On May 6 Gov. Newsom issued a wide reaching executive order providing a presumption of compensability for employees diagnosed with Covid 19. Arguably, said order was not constitutional as it was usurping the legislative process and power.
However, the California legislature has taken up and written a nearly identical proposed bill under SB-1159, which will be heard in committee on July 29, 2020. The bill will codify the governor's executive order providing a presumption of compensability for workers who are diagnosed with Covid 19, under a specific set of criteria as outlined in the Executive Order.
If you wish to discuss the Executive Order and pending proposed bill, or have further questions with regard to the current healthcare Crisis as it pertains to defending your workers compensation claims, please feel free to contact us directly by phone 310-325-0420, or email at firstname.lastname@example.org
DWC and WCAB Continue to Expand Hearing Schedule at the District Offices
The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to improve their operations during the COVID-19 pandemic. The following changes are effective June 8:
Updated Hearing Procedures Starting June 8:
DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences, case-in-chief trials and expedited hearings telephonically via the individually assigned judges’ conference lines as announced in DWC’s Newslines issued on April 3 and April 28.
Beginning June 8, DWC will hear up to 3 lien conferences per judge per calendar session via the individually assigned judges’ conference lines. Lien conferences in excess of that number will be continued.
All parties scheduled for a hearing should call the conference line for the judge in front of whom the case is set, at the designated time listed on the hearing notice. When prompted, the parties should enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call.
All lien trials will be continued during this time. District offices will not hold in-person hearings.
Continuing Filing Procedures:
DWC will not accept walk-in filings, walk-through documents, or in-person requests at this time. DWC will only accept electronic filing via EAMS and JET File, and paper filing by U.S. mail.
DWC will accept limited email filings pursuant to WCAB’s en banc dated April 6 and its Newsline issued on April 23. Email filings are limited to documents that are subject to a statute of limitations that cannot otherwise be efiled, JET filed, or filed by U.S. mail.
DWC has posted additional information to assist parties with filing settlement documents in EAMS. Refer to the district office page for email and other contact information.
DWC will continue to accept an electronic signature on any settlement documents, applications, pleadings, petitions or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules.
Injured workers who are unable to file utilizing the available options or need assistance may contact DWC’s call center at (909) 383-4522.
The WCAB Commissioners' office is closed to the public for in-person inquiries and requests until further notice. The Commissioners and staff are working remotely during the closure.
Release Number: 2020-29
April 3, 2020DWC and WCAB Announce Updated Hearing and Filing Procedures
The Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) are announcing an update to the modified calendar and filing procedures announced on March 16, 2020. This update to the procedures continues to prioritize the health and safety of staff and the public to help prevent the spread of COVID-19.
The updated hearing and filing procedures are detailed below:
Hearing Procedures April 6 through April 10
Happy New Year!!
With the New year comes new Regulations, revamped and renumbered "old" Regulations and some repealed regulations.
For a complete text of all new, amended, renumbered or repealed regulations, just click here:
The California Division of Workers’ Compensation (DWC) has announced an increase in the minimum and maximum temporary total disability (TTD) rates. The increase will go into effect on January 1, 2020, and see the minimum TTD rate increase from $187.71 to $194.91 per week, and the maximum TTD rate increase from $1,251.38 to $1,299.43 per week.
The Department of Industrial relations notes that:
“Labor Code section 4453(a) (10) requires the rate for TTD be increased by an amount equal to percentage increase in the State Average Weekly Wage (SAWW) as compared to the prior year. The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2019, the SAWW increased from $1,276 to $1,325 – an increase of 3.84013 percent.”
Workers with a date of injury on or after January 1, 2003 who are receiving permanent total disability (PTD) or life pension (LP) benefits are entitled to have their rate adjusted based on the SAWW under Labor Code section 4659(c).
■ Kimberly Allen v. Antelope Valley Union High School District, 2019 Cal. Wrk. Comp. P.D. LEXIS 66
Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB rescinded WCJ’s finding that applicant was entitled to increased permanent disability for her psychiatric injury, and concluded that applicant was barred under Labor Code § 4660.1(c)(1) from receiving additional permanent disability for that injury, when WCAB reasoned that applicant’s psychiatric injury was not directly caused by events of her employment but rather was compensable consequence of her multiple industrial orthopedic injuries, and, consequently, pursuant to Labor Code § 4660.1(c)(2)(A), applicant’s permanent disability could only be increased for psychiatric impairment if injury resulted from either being victim of violent act or from direct exposure to significant violent act or catastrophic injury, and WCAB found that here applicant’s injuries, which were incurred in slip and fall accident during her employment as high school receptionist, were not sufficiently extreme or intense so as to rise to level of “violent act” where there was no loss of consciousness or immediate need for medical treatment and found no merit to applicant’s assertion that all head injuries, regardless of how mild, constitute violent injuries. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[a], [b], [f], 4.69, [a], 8.02[c][ii], , 32.02[a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[b][i][ii], 7.06, Ch. 10, § 10.06[a], [b][i].]
In Rodriguez v. Rubio's Restaurants, 2019 Cal. Wrk. Comp. P.D. LEXIS 231, the WCAB held that an applicant was not entitled to temporary disability (TD) benefits when a defendant offered her modified duty with her work restrictions after she resigned from employment. The applicant resigned Oct. 6, 2017, and received an offer of work dated Oct. 13, 2017. She never responded to the offer. The defendant paid TD benefits from Oct. 25, 2017, to May 1, 2018, but disputed liability for another period of TD starting Oct. 11, 2018. The WCAB explained that after an offer of modified duty, an applicant is no longer entitled to TD benefits, even if he or she does not accept the modified duty. It concluded that the defendant's offer of Oct. 13, 2017, precluded benefits from Oct. 11, 2018, and continuing, and that the defendant's payment of benefits from Oct. 25, 2017, to May 1, 2018, did not create any additional obligation to continue to offer modified duty
Deciding whether a person suffered a catastrophic injury depends on a host of factors including the gravity of the worker’s condition, and not just the circumstances of the industrial accident itself, the WCAB said in the en banc decision Kris Wilson v. California Department of Forestry and Fire Protection.
The WCAB’s decision said it is up to judges to decide whether an injury is catastrophic based on the facts of the case. The board listed factors that “the trier of fact may consider in determining whether an injury may be deemed catastrophic,” that include:
The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
The ultimate outcome when the employee’s physical injury is permanent and stationary.
The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn or severe head injury.
Whether the physical injury is an incurable and progressive disease.
READ THE ENTIRE OPINION HERE.
Step aside, opioids. Non-steroidal anti-inflammatories are now the most common therapeutic drug group prescribed to injured workers in the state, according a new report by the California Workers’ Compensation Institute.
CWCI said efforts to curb inappropriate use of opioids, such as utilization review, treatment guidelines and restrictions by payers, are having a measurable impact on usage rates. Opioids made up 30.5% of all prescriptions filled in the California workers’ compensation system 10 years ago, but that fell, to 18%, in the first half of 2018. Opioids made up 20.2% of workers’ comp prescriptions in 2017.
By comparison, NSAIDs grew, to 31.7%, of drugs dispensed to injured workers in 2018, compared to 21.4% in 2009.
Similarly, CWCI chronicled a dramatic increase in the usage of anticonvulsants, which also are also an alternative to opioids for the treatment of pain. Anticonvulsants made up 4.1% to 5.6% of workers’ comp prescriptions from 2009 to 2014, but increased steadily, to 9.7% in 2018, as opioid use declined.
Opioids were the most costly, as well as the most prevalent drug group used in workers’ comp a decade ago. CWCI said opioids made up 23.5% of the drug spend in 2009 but made up only 13.8% of the drug spend last year.
Dermatological agents and anticonvulsants have stepped in front of of opioids in terms of the share of spending. Dermatological agents represented 17.6% of the drug spend in 2018, up from 10.1% in 2009. Anticonvulsants represented 15.2% of the drug spend in 2009, up from 4.8% in 2009, CWCI said.
Those dermatological medications include high-cost topical creams and patches for pain management. While the number of dermatological prescriptions increased only moderately, from 5% of all prescriptions in 2009 to 5.6% in 2018, the share of total drug spend increased, from 10.1% to 17.6% during that period.
CWCI said that indicates an increase in the average amount paid for dermatological prescriptions, “which in 2017 surpassed opioids as the most costly drug group in California workers' compensation.”
The shift away from opioids to alternative drugs brings its own set of problems.
“Highly addictive benzodiazepines, such as Valium, Xanax, Ativan, Librium and Klonopin, are a prime example of this,” CWC said. “Originally prescribed as tranquilizers, benzodiazepines are found in multiple therapeutic drug groups, including anticonvulsants, antianxiety drugs and hypnotics/sedatives.”
The report notes that the Journal of the American Medical Association released a report last month that showed benzodiazepines are increasingly prescribed by physicians for a wide range of conditions, including back and chronic pain, anxiety and insomnia. Often they are combined with other drugs and are implicated in a growing number of overdose deaths.
The trend away from opioids to anticonvulsants is proving expensive for workers’ compensation insurers. The average cost of anticonvulsant prescriptions increased, from $102 in 2016 to $125 in 2018, a 22.5% price hike. The vast majority of the prescriptions are for brand-name drugs, CWCI said.
The average price of opioids, by contrast, decreased, from $70 in 2016 to $61 last year.
Hefley Law, APC