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

Posted by:  Sure S. Log

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.

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

Posted by:  Sure S. Log

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...

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Authentication of Video Evidence at Trial

Posted by:  Sure S. Log

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.

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Cancelling An AME Agreement

Posted by:  Sure S. Log
Topics: Special Reports AME

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.)

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Compensability of Injury From Government-Mandated COVID-19 Vaccination

Posted by:  Sure S. Log
Topics: Special Reports COVID-19 Vaccine Mandate

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...

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

Posted by:  Sure S. Log
Topics: Workers Compensation MPN PTP

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...

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

Posted by:  Sure S. Log
Topics: COVID-19 Rules DWC WCAB

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.

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

Posted by:  Sure S. Log
Topics: Apportionment Permanent Disability Awards

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...

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Consolidation of Cases for the Purposes of Discovery

Posted by:  Sure S. Log
Topics: discovery CCR 10396 cases

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:

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

Posted by:  Sure S. Log
Topics: psychiatric injury LC 3208.3 Objective Evidence

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.)

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