and Procedure to permit electronic service, including via email. The Labor Code, however, previously recognized electronic service of a request for authorization (RFA) for medical treatment. Specifically, LC 4610(i)(1) states: "The request for authorization and supporting documentation may be submitted electronically under rules adopted by the administrative director." To avoid complications and unnecessary delays in the utilization review (UR) process, the Labor Code and administrative regulations also specify to whom and how RFAs must be served. LC 4610(g)(2)(A) requires a requesting physician to send an RFA "to the claims administrator for the employer, insurer, or other entity according to the rules adopted by the administrative director." That language was adopted because physicians expressed difficulty in determining to whom an RFA should be sent. So the Labor Code clarifies that...

DWC Announces In-Person Trials Starting March 21, 2022

On March 9, 2022, the Division of Workers’ Compensation (DWC) announced that in-person hearings will resume starting March 21, 2022, at almost all of the DWC district offices. The only exceptions are Eureka, which is now a completely virtual office, and satellite locations Bishop, Marysville, Chico and Ukiah, which also will remain virtual. The in-person hearings apply only to trials, lien trials, expedited hearings and special adjudication unit (SAU) trials. The DWC will continue to telephonically hear all mandatory settlement conferences, priority conferences, status conferences, SAU conferences and lien conferences via the individually assigned judges’ conference lines.

The Centers for Medicare & Medicaid Services Issues Warning Regarding the Use of 'Non-Submit' and 'Evidence-Based' Medicare Set-Asides

The Centers for Medicare & Medicaid Services (CMS) has updated its Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. The latest version, Version 3.5, was published Jan. 10, 2022. The Reference Guide was updated to clarify the use of non-CMS-approved products to address future medical care. Medicare is a secondary payor — that is, it does not have primary payment responsibility on behalf of 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. So 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.

How to Navigate Electronic Service

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rules of Practice and Procedure to permit electronic service, including via email. That represents a huge change for the practitioner. This article addresses questions we've encountered since the amendment. The New Rules The new rules are available on the DWC website. They include an amendment to the California Code of Regulations § 10625 –– CCR 10625(b) now expressly permits electronic service, in addition to personal service, first-class mail and any alternative method that would effect equivalent service. In addition to other requirements, CCR 10625(c) now directs that if a document is served electronically, the proof of service must state the names and email addresses of the person serving and the person served electronically. To facilitate electronic service, CCR 10400 was amended to require that a notice of representation includes the email address of the law firm or other entity's agent for...

Establishing Permanent Total Disability with Medical and Vocational Evidence

It has long been recognized that an employee's ability to participate vocational retraining is a significant factor that must be considered in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee's inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, in Ogilvie v. WCAB (2011) 76 CCC 624, the Court of Appeal held that an employee could still rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation Although vocational evidence is often used to establish that an employee is not amenable to rehabilitation, the WCAB also commonly relies on medical evidence to establish a worker's inability to work, and permanent total disability. In Applied Materials v. WCAB (2021) 86 CCC 331, however, the 6th District Court of Appeal held that the WCAB erred in awarding...

DWC Announces Virtual Hearings Starting Jan. 12, 2022

On Jan. 11, 2022, the Division of Workers’ Compensation (DWC) announced that all hearings would be conducted virtually as of Jan. 12, 2022. That means that all trials, lien trials, expedited hearings and Special Adjudication Unit (SAU) trials will be heard telephonically. Mandatory settlement conferences, priority conferences, status conferences, SAU conferences and lien conferences will continue to be held on the individually assigned judges’ conference lines. The decision to pause in-person hearings was made because of the recent surge in COVID-19 cases. The pause will continue through the end of the month and is to be re-evaluated then. DWC hearing notices will not change, but parties are given notice that as of Jan. 12, 2022, if a trial, expedited hearing, lien trial or SAU trial is set at a district office, all parties should call the judges’ assigned conference line and not appear in person.

WCAB Adopts New Rules for Remote Hearings, Electronic Service and Meetings Prior to MSC Effective Jan. 1, 2022

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) amended its Rules of Practice and Procedure to allow for remote hearings and electronic service. The changes made permanent many of the temporary changes implemented by the WCAB. Since the start of the COVID-19 pandemic in March 2020, the WCAB has made changes to allow virtual operations. They include the adoption of electronic signatures, service and filing of documents. The board also transitioned to remote hearings conducted via telephone and video.

Derivative Injury Rule Does Not Shield Employers from Civil Claim for Family Member's Death from COVID-19

Generally, the exclusive remedy doctrine bars not only civil claims against an employer by an injured worker but also extends to claims brought by all others that are collateral to or derivative of the employee's injury. This is known as the derivative injury rule and is supported by the Labor Code. Pursuant to LC 3600(a), compensation under the workers' compensation system is provided "in lieu of any other liability whatsoever to any person (emphasis added). Moreover, LC 3602(a) states, "Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is ... the sole and exclusive remedy of the employee or his or her dependents against the employer" (emphasis added). Accordingly, dependents and other persons cannot bring civil claims that are derivative of an employee's work-related injuries. For example, family members cannot bring civil claims for intentional infliction of emotional distress, loss of consortium or wrongful death that are...

Authentication of Video Evidence at Trial

Video/surveillance evidence is commonly presented in workers' compensation litigation. When and how such evidence may be admitted, however, has not been well-defined. In some cases, the WCAB has refused to admit such evidence when the defendant could not lay a foundation for it by producing the investigator who captured the images. (See PSI Bearings v. WCAB (Tallent) (2001) 66 CCC 1114 (writ denied); Richard v. San Francisco 49ers (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 265.) In the recent decision of Johnson v. Lexmar Distribution dba LDI Trucking, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 289, however, the WCAB indicated that the investigator's testimony no longer might be necessary to admit the material into evidence.

Cancelling An AME Agreement

Agreed Medical Evaluators (AMEs) have an important role in resolving discovery disputes in the workers' compensations system. Rather than relying on a panel of qualified medical evaluators (QMEs) randomly selected by the Medical Unit, the parties mutually may agree on an AME to resolve any disputed medical issues. There is a presumption that AMEs are chosen because of their expertise and neutrality. So an AME's opinion ordinarily is followed unless there is a good reason to find the opinion unpersuasive. (Power v. WCAB (1986) 179 Cal. App. 3d 775, 782.)

Compensability of Injury From Government-Mandated COVID-19 Vaccination

The U.S. Food and Drug Administration (FDA) has authorized the use of COVID-19 vaccines to enhance people's ability to resist infection by the virus. Vaccines are widely available, and many employers are deciding whether to require employees to be vaccinated (or incentivize them) as a condition for returning to work. For some employees, however, COVID-19 vaccinations are or will be mandated by the government. The federal Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it's developing a rule requiring all employers with 100 or more employees to ensure that their workforce is fully vaccinated or that workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. In California, certain employees already are required to be vaccinated as a condition of employment. California has ordered that all health-care workers must be vaccinated unless they are exempt for religious or medical reasons. It has...

MPN Access Standards If an Employee Chooses to Treat with a Specialist

For a medical provider network (MPN) to be valid, it must offer access and a certain degree of choice for the injured worker. Labor Code 4616(a)(1) states, "The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged..." It also requires an MPN to include physicians based on "the geographic area where the employees are employed." Accordingly, California Code of Regulations, Title 8, 9767.5 establishes the access standards for a valid MPN. CCR 9767.5(a) requires an MPN to "have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2)." CCR 9767.5(a)(1) requires an MPN...

DWC Announces In-Person Trials Starting Oct. 1, 2021

On Sept. 1, 2021, the Division of Workers’ Compensation (DWC) announced that in-person hearings will resume starting Oct. 1, 2021, at almost all of the DWC district offices. The only exceptions are Eureka, which is now a completely virtual office, and satellite locations Bishop, Marysville, Chico and Ukiah, which also will remain virtual.

Accumulation of Permanent Disability Awards to Body Regions Under LC 4664(c)

When defendants seek to apportion an applicant's permanent disability, most often they look to apply Labor Code § 4663, which directs that apportionment be based on causation. LC 4663 requires a physician to consider factors both before and subsequent to the industrial injury, and the courts have not limited what can be apportioned under § 4663. They have allowed defendants to apportion to asymptomatic previous conditions, risk factors and even genetic factors. The only limitation has been that to apportion under § 4663, the physician's opinion about apportionment must be substantial evidence. Labor Code § 4664 is the other statute that addresses apportionment in the California workers' compensation system, and it allows apportionment to a previous award of permanent disability benefits. LC 4664(b) states, "If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent...

Consolidation of Cases for the Purposes of Discovery

California Code of Regulations, Title 8, 10396, gives the Workers' Compensation Appeals Board discretion to consolidate two or more related cases. This authority commonly is used when a worker claims more than one injury as a result of his or her employment. Consolidation in such cases often is uncontested because it's more efficient for all parties for all of the cases to be heard and decided in a single proceeding. Consolidation, however, is not limited to cases involving a single employee. CCR 10396 also allows the WCAB to consolidate cases involving multiple injured workers after considering relevant factors, including, but not limited to:

Actual Event of Employment Under LC 3208.3(b)(1)

Labor Code § 3208.3(b)(1) requires a psychiatric injury to be caused predominantly by "actual events of employment." The Court of Appeal has recognized that "The phrase 'actual events of employment' does not provide clear guidance because it is 'susceptible to many meanings.'" (Verga v. WCAB (2008) 159 Cal. App. 4th 174, 185.) It noted that "The intent of the statute was 'to establish a new and higher threshold of compensability for psychiatric injury' and to 'limit claims for psychiatric benefits due to their proliferation and their potential for fraud and abuse.'" (Verga v. WCAB (2008) 159 Cal. App. 4th 174, 185.)

Applied Materials v. WCAB: 6th District Court of Appeal Holds That Physician Misconduct Is Compensable, But Upholds Fitzpatrick

On June 1, 2021, the 6th District Court of Appeal certified for publication its decision in Applied Materials et al. v. WCAB. The decision can be reviewed on the California courts' website. In that case, the Court of Appeal issued a lengthy, 73-page decision addressing multiple issues raised by the parties. The decision is most significant for two issues:

Obtaining the Voucher After Settlement

Sometimes, parties settle a claim by way of compromise and release (C&R) before the injured worker is released from care. There are various reasons why they might agree do this. Employees might want to avoid the delays and risks in the litigation process. Employers might want to avoid discovery and litigation costs, and to close the file. Although most issues can be resolved as part of a C&R, Labor Code § 4658.7(g) precludes settlement or commutation of a claim for the supplemental job displacement benefit (SJDB) voucher for injuries occurring on or after Jan. 1, 2013. But an employee is not automatically entitled to the voucher. Pursuant to § 4658.7(b), an employee is entitled to the voucher only if the injury causes permanent partial disability and the employer does not make a timely offer of regular, modified or alternative work.

QME Evaluations Via Telehealth

Because of the backlog of medical-legal evaluations caused by the COVID-19 pandemic, the Division of Workers’ Compensation (DWC) adopted emergency regulations for medical-legal evaluations and reporting. The regulations became effective May 14, 2020, and originally were set to expire March 12, 2021. But they have been extended until Oct. 12, 2021.See DIR Newsline dated March 10, 2021.

Employer-Provided Vaccines and Workers' Compensation Liability

Register to Attend a Webinar on This Topic Wednesday 1/20/2021 at 11 a.m. to 12 p.m.

Temporary Disability Benefits Due To Covid-19 Stay-At-Home Orders

The COVID-19 pandemic has had significant financial consequences for many employers and employees. Due to the overall need to protect the public at large from the spread of COVID-19, the state of California and many local governments have issued stay-at-home orders, closing nonessential businesses or allowing them to remain open only if their employees could telecommute. Many businesses were forced to shut down during the stay-at-home orders, and many employees found themselves out of work.

Gund v. County of Trinity: Application of the Exclusive Remedy Rule to Members of the Public Assisting in Active Law Enforcement

On Aug. 27, 2020, in Gund v. County of Trinity, the California Supreme Court issued a decision that highlights what injured workers must give up as part of the compensation bargain.

Remote Depositions in Response to COVID-19

Due to the spread of the novel coronavirus, California Gov. Gavin Newsom issued an executive order on March 19, 2020. It requires all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Services that remain open include grocery stores, gas stations, pharmacies, banks, laundromats and many government and public service functions, including law enforcement, emergency services and utility maintenance and repair.[1]

The Impact of The Families First Coronavirus Response Act on Employers with Fewer than 500 Employees

On March 14, 2020, the House passed the Families First Coronavirus Response Act (H.R. 6201). On March 18, 2020, the Senate passed the bill which was significantly revised from its original form. President Trump signed it into law the same day. The effective dates of these provisions are from April 1, 2020 through December 31, 2020.

WCAB Emergency Actions in Response to COVID-19

The novel coronavirus, now called COVID-19, is spreading rapidly around the world. There are confirmed cases in every state in our union. Everyone has a duty to act proactively to prevent the spread of the disease. In addition to other measures, the Centers for Disease Control and Prevention recommends "social distancing," which it defines as "remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters) from others when possible." It defines "congregate settings" as "crowded public places where close contact with others may occur, such as shopping centers, movie theaters, stadiums."[1] Accordingly, the Division of Workers' Compensation (DWC) and the Workers' Compensation Appeals Board (WCAB) have taken emergency action to limit the number of people who appear at the WCAB district offices around the state. On March 16, 2020, the DWC and WCAB announced a modified hearing calendar and emergency rules on filing.[2] From March...

DWC Orders Modified Hearing Calendar and Change in Filing Procedures

The DWC has decided to take direct action to help contain the corona virus. Here is the notification they sent today: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.

Special Report: Workers' Compensation Liability For The Coronavirus

As is now common knowledge, Covid-19, commonly called the "novel coronavirus" or just the "coronavirus," is spreading rapidly across the many parts of the world, including California. Countries around the world are taking dramatic steps to combat the spread of the virus. What does this mean for workers' compensation in California?

Urgent Report - Skelton v. WCAB: No Temporary Disability While Attending Medical Treatment Appointments

A California Court of Appeal ruling this month held that an industrially injured employee may not receive temporary disability benefits when he or she takes time off from work to attend medical treatment appointments.

Liability for the Supplemental Job Displacement Benefit

For injuries occurring on or after Jan. 1, 2004, an employee who suffers residual effects from an injury and is unable to return to work is entitled to a supplemental job displacement benefit. The benefit comes in the form of a nontransferable voucher, and often is referred to by practitioners simply as the "voucher."

Are Saturdays Business Days for the Purposes of Utilization Review?

Since 2004, an employer is required to conduct a utilization review (UR) in order to dispute a request for medical treatment. Under the current law, if an injured worker challenges a UR determination to deny or modify a request for treatment, the worker must request an independent medical review (IMR) from an organization contracted by the administrative director. If, however, the UR determination is untimely, it is not subject to an IMR. Instead, the determination of medical necessity may be made by the WCAB. (Dubon v. World Restoration, Inc. (2014) 79 CCC 1298 (WCAB en banc).) So, it's crucial for employers to conduct their URs in a timely manner.

URGENT REPORT: Villanueva v. Teva Foods: Control by Criminally Charged Provider for the Purposes of LC 4615 Stay

In 2016, the California Legislature passed two bills to combat workers' compensation fraud, AB 1244 and SB 1160. As a result of this legislation, per LC 4615, any lien and any accrual of interest related to the lien, are automatically stayed on the filing of criminal charges against a physician or provider for an offense involving fraud against the workers’ compensation system, medical billing fraud, insurance fraud or fraud against the Medicare or Medi-Cal programs.

URGENT REPORT: City of Petaluma v. WCAB (Lindh): Apportionment to Risk Factors

In 2004, the Legislature made a diametric change to the law on apportionment. Labor Code § 4663 was amended to allow apportionment to causation. Under this statute, employers are only liable for the percentage of permanent disability directly caused by the injury arising out of and in the course of employment.

Case Law Updates for November 2018

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

URGENT REPORT: Civil Claims Against Utilization Review Physicians

The exclusive remedy rule limits an employee's remedies against an employer for injuries sustained during the course of the employment. The purpose of the exclusive remedy rule is to protect the employer's side of the compensation bargain. Under the compensation bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.

Case Law Updates for April 2018

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

What Qualifies as a Request for a Medical Evaluation Pursuant to Labor Code 4060?

In disputed cases, parties often rush to request a panel QME in a desired specialty. Per Labor Code § 4062.2(b), when an employee is represented by an attorney seeking an evaluation under § 4060, a QME panel may be requested "No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 ...." The mailbox rule extends this time period for five calendar days if the physical address of the party being served with the first written proposal is within California. But what is a "request for a medical evaluation pursuant to Section 4060"?

Use of the Fifth Amendment in Workers' Compensation

The Fifth Amendment to the United States Constitutes protects individuals from being forced to testify against themselves. Although the Fifth Amendment itself states that a person shall not "be compelled in any criminal case to be a witness against himself," it has been held that, "It also privileges a person not to answer official questions in any other proceeding, civil or criminal, formal or informal, where he or she reasonably believes the answers might incriminate him or her in a criminal case." (Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704, 714.) Accordingly, the Fifth Amendment privilege against self-incrimination also is recognized in workers' compensation proceedings.

Case Law Updates for March 2018

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Case Law Updates for February 2018

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Case Law Updates for December 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Case Law Updates for November 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

SOC Webinar 3rd Quarter Update - 2017

Join us for the live SOC Webinar 3rd Quarter Update - 2017 Breakthrough Thinking in Causation of Injury and the Rice Case - Part 2

Case Law Updates for October 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Case Law Updates for September 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Psychiatric Impairment Under Labor Code § 4660.1(c)

Case Law Updates for August 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Can the Deposition of an Injured Worker's Spouse be Compelled in Workers' Compensation Proceedings?

The law establishes a marital privilege protecting a person from testifying against his or her spouse. Although this privilege is commonly used in criminal proceedings, it applies to more than that.

Case Law Updates for July 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Sullivan on Comp Publishes “Special Report: SB 863 Five Years Later” E-book

New Sullivan on Comp publication provides comprehensive analysis of recent significant changes to the California workers’ compensation law and is available as a free, downloadable e-book.

Sullivan on Comp Supports Save the Rhino

A portion of all sales of Sullivan on Comp are donated to Save the Rhino International, a charitable organization dedicated to stopping the poaching of rhinos worldwide.

Case Law Updates for June 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

SOC Webinar 2nd Quarter Update - 2017

Join us for the live SOC Webinar 2nd Quarter Update - 2017 Apportionment to Genetic Factors and Immutable Characteristics: The Rice Case and its Implications Part 1: Psychiatric Claims

Case Law Updates for May 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Case Law Updates for April 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

SOC Webinar 1st Quarter Update - 2017

Join us for the live SOC Webinar 1st Quarter Update - 2017: Highlights of 2016.

Case Law Updates for March 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Case Law Updates for February 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

Sullivan on Comp is Moving to Its Own Platform on February 1st!

Starting February 1st, "Sullivan on Comp," currently hosted on WorkCompCentral.com, will be hosted right here on SullivanOnComp.com. Other than a new location, very little will change. You will have: the same user name and login, the same expiration/renewal date, the same renewal date and book replacement schedule. Corporate subscribers will receive replacement desktop icons. (Until then, current ones will work by forwarding you to this site as an already-authorized user.) And, if you are also a WorkCompCentral subscriber, you’ll be able to go back and forth between SOC and WorkCompCentral.com with a single click, while staying logged in to both.

Case Law Updates for January 2017

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates.

Case Law Updates for December 2016

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found in Sullivan on Comp available to subscribers at WorkCompCentral.com.

SOC: Q4 Webinar Update registration now available!

Join us for the Sullivan on Comp quarterly webinar “Subrogation – What are you leaving on the table?” Anna Monteleone will be identifying subrogation potential in workers’ compensation cases and opportunities to recover reimbursement and credit for the third party settlements. Michael Sullivan will be discussing Significant Cases of 2016 & legislative changes under SB 1160 and AB 1244. Click here to register!

Case Law Updates for November 2016

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found in Sullivan on Comp available to subscribers at WorkCompCentral.com.

Case Law Updates for October 2016

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found in Sullivan on Comp available to subscribers at WorkCompCentral.com.

Case Law Updates for September 2016

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found in Sullivan on Comp available to subscribers at WorkCompCentral.com.

Case Law Updates for August 2016

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found in Sullivan on Comp available to subscribers at WorkCompCentral.com.

Sullivan on Comp Updates for July 2016

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found in Sullivan on Comp available to subscribers at WorkCompCentral.com.

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This is the place to keep up-to-date with the latest news and information about our Sullivan On Comp publication. Please take a minute to subscribe to our blog, which will allow you to receive alerts for upcoming posts and learn more about our comprehensive California Workers’ Compensation treatise.