Catastrophic Injury:  How Bad Does It Really Need To Be?

by Donald R. Barthel (February 22, 2021)

Remember the "bad old days?” Having been in the industry for more than 30 years, I can understand why this question isn't entirely clear. There have been so many periods of time in California's workers' compensation history that were particularly frightening for employers.

The problematic period of time I reference is shortly after the adoption of the AMA Guides effective January 1, 2005. (Can it really have already been one-and-a-half decades?).

Our new permanent disability system was supposed to "promote consistency, uniformity, and objectivity." Much to our dismay, the applicants' bar and many physicians found their way around this objective via the infamous Guzman ruling from the 6th DCA. But even before that, they got a little "creative" and determined that many (most?) applicants, in addition to their traditional injuries, suffered from sleep dysfunction, sexual dysfunction, and/or psychiatric disorder.

FAQs on New COVID-19 Laws and Regulations

by Zane P. Uribarri (February 20, 2021)

The last six months have brought significant legislative changes to the California workers’ compensation law with the passage SB 1159, AB 685, and the issuance of the Cal-OSHA regulations regarding COVID-19 in the workplace.

After providing our clients with a number of online presentations and question/answer sessions, we have seen a plethora of questions which have very similar concerns. Here are some of the most frequently-asked questions and answers that have arisen during these sessions.

It’s worth noting that every situation is different, and the specific facts of each case will dictate the responses to some answers. That being said, this is a good starting point to gain information specifically related to how to handle COVID-19 issues in the workplace.

Clarifying Coverage for Temps Amid a Pandemic

by John P. Kamin (February 19, 2021)

In light of the global pandemic and recent changes in the law, it is now more important than ever for employers and insurers to clarify who exactly is intended to be an employee covered by workers’ compensation insurance policies.

The pandemic has forced most employers to revisit safety protocols for all workers on their jobsites, as the sneakily contagious coronavirus has managed to permeate just about every aspect of our society. With that in mind, it would be tremendously helpful for employers and carriers to use a 2019 published appellate court decision as a roadmap for specifying who is covered and who is excluded under their workers’ compensation policies.


B&B’s CIO Helps Craft Tech Upgrade Strategies for Law Firms

by John P. Kamin (February 12, 2021)

An executive at the Law Offices of Bradford & Barthel LLP helped the Legal Industry Business Council craft a list of seven strategies that could be of use to all law firms who are looking to improve their use of technology.

Craig Courter, chief operating officer of Katten, Muchin, Rosenman, LLP, is the chairman of the council and authored an article on seven key strategies that law firms can use to help make their firms run more efficiently. Eric Hunter, chief information officer of the Law Offices of Bradford & Barthel LLP, is a member of the council, and worked with other council members to help create the strategies during January 2020 work sessions.

The article was recently published in the Intellectual Property and Technology Law Journal’s February 2021 edition, and identifies seven key steps firms can use when deciding how to upgrade their technology – whether it be file management software, billing solutions, or website redesigns.

WCAB: Trials Should Proceed With Remote Testimony

by John P. Kamin (February 9, 2021)

Objections to remote witness testimony should not prevent workers’ compensation trials from proceeding forward, unless there is evidence as to why remote testimony would be problematic, the Workers’ Compensation Appeals Board ruled in a recent significant panel decision.

The Appeals Board issued a significant panel decision on Jan. 12 in the case of Limin Gao v. Chevron Corporation 86 Cal. Comp Cases, which addressed trials and objections to remote testimony.

In that case, the parties had an ongoing trial when the pandemic arrived in March 2020. The applicant had just testified on March 10, 2020, and the case was continued to June 9, 2020, as the defendant had intended to call multiple witnesses.

Because of the pandemic, the WCAB halted in-person trials as of March 16, 2020. When the next trial date rolled around, the applicant wanted to proceed with remote video testimony, while defendant insisted on the trial only going forward when in-person testimony could be heard.

Interpreter Fees: Market Rate vs. Fee Schedule

by Julie Insisoulath (February 1, 2021)

Workers’ compensation defendants regularly deal with disputes in regards to interpreter fees, particularly as to whether they are entitled to the market rate or the fee schedule. One would assume that since there is a fee schedule in place, an interpreter’s rate is not rebuttable - however, the California Code of Regulations seems to provide the interpreters with a loophole.

Per C.C.R. §9795.3:
  1. For an appeals board hearing, arbitration, or deposition: interpreter fees shall be billed and paid at the greater of the following (i) at the rate for one-half day or one full day as set forth in the Superior Court fee schedule for interpreters in the county where the service was provided, or (ii) at the market rate. The interpreter shall establish the market rate for the interpreter's services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services. Services over 8 hours shall be paid at the rate of one-eighth the full day rate for each hour of service over 8 hours.
  2. For all other events listed under subdivision (a), interpreter fees shall be billed and paid at the rate of $11.25 per quarter hour or portion thereof, with a minimum payment of two hours, or the market rate, whichever is greater. The interpreter shall establish the market rate for the interpreter's services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services.
(Emphasis added)

Despite that the regulations seems to allow for a higher rate for interpreters, there are many other arguments that can be made to minimize if not, completely eliminate, some of the interpreter’s billings.