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.
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).
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.
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.
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.
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)...
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.
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.
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.
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...
