BRIEF LEGAL UPDATE

EMERGENCY REGULATIONS ADOPTED FOR MEDICAL-LEGAL REPORTING RE: COVID-19

The DWC announced installment of emergency regulations regarding medical-legal reporting in response to COVID-19. The two (2) temporary regulations are effective from May 14, 2020 to January 12, 2021 with two possible 150-day extensions depending upon further Executive Orders from Gov. Newsom.

Regulation 46.2 "QME Emergency Regulations in Response to COVID-19" :

a) An QME/AME may reset a currently scheduled in-person med-legal exam to take place within 90 days after stay-at-home orders are lifted;

Can electronically issue a record review report as well as conduct a telephonic or video interview of the applicant; and

Can conduct the actual med-legal exam either in-person or through "telehealth" (video-conferencing) provided certain conditions are met (i.e. need exam to resolve an issue, worker can stay home, all parties agree, and video exam is medically reasonable).

b) Extends the time period for scheduling an initial QME exam from 60 days to 90 days, and allows the party with the right to schedule the exam to waive the 90 days and set the exam within 120 days.

c) Extends all time frames to prepare and serve medical-legal evaluation reports by 15 days.

d) After an initial med-legal exam, any subsequent exam can be held at any official office of the QME provided within reasonable distance to the injured worker and if agreeable by the parties.

Regulation 36.7 " Electronic Service Emergency Regulation in Response to COVID-19 :

a) QME and AME reports may be served electronically where agreed upon by the parties, but not allowed on any unrepresented party or injured worker; and

b) - d) Addresses the required procedures in serving the reports electronically, including replacing Form 122 Service Declaration with an Affidavit of Proof of Electronic Service.

[COMMENT: Certainly reasonable to temporarily suspend some procedures and extend time frames in light of COVID-19. Also more cost-effective to allow QMEs some leeway at this time rather than incurring the cost and delays of parties filing time frame objections and requests for replacement panels.]

WORK COMP IN THE NEWS

HIKIDA CASE LIMITED BY THE 6TH DISTRICT COURT OF APPEAL

In Hikida v. WCAB (2017), the applicant had a failed carpal tunnel surgery resulting in complex regional pain disorder. The 2nd Court of Appeal held because the employer was 100% liable for the medical treatment, they were also 100% responsible from any resulting PD without apportionment. Post- Hikida there has been no dispute that medical treatment cannot be apportioned, but cases have been split on the PD apportionment aspect based upon differing case facts.

In County of Santa Clara v. WCAB (Justice) (2020), the applicant had right knee total replacement surgery as a compensable consequence of a left knee injury. The AME apportioned 50% of the PD to pre-existing arthritis and 50% to the industrial injury. The WCAB stated the AME's apportionment was legal but for the Hikida decision, and was therefore disallowed.

The 6th Court of Appeal overturned the Board because "there is no case or statute that stands for the principle that PD that follows medical treatment is not subject to apportionment under Labor Code 4663 or 4664". Instead, the court clarified that Hikida may be correct to the limited extent that PD resulting solely from a failed medical treatment procedure may not be subject to apportionment; however, any PD (even post-surgical) that stems in part from pre-existing factors is still subject to legal apportionment.

[COMMENT: A significant case that is consistent with the Labor Code and recent cases like City of Petaluma (Lindh)( 2018) where vision loss was apportioned between an asymptomatic eye disease and the work injury.]

APP-BASED DRIVER INITIATIVE QUALIFIES FOR NOV. BALLOT

In an attempt to override AB-5, the Lyft/Uber/Door Dash initiative to allow app-based drivers to be independent contractors has qualified for the November 2020 ballot.

Basically the initiative allows drivers to be independent contractors provided they can set their own hours, accept and decline specific jobs, and allowed to have concurrent employment. The contracting companies would be required to provide various benefits such as subsidized healthcare, guarantee minimum wages, provide on-job accident insurance, pay vehicle costs, provide background checks and driver training.

[ COMMENT: The measure could be pulled from the ballot, which would depend upon the results of already pending AB-5 related bills in the California legislature.]

LIEN CONFERENCES ARE BACK

The DWC announced that starting June 8th the WCAB will hear lien conferences (3 cases per judge) using the same telephonic approach as other hearings.

There is obviously a large backlog of lien cases, but unknown as to which three (3) cases will be selected to be heard on each lien calendar for each judge.

Lien trials are still being continued until further notice.

ADDITIONAL BODY PART NUMBER

The DWC announced an addition to its' body part codes list: "900 COVID-19". The DWC has updated its' forms (C&R, Stip. Award, etc.) to include the 900 number in the body part list.

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