Lawmakers Send Rebuttable Presumption Bill to Gov. Newsom’s Desk

by John P. Kamin, Zane P. Uribarri and Patrick C. Gorman (September 2, 2020)

Lawmakers tweaked and made last-minute changes before sending proposed legislation to Gov. Gavin Newsom’s desk that would create a pair of rebuttable presumptions that COVID-19 is industrial for different classes of workers.

Members of the General Assembly and state Senate eventually sent Senate Bill 1159 to the governor’s desk for approval on Monday, Aug. 31, which was the last day of the legislative session.

Newsom has until Sept. 30 to approve or veto the bill, and many expect that he will simply approve it. Technically, Newsom could veto it or request changes to the bill – but requesting changes rarely happens with legislation in this particular situation, and it seems he is unlikely to veto it.

The bill was classified as an “urgency statute,” which means that it takes effect immediately, the minute the governor signs it.

So what does the bill say?

Holy cow! Are Temp Job Assignments To Religious Employers Unconstitutional?

by Donald R. Barthel (August 31, 2020)

You've been there: the injured employee has temporary work restrictions that the employer cannot accommodate. What are your options?

One great choice is to assign the employee to a temporary job with a third party, such as a charity. This can cut off the temporary gravy train and keep the employee from sitting around the house with nothing better to do than to become deconditioned. Lounging at home is a terrible form of rehabilitation. Temporary work with a charity can help the employee feel good about themselves and doesn't hurt the employer's reputation in the community!

Some charity organizations have religious underpinnings. The Salvation Army is an excellent example. Indeed, the Army's mission statement describes itself as "an evangelical part of the Universal Christian Church." Can a charity's religious connections be used by an employee as an excuse to not accept the proposed modified work?

These issues were addressed in Bounthon v. Safe Streets USA, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 127, in which the WCJ explored whether defendant's offer of modified work at the Salvation Army violated the employee's rights and freedoms under the U.S. Constitution, specifically the doctrines of freedom of association, and freedom of religion. The court also addressed was whether the modified work assignment qualified as slavery and involuntary servitude in violation of the 13th Amendment.

The employee's arguments in Bounthon were not well received, as may well have been expected. First, the WCAB has no jurisdiction over constitutional issues. That fact notwithstanding, the Board noted that the employee failed to offer evidence at trial about his religious beliefs or how they were violated. It also rejected his argument that the work was a form of modern-day slavery.

The Trials & Tribulations of Subpoenas

by Donald R. Barthel (August 18, 2020)

Every adjuster has been there. You're sitting at your claims desk (or, in the era of Corona, on your couch wearing your bunny slippers) when you receive a subpoena for your file. Must you respond? How should you respond? What types of documents must you release? What can you keep without divulging?

You can object to a subpoena by arguing that the:
  1. subpoena has not been issued correctly according to the law (technical grounds)
  2. subpoena is an abuse of process or oppressive (general objections), and/or
  3. requested documents cannot be disclosed because of special rules that apply to the evidence (privilege)

While each of these arguments can only be fully described in a treatise (law school usually includes an entire semester dedicated to evidence!), we'll focus on the attorney-client privilege today.

The Return of Sports Amid a Pandemic

by Theodore M. Wachtel (August 17, 2020)

Play ball! Professional sports is back! Even though we are still very much in the COVID-19 pandemic, almost all of the professional sports leagues, both in the United States and around the world, have either resumed play or are making plans to do so.

I must admit that before the pandemic, I was one of those people who railed against the exorbitant dollars paid to professional athletes. However, when play in professional sports leagues was either interrupted, delayed in starting or scrapped altogether, I began to realize the significant role professional sports plays in our society.

First of all, for those who enjoy it, watching professional sports, even on TV, can be relaxing. Although I watch sports much less now than I did when I was a kid, when the PGA Tour started holding tournaments again a few weeks ago, even I found myself on a Saturday or Sunday afternoon watching and letting my mind just relax.

Second of all, I did not realize the number of people who rely on professional sports for their livelihoods. I am not talking here about the players and themselves but, rather, the multitude of people, both inside and outside the stadiums, who rely on professional sports for their livelihoods. In addition, professional sports generates millions of dollars every year for charity in the communities in which these events are held.

WCAB Explains that SIBTF PD Should Be Added, Not Combined

by Michael Peabody (August 4, 2020)

The Workers’ Compensation Appeals Board recently issued an en banc decision in June 2020 clarifying that prior and subsequent injuries should be “added” and not “combined” to determine whether the Subsequent Injuries Benefit Trust Fund (SIBTF) should be involved.

The title of the WCAB’s en banc decision is Richard Todd. Subsequent Injuries Benefit Trust Fund (6-23-2020, ADJ7475146).

The SIBTF, which is established per Labor Code §4751, is designed to encourage employers to hire people with disabilities. The new employer is only responsible for that portion of the disability caused by the employment, not for the old injuries the person may have suffered to the same or related body parts.

To understand how this works, consider a hypothetical applicant who was earning the “maximum” weekly wage that yields a permanent disability rate of $290.00 per week under the current code. If this applicant begins work with a pre-existing permanent disability of 35%, or $48,140, and then sustains more injury to the same or a related body part that brings the value to 70%, this isn’t just another $48,140, or $96,280.

Keep It Simple When Rating Heart Conditions With the AMA Guides

by Tim Mussack (July 31, 2020)

With more and more applicants pleading internal issues, it’s important for defendants to understand how to properly rate impairment under the AMA Guides.

That starts with understanding AMA Guides Chapters 3 and 4, which address the cardiovascular system and disorders of the heart. To be more specific, Chapter 3 is titled, “The Cardiovascular System: Heart and Aorta,” and Chapter 4 is titled, “The Cardiovascular System: Systemic and Pulmonary Arteries.”

Both chapters address the functional flow of blood to, through, and from the heart. For most cases, only one table from the cardiovascular system will be needed to evaluate the heart.

In fact, the only heart condition that requires multiple separate impairments of the heart to be combined is arrhythmia, which is discussed on page 56 of the AMA Guides.