California as a state formally entered the second phase of the Governor’s four-phase plan to reopen the state’s economy on May 8, 2020, with local counties allowed to ease local restrictions less gradually. Phase 2 allows lower-risk businesses to reopen with social distancing guidelines. Phase 3 would then see the reopening of higher-risk businesses and venues, again with social distancing guidelines observed. Finally, in Phase 4, concerts, conventions, and sporting events with a live a crowd will be reopened. The majority of California’s 58 counties have already entered into Phase 2, though several Bay Area counties remained under strict shelter in place protocols, opting to take a more cautious approach than the state at large. Most recently, as of May 18, 2020, even those counties are now allowing curbside retail and manufacturers observing social distancing to conduct business.
The metrics that government officials look to in determining whether guidelines can be relaxed include the incidence of COVID cases, the incidence of hospitalizations due to COVID, the ratio of COVID hospitalizations to local hospital capacity, the prevalence of testing, the degree to which contract tracing is possible for new cases, and the available supply of PPE for all healthcare facilities.
As Californians start to slowly return to living their lives, there will be some changes that constitute a new normal, and workers’ compensation practice and procedure will be no exception. For the time being, the local Workers’ Compensation Appeals Boards have not fully opened, with necessary testimony still being taken telephonically. As has been the case in the past few months, every week promises to bring new announcements, and as we slowly move into Phase 2, we will keep our clients as up to date as possible as to how these rapid changes will affect their workers’ compensation claims handling.
ONE COVID PRESUMPTION BILL PASSES SENATE COMMITTEE, ANOTHER REJECTED
The Senate Labor, Public Employment, and Retirement Committee approved Senate Bill 1159 on May 14, 2020, providing legislative ratification to many of the terms set forth in the recent executive order signed by Governor Gavin Newsom. Senate Bill 1159 would create a rebuttable presumption of compensability for critical public and private sector employees who contract COVID-19 while employed in jobs necessary to slow the spread of the virus. Unlike the executive order, which expires in July, SB 1159 does not have a set expiry date. The bill will now head to the Senate Appropriations Committee. The bill’s language currently extends a presumption to “critical,” employees, but does not define that term with much clarity, indicating that such workers are those employed to combat the spread of COVID-19. While the language is clearly meant to cover doctors, nurses, and other frontline healthcare workers, and likely police officers enforcing shelter in place orders, it is not so clear that it does not apply to delivery drivers bringing food to sheltered individuals as part of the societal effort to combat the spread of COVID-19. The bill is currently still a work in progress, with the terms to be further ironed out, but for now, it is moving ahead.
The other bill that was being considered, Senate Bill 893, explicitly extended a rebuttable presumption to hospital employees providing direct patient care. The bill would have covered diseases, musculoskeletal injuries, and respiratory diseases, and not just COVID-19. The bill had been supported by the California Nurses Association, who pointed out that nurses deal with many of the same exposures as first responders who are entitled to various presumptions. The bill, however, did not garner widespread support and was ultimately rejected.
PERIOD FOR PUBLIC COMMENT CLOSES ON EMERGENCY QUALIFIED MEDICAL EVALUATOR REGULATIONS
On May 12, 2020, the DWC closed public comment on the proposed emergency regulations for qualified medical evaluators. One of the emergency regulations, 8 CCR 36.7, would allow a medical legal evaluator to serve documents electronically in a represented claim so long as there is written confirmation by the parties involved that documents can be served electronically.
The other emergency regulation, 8 CCR 46.2, would allow a medical legal evaluator to conduct certain evaluations via telemedicine. The regulation provides medical legal evaluators and parties with various options. The evaluator may reschedule calendared in-person evaluations to take place within 90 days after state and local shelter in place restrictions are lifted, may review records and interview the applicant prior to a full in-person evaluation after restrictions are lifted, or may conduct a complete medical-legal evaluation through telehealth under certain circumstances.
For telehealth evaluations to go forward a physical examination must not be necessary in the claim (and the evaluator must attest to as much), the injured worker must not be required to leave their home to participate, and there must be a medical issue in dispute as to AOE/COE, work restrictions, or termination of an indemnity benefit. Furthermore, the parties must agree in writing to the remote evaluation, though the regulation indicates that agreement cannot be “unreasonably denied.” If an evaluation is unreasonably denied, the WCAB has jurisdiction to resolve such disputes.
It should also be noted that the regulation allows QMEs to schedule evaluations further out than they had previously. Under ordinary circumstances an appointment must be scheduled within 60 days of the original appointment request, but 8 CCR 46.2 would extend that period to 90 days. Furthermore the regulation amends 8 CCR 31.3(e) to allow the party with the right to schedule an appointment with the QME to waive their right to a replacement panel if a QME is able to schedule within 120 days. Only if the QME cannot schedule within 120 days, can a replacement panel be sought.
NEW CASE BRIEFS AVAILABLE!
Two new case briefs are available this month on our website. Our case briefs can be found at the following link: www.mulfil.com/case-briefs/
The first, written by Leonie Milstein, an Associate Attorney out of our Los Angeles office discusses the recent case of Fraire v. California Department of Corrections, a Panel decision in which it was concluded that a conclusive presumption of total disability due to loss of sight under Labor Code 4662(a)(1) does not preclude the application of apportionment where multiple injuries contributed to the disability. It should be noted that there is at least one Panel decision that reaches the opposite conclusion. The article discusses both cases and the cases will be extremely important in those situations where Labor Code 4662 presumptions are applicable.
The second article, written by Nicolas Scibetta, Associate Attorney out of our Walnut Creek office, summarizes the recent panel decision of Suguey Moreno v. Kern County Superintendent of Schools, and serves as a primer on the defendant’s burden of proof in establishing nonindustrial causation of disability. In that case, a Judge had concluded that the report of a QME that found significant apportionment to nonindustrial causes (40% nonindustrial), was not substantial medical evidence and issued an unapportioned permanent and total award. The Board affirmed the Judge’s determination that the defense had failed to meet its burden of proof establishing nonindustrial causation of disability. The article sets forth the quality and quantity of evidence case law suggests is necessary if the apportionment finding of a QME is to be found valid. While additional discovery can be costly, running to trial with a report that is not substantial evidence can prove much costlier.