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DWC Announces In-Person Trials Starting March 21, 2022

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

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

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

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

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

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

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

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

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

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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