February is Black History month, a time to acknowledge the importance of Black history and focus our attention on the contributions of Black Americans in the United States. The observance is this month, in part, because it coincides with the birthday of Abraham Lincoln on February 12 and that of Frederick Douglass on February 14. Mr. Douglas once said, “If there is no struggle, there is no progress.” As we reflect on the struggles of the past, we encourage all to endure for our future.
OAL APPROVES DWC’S MEDICAL-LEGAL REGULATIONS
On February 3, 2023, the Department of Industrial Relations (DIR) announced that the Office of Administrative Law (OAL) approved the Division of Workers’ Compensation (DWC) regulations on medical-legal evaluations.
The Regulations are a permanent adoption of the emergency regulations which allow Qualified Medical Evaluations (QMEs) to be performed via telehealth and changes the rules regarding the scheduling of QME evaluations.
The updated regulations were effective as of February 2, 2023.
As noted by the DIR, the adoption and amendments of these regulations include, but are not limited to, the following:
CCR Section 31.3(e) has been amended to change the time frame for a party to schedule QME evaluations by an additional thirty (30) days. With the adoption of the amended regulation, if a party with the legal right to schedule a QME appointment is unable to obtain the appointment within ninety (90) days to one-hundred-twenty (120) days, either party may report the unavailability of the QME and obtain a replacement panel QME list pursuant to CCR Section 31.5.
CCR Section 34(b) has been amended to allow the parties to agree that an evaluation can occur at any office listed with the DWC Medical Director, rather than the physician’s address listed on the panel QME list.
CCR Section 34(e) has been adopted to allow a QME or Agreed Medical Evaluator (AME) who cancels an appointment to reschedule the appointment within sixty (60) days of the cancellation unless the parties agree beyond the sixty-day limit.
CCR Section 46.3 has been adopted and amended to allow medical-legal evaluations to be conducted via telehealth when the parties agree in writing that a physical examination is not necessary and the evaluation is being conducted to address AOE/COE (Arising Out of Employment/Course of Employment), a dispute regarding the termination of benefits or work restrictions.
DWC SUSPENDED 261 PROVIDERS FROM WC SYSTEM IN 2022
According to a recent WorkCompCentral article, the DWC suspended more providers in 2022 than in any year since 2017. According to information on its website, the DWC suspended 261 providers in 2022, which is more than five times the number of providers which were suspended in 2020 and 2021.
In 2016, California lawmakers passed AB 1244, which requires the DWC to suspend providers who are convicted of fraud, or who have lost their license, starting in 2017. Since then, the DWC has suspended 765 providers.
DWC Suspends 261 Providers in 2022
CASELAW UPDATE:
Panel Wars
In Daniel Hazen, v. Porterville Unified School District, PSI, administered by Keenan & Associates (2022 Cal. Wrk. Comp. P.D. LEXIS 173, 87 Cal. Comp. Cases 932), the Workers’ Compensation Appeals Board (WCAB) held that in order for a party to request a replacement panel pursuant to the Romero decision, the requesting party must obtain a new panel pursuant to the process outlined in LC Section 4062.2, by sending an objection pursuant to LC Section 4061 or 4062 before submitting its request for a replacement panel to the Medical Unit.
In Hazen, the Medical Unit issued a panel QME list before Mr. Hazen became represented. The evaluation with the selected physician from the panel did not go forward. After Mr. Hazen became represented, Defendants requested a replacement panel based on the Romero decision, using a Notice of Permanent Disability.
The matter proceeded to trial to adjudicate the validity of Defendants’ replacement panel QME request. The Workers’ Compensation Judge (WCJ) found that the Notice of Permanent Disability was not a valid objection pursuant to LC Section 4061 or LC Section 4062, and the replacement panel QME list was invalidated. Defendants filed a Petition for Removal, which was treated as a Petition for Reconsideration by the Appeals Board.
In its Opinion and Order Denying Petition for Reconsideration, the Appeals Board cited the Romero decision, noting that since Romero “had not attended and participated in an examination by the panel QME when she changed from being not represented by an attorney to being represented, she had not ‘received’ a comprehensive medical-legal evaluation pursuant to section 4062.1 and is, therefore, not precluded from requesting a new QME panel pursuant to section 4062.2.” (emphasis added.) Because Defendant did not issue an objection pursuant to LC Section 4061 or 4062 prior to submitting its request for a replacement panel, the Appeals Board held that the second QME panel was not validly obtained pursuant to LC Section 4062.2.
220627 HAZEN Daniel ADJ13462646 (ca.gov)
Supplemental Job Displacement Benefit Voucher
In Isabel Sallago, Applicant v. Cintas, Travelers Insurance Company, administered by Sedgwick Claims Management Services, Inc. (2022 Cal. Wrk. Comp. P.D. LEXIS 279), the Appeals Board held that Applicant was entitled to a Supplemental Job Displacement Benefit Voucher (hereinafter, Voucher) pursuant to LC Section 4658.7(b), even though she returned to work following her injury.
On October 25, 3013, Ms. Sallago sustained a right shoulder injury, resulting in a 20% permanent disability finding. She subsequently returned to work and was placed on modified duty. Defendant did not issue a Notice of Offer of Regular, Modified, or Alternative Work on DWC Form 10133.35.
The matter proceeded to trial on the issue of whether Ms. Sallago was entitled to a Voucher. Defendants argued that it should be deemed to have offered regular, modified, or alternative work under CCR Section 10133.31(c) because Ms. Sallago returned to work following her injury and was placed on modified duty.
In its Opinion and Order Granting Reconsideration, the Appeals Board noted that CCR Section 10133.31(c) deemed an employer to have offered regular work when the employee lost no time from work or has returned to the same job for the same employer. Here, Ms. Sallago missed several days of work following her injury, as well as several months of work following her right shoulder surgery. The Appeals Board reasoned that because CCR Section 10133.31(c) made no mention of modified or alternative work, there was insufficient evidence to support a finding that Ms. Sallago returned to her regular work following her injury. As such, the Appeals Board reserved the WCJ’s finding and held that Ms. Sallago was entitled to a Voucher.
California: Top 25 Noteworthy Panel Decisions (July through December 2022)
CAUTION: These panel decisions have not been designated “significant panel decisions” by the WCAB. Practitioners should use caution when citing to these decisions and should verify the history of the decisions as they are subject to appeal. Although panel decisions are citable authority, they are not binding precedent.
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 are available on our website at www.mulfil.com/bulletins.
