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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.

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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 Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, an employee still can rebut a scheduled rating by establishing that he or she was not amenable to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.

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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.

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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...

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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.

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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)....

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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...

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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:

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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...

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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...

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