BRIEF LEGAL UPDATE RE: CA WORK COMP by HNW

OLD RULE REVIVED: MED-LEGAL REPORTS

CAN AGAIN BE ELECTRONICALLY SERVED

The DWC adopted 8 CCR 36.7 which provides the rules for allowing electronic service of medical-legal reports effective April 12, 2022. The previous "emergency regulation" allowing for electronic service had expired on February 18, 2022. The highlights of the new "permanent" regulation include:

a) AUTHORIZATION: Medical reports can be electronically served only where the parties agree in writing.

b) NOTICE: The medical report's proof of service must confirm the documents were sent either by electronic transmission (with actual report) or electronic notification (with instructions on accessing the report).

c) ADDRESS: Server must use the most recently known e-mail addresses. Any party who changes an address is obligated to notify all parties.

d) DATE: Service of the report is deemed completed at time of transmission.

e) ORIGINAL: The physician shall maintain the original report w/signature.

[COMMENT: Not surprised if physicians start requiring a written agreement from the parties for electronic service as part of the exam scheduling process.]

POST- DISCOVERY PTP REPORT

To address medical issues raised by the WCAB on reconsideration, the parties agreed to depose the PTP and then close discovery. At the deposition, there was no objection to the PTP's request to be provided time to review documents and issue a supplemental report.

At the subsequent trial hearing, the WCJ disallowed the supplemental PTP report based upon the parties original agreement that discovery was to close after the PTP deposition.

In the writ denied case of Solano v. WCAB (Walmart) 2022 Cal. Wrk. Comp LEXIS 7, the WCAB held the "post-discovery" medical report should have been admitted into evidence because the parties were aware of its pending issuance without an objection, and the report addressed the specific medical legal issues raised by the WCAB on reconsideration after the first trial.

[COMMENT: Case of technicalities over practicalities. First, the discovery agreement should have been modified at the PTP's deposition to include the forthcoming supplemental report in order to complete the record. Also perplexing a report requested by the WCAB was disallowed by the WCJ.]

PROPOSED WORK COMP BILLS

After a quiet 2021, Sacramento is abuzz in 2022 with some interesting new work comp bills which include:

AB 2148/DEBIT CARDS: Would extend to 1/1/2024 the pilot program of allowing carriers to use debit cards to pay indemnity benefits. [Set to expire on 1/1/23, likely to pass.]

SB 1002/LCSW: Allows employers to provide access to licensed clinical social workers through the MPNs to address mental health issues. [Has momentum after unanimously passing in the CA Senate.]

SB 1458/GENDER PAY: Requires carriers to determine any gender wage disparities by an employer, and then increase the indemnity payments to offset the alleged wage differential. [A "clickbait" bill designed to get attention w/o a chance of passing due to the numerous complex legal issues.]

HEWS NEWS

HEWS President H. Neal Wells IV will be speaking about the ABC Test at the CSIA Annual Meeting and Seminars this month at the Disneyland Hotel Resort on May 16th. Additionally, the firm will have a booth exhibit handled by attorneys Wells (Calabasas) and Angela M. Currie (San Bernardino).

HEWS Work Anniversaries in May: billing manager Christina Greer (22 years), senior clerk Kelli Sparks (16 years), and attorney Regina Rabanal (14 years).

- Editor: H. Neal Wells IV

‌

HEW&S OFFICES: COVERING ALL OF CALIFORNIA

San Bernardino (909) 890-0403 (sbr@hmplc.com)
Orange County (949) 250-1216 (ana@hmplc.com)
Glendale (818) 265-0940 (cxr@hmplc.com)
Calabasas (818) 348-8366 (cls@hmplc.com)
San Diego (858) 753-1984 (sdo@hmplc.com)

www.hmplc.com

The above is for informational purposes only, and not intended to constitute legal advice.

‌