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GREENER PASTURES

GREENER PASTURES

It’s been a year since the governor put in place stay-at-home orders, and it is breathtaking to look back at the drastic transformation our society went through in a single year in order to endure and put in place strategies to prevail over the coronavirus. We started off optimistically enough as people learned to bake sourdough bread and tried to resume learning another language or guitar. As the pandemic stretched on, we dealt with drastic upheaval in our professional and personal routines, as well as the routines of our family members, and the phrase “you’re muted” entered the general lexicon. While many of us suffered tragic losses to this virus, as a society we have survived. By many metrics there is some room for very cautious optimism, with more people getting vaccinated and infection rates down after a brutal winter surge. While March Madness and St. Patrick’s Day celebrations are still likely to be more subdued affairs than baseline, they may be decidedly cheerier than they were last year. So as we continue on, with a year now passed since we took action to meet the challenge of this pandemic, I’ll leave you with a reasonably suitable Irish saying: “As you slide down the bannister of life, may the splinters never point in the wrong direction.”

DWC EXTENDS EMERGENCY REGULATIONS FOR MEDICAL-LEGAL REPORTING THROUGH OCTOBER 2021
The Division of Workers’ Compensation has announced that the emergency regulations it passed on 5/14/2020 to allow medical-legal evaluators more time to schedule appointments and issue reports (regulations 36.7 and 46.2) have been extended until 10/12/2021. 8 CCR 36.7 allows medical-legal evaluators to serve the medical-legal report and other required documents electronically. 8 CCR 46.2 allows medical-legal evaluators to complete telehealth evaluations under certain circumstances and allows parties to waive the right to an appointment with a QME within 90 days if the QME is available within 120 days. The regulation also gave QMEs an additional 15 days beyond the standard 30 days set forth under 8 CCR 38 to prepare the comprehensive medical-legal evaluation.  The press release can be found here:  https://www.dir.ca.gov/DIRNews/2021/2021-29.html

CAL/OSHA CITES MULTIPLE EMPLOYERS FOR COVID-19 VIOLATIONS
Per a recent news release on the DIR’s website, Cal/OSHA has cited several employers for COVID-19 violations. A Los Angeles garment manufacturer was cited with proposed penalties of $102,550 for a variety of serious and regulatory violations of COVID-19 rules. The heftiest fine proposed was against San Quentin State Prison, which is faced with a proposed fine of $396,070, levied on 2/1/2021 for 9 violations, including 6 serious or willful violations. AB 685 requires employers to observe certain notice requirements largely aimed at ensuring individuals who may have been exposed to COVID-19 are notified. AB 685 also requires employers to report outbreaks to the local health agency within 48 hours.
Cal/OSHA’s website has a full list of all citations available here:
https://www.dir.ca.gov/dosh/COVID19citations.html

PROPOSED BILL WOULD REDUCE INVESTIGATIVE PERIOD TO 45 DAYS FOR MOST CLAIMS AND INCREASE INITIAL MEDICAL LIABILITY TO $17,000
Senate Bill 335, proposed by Senator Dave Cortese of San Jose, would amend Labor Code Section 5402 to reduce the investigation period afforded to an employer before a claim is accepted or denied from 90 days to 45 days. Under the current system, if a claim is not rejected within 90 days, it is presumed compensable and can thereafter only be denied on the basis of evidence discovered after the 90-day period. The bill would reduce the investigation period further in the case of certain claims. For claims filed under the hernia, heart trouble, and pneumonia presumption under Labor Code 3212, and for claims filed under the low back “gun belt” presumption under Labor Code 3212.2, the period in which to deny a claim would be reduced to 30 days.
Additionally, the bill would reduce the investigation period for all COVID-19 claims to 30 days, which is already the case for firefighters, law enforcement, and healthcare providers pursuant to Labor Code 3212.87. The bill would amend Labor Code 3212.88 so that employers no longer have 45 days to investigate whether an outbreak of COVID triggering the presumption as to any particular claim has occurred. The proposed text can be found here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB335

PROPOSED BILL WOULD PROVIDE ACUTE CARE HOSPITAL EMPLOYEES WITH A PERMANENT COVID PRESUMPTION
Senate Bill 213, also proposed by Senator Cortese, has been amended to include COVID to the list of respiratory diseases and injuries presumed industrial if they are contracted by hospital workers providing direct patient care. Previously the list of ailments subject to the proposed presumption included tuberculosis, meningitis, cancer, musculoskeletal injuries, and PTSD. Currently the COVID presumptions will sunset on 1/1/2023, but this bill would extend them indefinitely for hospital workers. The proposed text can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB213

PROPOSED MEDICAL-LEGAL FEE REGULATIONS TO BE REVIEWED BY THE OFFICE OF ADMINISTRATIVE LAW
It is anticipated that new medical-legal fee regulations will be in effect as of 4/1/2021 that could impact how medical-legal discovery is conducted. The initial medical-legal evaluation will be subject to a flat fee of $2,015.00. The fee anticipates review of up to 200 pages of documents, but any documents beyond that will be subject to a $3/page cost. Follow-up evaluations will be subject to a flat fee of $1,316.25, also contemplating the review of 200 pages of additional records built into the flat fee, with any new documents over the 200-page limit being billed again at $3/page. Supplemental reports will be billed at a flat fee of $650.00 and will allow for 50 new pages of documents, again with each excess page billed at $3.
Additionally, the documents sent to the doctor must be accompanied with a declaration from the submitting party declaring that the submitting party has complied with Labor Code Section 4062.3 and has provided copies to the opposing party 20 days before a QME evaluation. The declaration must contain the number of pages provided and if the declaration is not supplied, the records will not be considered available to the physician for the purposes of any regulatory or statutory duty of the physician regarding records and report writing. It is unlikely the physician will review any records without the required declaration as proposed regulation 8 CCR 793(n) indicates that a physician may not bill for the review of documents provided without the required declaration.
It is thought that these regulations will reduce the number of unnecessary documents sent to QMEs and require parties to be more judicious in identifying and serving only documents relevant to the issues in dispute in a given claim. The declaration will also require more uniform and consistent compliance with the advance service requirements of Labor Code 4062.3. The full text can be found here: https://www.dir.ca.gov/dwc/DWCPropRegs/2020/Medical-Legal-Fee-Schedule/Med-Legal-Fee-Schedule.htm

NEW CASE BRIEFS AVAILABLE
This month, Sepideh Sepidehdam, Associate Partner in our Van Nuys office, has written an extremely timely and helpful article on judicial review of settlements. The article outlines how the parties can better position their settlements for approval now that settlements are more frequently being uploaded for judicial review, rather than discussed with the judge by an attorney at hearings or on in person on a walk-through basis.
The article discusses what the term ‘adequacy’ means, the new virtual “walk-through” process, how adequacy of settlement can be documented, and provides helpful pointers to make sure your settlements are approved without the need for a status conference on adequacy. The article can be found here:
https://www.mulfil.com/settlements/?single_header=briefs&get_cat=case-brief