In a historic first, the U.S. Senate confirmed Judge Ketanji Brown Jackson to the Supreme Court, making her the first black woman to sit on our nation’s highest court since it was assembled in 1790. Judge Jackson will be the 116th justice to serve on the Supreme Court after she replaces Justice Stephen Breyer, who is retiring at the end of the court’s term. While work remains to realize the promise of our country, as Justice Jackson said upon accepting what she called the honor of a lifetime, “we have come a long way toward perfecting our union.” The legal profession will be richer for the future generations of lawyers she inspires.
DWC RE-ADOPTS REGULATION SECTION 36.7
Regulation 36.7, which allows for electronic service of medical-legal reports and supporting documents by medical-legal evaluators, has been re-adopted. As such, medical-legal evaluators may resume serving reports and supporting documents electronically. Regulation 36.7 previously expired on February 18, 2022. While Regulation 36.7 was not in effect, service of medical-legal reports and supporting documents was completed in accordance with Regulation 36.
WCAB ERRONEOUSLY FINDS APPLICANT’S PANEL REQUEST PREMATURE
In an unpublished decision, the Court of Appeals for the 5th District of California recently ruled that the Workers’ Compensation Appeals Board (WCAB) erred in finding that an injured worker’s request for a qualified medical evaluator panel was premature.
In April 2020, the Applicant, Mr. Rogelio Trigueros, filed a claim alleging injury to his upper extremities, against his employer, Gonzalez Agriculture Inc.
On May 4, 2020, the employer’s carrier served a delay letter from Missouri to Mr. Trigueros in California.
On May 20, 2020, Mr. Trigueros submitted a request for a chiropractic panel QME list (16 days after the delay letter was served).
Defendants subsequently challenged the timing of the request and the Workers’ Compensation Judge (WCJ) found that his panel request was timely.
Defendants then filed a petition for removal, arguing that WCJ erred in finding that Mr. Trigueros’ panel was valid, because he waited only 16 days from the mailing of the delay letter which issued from out of state, rather than adding an additional 10 days for service, per CCP Section 1013(a).
The WCAB deemed Defendant’s petition for removal a petition for reconsideration and found that Mr. Trigueros’ panel was invalid because he did not wait 20 days from the date of mailing of the delay letter before he requested the panel list.
The Court of Appeal noted that the WCAB’s own rules govern service of process.
Pursuant to WCAB Rule 106, when a document is served by mail, the time period for exercising a right or response shall be extended by five calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent of record being served is within California; and ten calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent being served is outside of California.
The court noted that the “place of address and the place of mailing” refers to the address of the party, agent or attorney being served and that “the location where any triggering mailing originates from is thus irrelevant.”
Here, the WCAB based its decision on the out-of-state location from where the claims administrator mailed the delay letter, rather than the address of Mr. Trigueros.
The Appeals Court found that pursuant to WCAB Rule 106(a)(1), the WCAB should have added only 5 days to the statutory 10 day waiting period pursuant to LC Section 4062.2 (for a total of 15 days) when determining the first day a party may validly obtain a panel QME list.
CWCI REPORTS DECREASE IN COVID-19 CLAIMS
The California Workers’ Compensation Institute (CWCI) recently reported that the dramatic increase in COVID-19 claims, which soared to an all-time high in January of this year, dropped by 90% in February.
According to WorkCompCentral, the CWCI said that the “new monthly tallies show that as the omicron variant spread at the end of last year and the beginning of this year, the COVID-19 claim count increased more than sixfold between November and December, then doubled from 21,55 [editor’s note, there appears to be a typo from the source in this figure] cases in December to 46,331 cases in January before plunging back down to 3,294 cases in February.”
Although the figures for these months will increase as new claims are reported, the CWCI projections show the same pattern, with increases in December and January, followed by a sharp decrease in February.
However, the CWCI’s most recent assessment shows that pandemic claims are volatile and unpredictable, as such claims increased from 34% of all claims filed in December, to 55.5% of all claims filed in January, before falling to just 10.1% of all claims filed in February.
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.