Proposal to Reduce Decision Timeframe Fails in Assembly

by John P. Kamin (July 20, 2021)
The Assembly Insurance Committee failed to pass Senate Bill 335’s proposal to reduce the 90-day decision timeframe during its July 13 meeting.

The bill, which was introduced by Sen. Dan Cortese (D-San Jose), would have cut the decision timeframe from the current 90-day timeframe down to 45 days for most claims. The bill also called for first responders’ presumption claims to have a 30-day decision timeframe, which would have been a reduction from the current timeframe for 45 days.

Thankfully, the Assembly Insurance Committee was unwilling to approve these reductions, according to WorkCompCentral’s reporting on the committee’s mid-July meeting. Although the committee did not have enough votes to pass the bill - they had 7 votes, and needed 8 - they would not have approved the reductions even if they did have enough votes. Lawmakers said that they would have amended the bill to eliminate the language reducing the decision timeframes.

Effective Post-Termination Deposition Strategies

by Glen E. Young (July 13, 2021)
After taking more than 2,000 depositions over 25 years, I have realized that the essential questions and strategy are normally not employed until it is too late. Many applicant’s attorneys refuse to allow a second deposition, excluding those who are just in it for the LC 5710 fees.

My first several years taking depositions, and as an astute student of the importance of thoroughness, I would make sure to get all of the applicant’s prior addresses, employment, spouses, kids, grandchildren and hobbies. Between that and the admonition, I would have very little time to get into the essentials. Although these questions may be helpful for sub rosa and apportionment, it is merely using a screwdriver when a hammer should be employed.

The purpose if the deposition is much more than a fact-finding mission. It is really a “clue” to your applicant’s attorney and to the PQME who will read the transcript, of the defenses of the claim and the embarrassing history which may be present in the personnel files.

What the EEOC Says About Vaccination Mandates in the Workplace

by Karen P. Mejia (July 12, 2021)
With Governor Newsom’s grand reopening of the state of California on June 15, 2021, new questions are being raised for the returning workforce, with the most notable question being whether employers will be allowed to mandate that their employees take one of the COVID-19 vaccines.

But what exactly makes the COVID-19 vaccines any different than other vaccines that are already being required by schools and healthcare employers? It is not unique for healthcare workers to be required to be vaccinated against most infectious diseases for the protection of patients and workers alike.

However, the COVID-19 vaccines are currently under Emergency Use Authorization (EUA) only. This means that the Food and Drug Administration (FDA) has authorized the vaccine for emergency use in order to facilitate its availability while studies continue to be conducted on its safety and effectiveness. Under normal circumstances the FDA would require substantial evidence of the safety and effectiveness of the vaccine for approval.

Avoiding Additional QME Panels

by Michael P. Burns (June 4, 2021)
One of the most common complaints that arise in the life of a worker’s compensation case, from a defense perspective, is applicants requesting additional QME panels.

Additional panels increase permanent disability exposure and escalate litigation costs. Also, there is a general suspicion that applicants attorneys are going on a unwarranted fishing expedition when requesting additional QME panels, particularly when the alleged injuries are described as “skin and contents.”

There are important considerations when evaluating whether to dispute a request for an additional panel. Ordinarily, where defendant has accepted liability for an injury, the compensability of an additional body part is a medical determination to be made by the primary treating physician subject to objection under Labor Code § 4062. (See Lab. Code 1, § 4060(a).)

A Review of the WCAB's Response to the COVID-19 Pandemic and a Preview of Things to Come

by Louis A. Larres (June 3, 2021)
Unprecedented times call for unprecedented action. Two weeks after California Governor Gavin Newsom issued a state of emergency as a result of the COVID-19 pandemic, the Workers’ Compensation Appeals Board issued its first of seven emergency en banc decisions. On March 16, 2020, the Division of Workers’ Compensation (DWC) issued Newsline Release No. 2020-18 providing that the DWC’s district offices were closed for filings from March 17 through April 3, 2020. All filing deadlines were extended to the next day when the district offices reopened.

In its first COVID Emergency Response Decision issued on March 18, 2020, the WCAB, pursuant to its authority per WCAB Rule 10370, temporarily suspended specific WCAB Rules of Practice and Procedure contained in Title 8 of the California Code of Regulations. (Cal. Code Regs., tit. 8, § 10370.) The suspension was applicable to all district offices in the State and applied to the many rules governing dismissal of an application or lien claim for failure to appear. 1

It also suspended operation of the timeframes in which workers’ compensation judges and arbitrators have to file reports in response to petitions for reconsideration or removal, giving them unlimited time to do so. 2

Reopening: What Does it Mean for Comp?

by John P. Kamin (May 28, 2021)
After a year of pandemic-related shutdowns, California’s gradual reopening has been carrying gargantuan implications for the state’s workers’ compensation stakeholders.

The arrival of 2021 has brought vaccinations and reduced COVID-19 rates, which has Californians excited to return to some semblance of pre-pandemic life as Gov. Gavin Newsom recently announced a statewide reopening set for June 15.

For instance, at the family-owned diner that’s been a local favorite for the better part of 30 years, the family matriarch did a fist pump as she told me that she was excited to reopen her dining room after 15 months of doing take-out only. At another local diner, I noticed that the owner has brought back all of his “regulars” for indoor and outdoor dining, including his loyal bus boy who has been refilling drinks and bussing tables there for decades.