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HAPPY LUNAR NEW YEAR!

HAPPY LUNAR NEW YEAR!

On February 12, 2021, the Year of the Rat was ushered out and the Year of the Ox was ushered in.  Traditionally, the Year of the Rat is known for being turbulent and fraught, while the Year of the Ox is supposed to be sturdy and reliable, like its beast of burden namesake.  It’s a year where hard work is supposed to pay big dividends and stamina and persistence have their day.  With any luck this year the stamina we had to get through the last will finally be rewarded.

SIGNIFICANT PANEL DECISION SUGGESTS TRIALS SHOULD PROCEED REMOTELY ABSENT GOOD CAUSE FOR CONTINUANCE

The California Workers’ Compensation Appeals Board on 1/12/2021 in the matter of Limin Gao v. Chevron Corporation addressed a legal dispute as to the remote hearing procedures for trials put in place due to the COVID-19 pandemic.  The applicant sought removal of an 8/25/2020 Order continuing trial to allow for in-person testimony.  The defendant had sought to have its three rebuttal witnesses testify in person after the applicant had testified in person on the initial date of trial.  The applicant, who lived in Canada at the time of the trial, filed a petition requesting that remote testimony be allowed.  Defendant objected, and without allowing for applicant to file a response, the WCJ continued the trial.  The WCJ reasoned in part that due process required that the defense be allowed to present in-person testimony because applicant had testified in person.

On removal, the WCAB found that due process was not observed by denying the applicant an opportunity to respond to the defendant’s objection prior to issuance of the continuance.  The WCAB rescinded the Order Continuing Trial and returned the matter to the WCJ to set a remote hearing at which the issue could be fully heard.  The WCAB, however, went on to address the contention that defendant’s due process rights required equivalent in-person testimony.  The WCAB noted that “it might offend due process to arbitrarily prohibit one party’s witnesses from providing in-person testimony while allowing it from the other party…” but distinguished that from the situation at hand where remote proceedings were instituted due to the novel and generational pandemic that had disrupted global society.

The decision stated:  “Due process is the process that is due under the circumstances as we find them, not as we might wish them to be.”  The WCAB did not find that N-63-20, the Executive Order allowing remote hearings to automatically violate due process.  While the WCAB, noting that each case must be resolved on its own merits, would not issue a blanket rule that continuances to allow for in-person testimony are unreasonable, it did state that the default position should be that trials will proceed remotely in the absence of a clear reason why the facts of a particular case require a continuance.  The WCAB signaled that continuances simply to allow for in-person testimony are not likely to be favored.

BOARD DECISION CONFIRMS THAT PREVIOUSLY AUTHORIZED TREATMENT IN FORM OF ASSISTED LIVING FACILITY CANNOT BE TERMINATED ON BASIS OF UTILIZATION REVIEW ABSENT A CHANGE OF CIRCUMSTANCES

In a 2/1/2021 Panel decision, the WCAB, in the matter of Rivota v. National Cement Company, decided, consistent with the prior Patterson decision, that a defendant who has been authorizing ongoing care cannot terminate that care absent a change in circumstances.  In the Rivota case the defendant had been providing inpatient transitional residential care since 1/23/2020 on the basis of the primary treating physician’s recommendations.  The primary treating physician recommended continued stay at the transitional living center on 9/25/2020, and this renewed request was timely denied by Utilization Review on 10/1/2020.

The WCAB cited to the Patterson decision where the duty to provide medical treatment pursuant to Labor Code 4600 was found to prevent defendant from unilaterally ceasing to provide agreed reasonable medical treatment in the form of nurse case management services.  Extending the logic, the WCAB found in Rivota that the applicant was not required to continuously request treatment that had previously been authorized as medically necessary and reasonable and that defendant must show by substantial evidence a change of circumstances supporting the discontinuation of care.  The full decision can be found here:  https://dir.ca.gov/wcab/Panel-Decisions-2021/Korey-RIVOTA-ADJ9856812.pdf