WCAB CLARIFIES DEFINITION OF “CATASTROPHIC” FOR SECONDARY PSYCHOLOGICAL PERMANENT DISABILITY

by John P. Kamin (July 17, 2019)

A recent en banc decision from the Workers’ Compensation Appeals Board clarified what types of facts are needed to establish a “catastrophic” injury that allows an applicant to obtain psychological permanent disability emanating from physical trauma.

The WCAB’s en banc decision in Kris Wilson v. State of CA Cal Fire Fund awarded a firefighter additional psychological permanent disability (PD). The decision turned on whether the firefighter was entitled to additional PD due to the psychological component of the claim even though it occurred as a secondary result of his physical injuries.

The disputed issue of psychological PD benefits hinged on a statute amended by Senate Bill 863 which, for dates of injury on or after 1/1/13, bars psychological PD that arises as a consequence of a physical injury. In order for workers to get PD for a psychological injury that resulted from a physical injury, they need to prove that it is “catastrophic” or the result of a “violent act.”

California's Workers' Compensation Alternative Dispute Resolution System Offers Key Advantages

by Michael D. Peabody (June 21, 2019)

When the California Legislature first established a workers' compensation system in 1913, it was designed to mandate insurance to rapidly provide desperately needed medical treatment and wage loss mitigation to injured workers. In return, injured workers would not be able to sue in civil court and receive massive verdicts that could bankrupt businesses or receive punitive damages or "pain and suffering" beyond the scope of the medical findings.

There were three prongs of the Safety Act of 1913, also known as the Boynton Act. First, it provided compensation to injured workers. Secondly, it required employers to purchase insurance and established a state insurance company, known as the State Compensation Insurance Fund, in case employers could not acquire other insurance coverage. Thirdly, it gave the state power to make and enforce safety rules and regulations, to prescribe safety devices to be used by employees, and to require accidents to be reported.

In other words, the original workers' compensation program provided an "alternative dispute resolution" program to address the particular needs of workplace injuries. The Boynton act included specific provisions for total temporary disability, medical benefits, permanent disability, and death benefits. It was an exclusive remedy, with minimal exceptions for cases involving gross negligence and willful misconduct.

Does Great Sub Rosa Need to Be Disclosed Prior to Depos?

by Dana F. Aoudi (June 20, 2019)
Although applicant’s attorneys may be entitled to discover sub rosa video that could poke holes in an applicant’s story, defendants need not provide the films prior to the deposition according to a 1989 panel decision.

Depositions are a very beneficial discovery tool used to dig deeper into the facts of the claim and afford defendants an opportunity to learn the strengths and weaknesses of the opposing side.

Although it is not taking place before a judge or in a courtroom, the deposition is still a legal proceeding, regardless of how informal a deposition may seem. After all, the applicant is still giving their testimony under oath during the deposition.

Telecommuters and the Home as a “Second Workplace”

by Michael P. Burns (June 10, 2019)

The cost of living in California has resulted in many employees choosing to move to remote parts of the state, but retaining their local jobs.

Telecommuting is also a growing trend across the country. According to a 2017 study, 20-25% of the U.S. workforce telecommutes at least part-time. Since 2005, there has been a 115% increase in regular remote work arrangements among employed professionals.

Working from home presents challenges for workers' compensation insurers. When the home becomes a workplace, what injuries are covered on an industrial basis? First, let’s examine the commute. Generally, injuries sustained commuting to and from the workplace are not compensable. But what happens when the home becomes a workplace?

Employees or Contractors? Gig Economy Workers’ Status Headlines Newsom’s First Legislative Session

by John P. Kamin (April 26, 2019)

The first few months of the 2019 legislative session opened with bills that would expand the definition of “employees” to include Uber and Lyft drivers, attempt to nullify utilization review, make nonindustrial apportionment more difficult to obtain, and investigate the large number of Independent Medical Review disputes.

Each and every spring, Californians can count on warmer weather, the return of baseball, and the revival of long-simmering political fights in Sacramento at the start of the legislative session. This year, our lawmakers have not disappointed us, so grab your popcorn because it’s going to be a long legislative session in the state capital.

Assembly Bill 5 will be the bill that will undoubtedly get the most attention because it’s a question that everyone can relate to – should your Uber or Lyft driver, or Postmates delivery person be an employee or an independent contractor? In other words, should the state force these massive “gig economy” businesses to deem their labor force to be “employees,” which would require workers’ compensation coverage and other benefits traditionally afforded to employees?

Settlement Alternatives for Claims Involving Medicare Beneficiaries

by Zane P. Uribarri (March 19, 2019)

What are your options when an Medicare set-aside (MSA) has derailed your settlement discussions or, complicated resolution of a claim with a Medicare beneficiary?

Concerns about protecting Medicare’s interests come into play when settling future medical care in workers’ compensation claims where the applicant is either a current Medicare beneficiary or has a reasonable expectation of becoming a beneficiary within 30 months. Typically, this type of settlement will require a carrier to obtain an MSA, which is then self-administered by the applicant. These MSAs require the applicant to administer their own medical treatment and provide an accounting to CMS.

Once the future medical care in the workers’ compensation claim has settled, Medicare will require the applicant to show they have exhausted their settlement funds before covering any treatment related to industrial body parts- and insurance carriers are not necessarily protected from Medicare seeking reimbursement for covered treatment. But what are the options for settling a claim with an applicant who is also a Medicare beneficiary?