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Time Extensions for Petitions for Reconsideration

Posted by:  Sure S. Log
Topics: Recon Time Petition 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:

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Special Employment and Union Workers

Posted by:  Sure S. Log
Topics: Special Employer Union Employee LC 11663

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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Settling Cumulative Trauma Claims Involving Multiple Defendants

Posted by:  Sure S. Log
Topics: cumulative trauma CT Defendants Multiple

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...

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Statute of Limitations for Death Claim Resulting From Cumulative Trauma Injury

Posted by:  Sure S. Log
Topics: Death Benefits Statute of Limitations cumulative trauma

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.

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

Posted by:  Sure S. Log
Topics: Division of Workers' Compensation Workers' Compensation Appeals Board Utilization Review Request for Authorization 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. 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...

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DWC Announces In-Person Trials Starting March 21, 2022

Posted by:  Sure S. Log
Topics: COVID-19 Division of Workers' Compensation Workers' Compensation Appeals Board Hearings Workers Compensation Special Adjudication Unit Trials

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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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

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

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...

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Establishing Permanent Total Disability with Medical and Vocational Evidence

Posted by:  Sure S. Log

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...

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DWC Announces Virtual Hearings Starting Jan. 12, 2022

Posted by:  Sure S. Log

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.

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