February is Black History month, a time to acknowledge the importance of black history and focus our attention on the contributions of African Americans in the United States. In Furman v. Georgia (1972), Supreme Court Justice Thurgood Marshall, the first African American justice appointed to the US Supreme Court, wrote “In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.” As we reflect on our history, we encourage all to appreciate the humanity in each of us and to treat others with dignity and respect.
DWC ANNOUNCES EMERGENCY MEDICAL-LEGAL REGULATIONS
On January 19, 2022, the Division of Workers’ Compensation (DWC) announced its emergency regulations for Medical-Legal Evaluations effective as of January 18, 2022, which will expire on July 19, 2022, with two possible 90-day extensions (in accordance with Government Code Section 11346.1(h).
Per Title 8, California Code of Regulations (CCR) Section 46.3, medical-legal evaluations may be performed via telemedicine using electronic means, by creating a virtual meeting between the physician and injured worker. The evaluation shall be performed via telehealth when a physical examination is not necessary and the following conditions are met: there is a dispute regarding AOE/COE, termination of benefits, or work restrictions; there is an agreement to the telehealth evaluation by all parties; the telehealth evaluation is consistent with appropriate and ethical medical practices and the medical-legal evaluator attests in writing that the evaluation does not require an in-person physical examination.
DWC PROPOSES AMENDMENTS TO QME REGULATIONS
On February 9, 2022, the DWC posted proposed amendments to QME regulations to its online forum for review and comment by the public.
The draft regulations of Title 8 CCR Section 31.3 include the following: extension of time to schedule a medical legal evaluation by 30 days (to 120 days), clarifies that the timeframe for scheduling an evaluation is for both initial appointments and subsequent evaluations, updates to allow for electronic service, allows parties to agree that an initial evaluation can occur at any office listed with the medical director, deletes references to Agreed Panel QME, allows the AME or QME to reschedule an evaluation within 60 days of the date of cancellation unless the parties agree to an appointment beyond 60 days, allows telehealth medical-legal evaluations in certain instances, provides a definition of telehealth evaluations and identification of office location when remote health evaluations are conducted.
We should expect the DWC to announce that the prior emergency regulation regarding the 120-day QME scheduling requirement remains in effect. However, the 60–90-day scheduling requirement per CCR Section 31.3 currently controls. The question is, for how long?
WCAB ASKS COURT OF APPEALS TO PUBLISH DECISION ALLOWING FEES FOR MISSED APPEARANCES
In California Correctional Peace Officers Association Benefit Trust Fund v. Workers’ Compensation Appeals Board (2022), the 3rd District Court of Appeal determined that the Department of Industrial Relations (DIR) and the Workers’ Compensation Appeals Board (WCAB) are not required to notify parties that a hearing is to be held remotely during the COVID-19 pandemic. The Appeals Court also said that withdrawing a lien did not excuse failure to appear. In its unpublished decision, the Appeals Court said “[w]e find there was adequate notice of the one hearing in question, [and] withdrawal of the lien did not deprive WCAB of jurisdiction to determine the petition for costs and sanctions …”
In response, the WCAB wrote to the Appeals Court with a request that the decision be published due to its importance in the workers’ compensation community. The WCAB noted that “the court’s decision will provide needed clarification that publication of Newsline notices announcing changes in the method of appearance at workers’ compensation proceedings during the COVID-19 pandemic satisfy the due process right to notice of those changes …Newsline notices are an essential part of providing all members of the workers’ compensation legal community published notices of changes in the method of appearance at workers’ compensation hearings – changes that have been and will likely continue to be made due to the current COVID-19 pandemic … In addition, the court’s decision clarifies that the WCAB is not deprived of jurisdiction over pending claims for sanctions arising out of a lien proceeding when the lien is withdrawn,” the Board said.
This issue is significant, as the WCAB may issue attorney’s fees and sanctions for missed appearances, so be sure to calendar accordingly!
We strongly encourage everyone to sign up (see link below) for the WCAB Newsline Subscription to ensure that you stay up to date on any changes related to court appearances and other announcements.
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.