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

Posted by Sure S. Log on Aug 9, 2022 8:00:00 AM

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.

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Topics: Emergency, Rules, DWC

Time Extensions for Petitions for Reconsideration

Posted by Sure S. Log on Jul 19, 2022 8:30:00 AM

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:

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Topics: Recon, Time, Petition, Reconsideration

Special Employment and Union Workers

Posted by Sure S. Log on Jun 21, 2022 9:00:00 AM

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.

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Topics: Special, Employer, Union, Employee, LC 11663

Settling Cumulative Trauma Claims Involving Multiple Defendants

Posted by Sure S. Log on May 17, 2022 3:57:09 PM

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 the portion of exposure not released. So, in cumulative trauma claims involving multiple defendants, the terms of a C&R will determine whether the employee or the settling employer has ongoing rights against the remaining defendants.

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Topics: cumulative trauma, CT, Defendants, Multiple

Statute of Limitations for Death Claim Resulting From Cumulative Trauma Injury

Posted by Sure S. Log on Apr 20, 2022 3:00:00 PM

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:

  1. the date of death when it occurs within one year from date of injury;

  2. the date of last furnishing of any compensation benefits, when death occurs more than one year from the date of injury; or

  3. the date of death, when death occurs more than one year after the date of injury and compensation benefits have been furnished.

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Topics: Death Benefits, Statute of Limitations, cumulative trauma

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

Posted by Sure S. Log on Mar 16, 2022 12:45:00 PM

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 the RFA and related materials should be sent to the claims administrator.

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Topics: Division of Workers' Compensation, Workers' Compensation Appeals Board, Utilization Review, Request for Authorization, Service

DWC Announces In-Person Trials Starting March 21, 2022

Posted by Sure S. Log on Mar 10, 2022 12:24:48 PM

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.

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Topics: COVID-19, Division of Workers' Compensation, Workers' Compensation Appeals Board, Hearings, Workers Compensation, Special Adjudication Unit, Trials

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

Posted by Sure S. Log on Feb 15, 2022 3:00:00 PM

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.

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How to Navigate Electronic Service

Posted by Sure S. Log on Jan 27, 2022 8:00:00 AM

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 service of process.

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Establishing Permanent Total Disability with Medical and Vocational Evidence

Posted by Sure S. Log on Jan 18, 2022 8:00:00 AM

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 100 percent permanent disability based on a psychiatric QME’s opinion that a worker’s industrial post-traumatic stress disorder (PTSD) rendered her unable to work. It found that the QME was not a vocational expert and was not qualified to opine on the worker's ability to participate in vocational rehabilitation, take advantage of training opportunities, find work from a vocational perspective or that she was 100 percent disabled from working in the open labor market. So, Applied Materials raised questions as to whether a medical opinion alone could support an award of permanent total disability.

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