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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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MPN Access Standards If an Employee Chooses to Treat with a Specialist

For a medical provider network (MPN) to be valid, it must offer access and a certain degree of choice for the injured worker. Labor Code 4616(a)(1) states, "The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged..." It also requires an MPN to include physicians based on "the geographic area where the employees are employed." Accordingly, California Code of Regulations, Title 8, 9767.5 establishes the access standards for a valid MPN. CCR 9767.5(a) requires an MPN to "have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2)." CCR 9767.5(a)(1) requires an MPN...

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DWC Announces In-Person Trials Starting Oct. 1, 2021

On Sept. 1, 2021, the Division of Workers’ Compensation (DWC) announced that in-person hearings will resume starting Oct. 1, 2021, 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.

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Accumulation of Permanent Disability Awards to Body Regions Under LC 4664(c)

When defendants seek to apportion an applicant's permanent disability, most often they look to apply Labor Code § 4663, which directs that apportionment be based on causation. LC 4663 requires a physician to consider factors both before and subsequent to the industrial injury, and the courts have not limited what can be apportioned under § 4663. They have allowed defendants to apportion to asymptomatic previous conditions, risk factors and even genetic factors. The only limitation has been that to apportion under § 4663, the physician's opinion about apportionment must be substantial evidence. Labor Code § 4664 is the other statute that addresses apportionment in the California workers' compensation system, and it allows apportionment to a previous award of permanent disability benefits. LC 4664(b) states, "If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent...

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Consolidation of Cases for the Purposes of Discovery

California Code of Regulations, Title 8, 10396, gives the Workers' Compensation Appeals Board discretion to consolidate two or more related cases. This authority commonly is used when a worker claims more than one injury as a result of his or her employment. Consolidation in such cases often is uncontested because it's more efficient for all parties for all of the cases to be heard and decided in a single proceeding. Consolidation, however, is not limited to cases involving a single employee. CCR 10396 also allows the WCAB to consolidate cases involving multiple injured workers after considering relevant factors, including, but not limited to:

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Actual Event of Employment Under LC 3208.3(b)(1)

Labor Code § 3208.3(b)(1) requires a psychiatric injury to be caused predominantly by "actual events of employment." The Court of Appeal has recognized that "The phrase 'actual events of employment' does not provide clear guidance because it is 'susceptible to many meanings.'" (Verga v. WCAB (2008) 159 Cal. App. 4th 174, 185.) It noted that "The intent of the statute was 'to establish a new and higher threshold of compensability for psychiatric injury' and to 'limit claims for psychiatric benefits due to their proliferation and their potential for fraud and abuse.'" (Verga v. WCAB (2008) 159 Cal. App. 4th 174, 185.)

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Applied Materials v. WCAB: 6th District Court of Appeal Holds That Physician Misconduct Is Compensable, But Upholds Fitzpatrick

On June 1, 2021, the 6th District Court of Appeal certified for publication its decision in Applied Materials et al. v. WCAB. The decision can be reviewed on the California courts' website. In that case, the Court of Appeal issued a lengthy, 73-page decision addressing multiple issues raised by the parties. The decision is most significant for two issues:

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Obtaining the Voucher After Settlement

Sometimes, parties settle a claim by way of compromise and release (C&R) before the injured worker is released from care. There are various reasons why they might agree do this. Employees might want to avoid the delays and risks in the litigation process. Employers might want to avoid discovery and litigation costs, and to close the file. Although most issues can be resolved as part of a C&R, Labor Code § 4658.7(g) precludes settlement or commutation of a claim for the supplemental job displacement benefit (SJDB) voucher for injuries occurring on or after Jan. 1, 2013. But an employee is not automatically entitled to the voucher. Pursuant to § 4658.7(b), an employee is entitled to the voucher only if the injury causes permanent partial disability and the employer does not make a timely offer of regular, modified or alternative work.

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QME Evaluations Via Telehealth

Because of the backlog of medical-legal evaluations caused by the COVID-19 pandemic, the Division of Workers’ Compensation (DWC) adopted emergency regulations for medical-legal evaluations and reporting. The regulations became effective May 14, 2020, and originally were set to expire March 12, 2021. But they have been extended until Oct. 12, 2021.See DIR Newsline dated March 10, 2021.

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