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SAVING LIVES FROM LIVING ROOMS
It has now been around a month since several counties in California and then the entire state issued shelter in place directives to slow the spread of COVID-19. These are certainly difficult times, and we have all been asked, as Californians and Americans, to make personal and financial sacrifices to protect the most vulnerable amongst us. While life continues on, with all of its developments – births, deaths, graduations, anniversaries – we are all trying to find new rituals, new ways of connecting, and new methods for marking the passage of time and the special moments in life.
On the front lines, first responders, doctors, nurses, police officers, grocery store employees, delivery drivers, and other essential workers are risking their health to keep the basic needs of society met. Professionals in every field have done what they can to adjust their standard operating procedures for these not quite standard times. We are all becoming experts at Zoom, and Skype, and a dozen other remote conferencing platforms. If there is any consolation in all of this, it is the ability we have shown as a society to band together and adapt longstanding practices on short notice to meet a shared challenge.
For our part, Mullen and Filippi remains committed to providing strong defense representation for employers and has adapted its procedures and practices to be able to provide such representation during the shelter in place order. With some additional effort from our attorneys and staff, we have been able to adjust how things are done while still maintaining our high standards as to quality, responsiveness, and cost effectiveness. No matter how long the shelter in place order remains, our firm will be available so long as you are in need of advice or representation for your workers’ compensation claims.
The workers’ compensation industry more broadly has also been adapting, and the DWC, WCAB, and all of the stakeholders in the industry have been proactive in putting in place measures that ensure that the mandate set forth in the California Constitution that substantial justice be accomplished in all workers’ compensation cases “expeditiously, inexpensively, and without incumbrance of any character,” is honored.
While there is no clear timeline for when the shelter in place directives will be relaxed, and most public officials are advising that the return to normalcy will be more of a process than a ribbon ceremony, plans for reopening society and commerce are beginning to gradually coalesce, at least in California. Until the time that we are allowed to return to work completely, we in the workers’ compensation community will all do our part to keep things moving along. On a broader societal level, as individuals, we will each practice small acts of heroism: by staying in to keep germs from spreading, by brushing up on trigonometry to assist in our children’s education, and even by ordering pizza to keep local economies alive.
DWC AND WCAB ANNOUNCE UPDATED FILING AND HEARING PROCEDURES
The DWC and the WCAB announced that effective 4/13/2020, the DWC will reopen for filing purposes and will accept filings by e-filing via EAMS, JET file, or by mail. No walk-in filings, walk-through documents, or in-person requests will be accepted currently. To allow for streamlined processing of documents, the DWC is accepting electronic signature on all settlement documents, applications, pleadings, petitions, or motions sent to the district offices or filed in EAMS.
As for hearings, all mandatory settlement conferences, priority conferences, status conferences, and all expedited hearings will be heard telephonically. All trials and all lien conferences will be continued until further notice. To accommodate the high volume of telephonic appearances, all WCJs will hear cases by an individually assigned conference line, available toll-free to the parties. A list of all conference line numbers is available for download here.
It is unknown how long these stop-gap procedures will be in effect, but all announcements from the DWC appear to be tracking the general guidance provided by local and state government as to best practices during the pandemic. It is expected that such coordination between various departments in government will continue. We are available at Mullen and Filippi to answer any questions you might have about how to continue handling and litigating your claims during the shelter in place order. All our offices have now adopted new procedures designed to reflect and quickly respond to any changes in procedure required by the WCAB. We have fortunately placed ourselves in position to be able to continue representing our clients’ interests effectively and with minimal disruption.
WCAB ISSUES EN BANC VOUCHER DECISION
The WCAB issued an en banc Opinion and Decision after Reconsideration on 4/13/2020 in the case of Anthony Dennis v. State of California Department of Corrections and Rehabilitation Inmate Claims; State Compensation Insurance Fund. The WCAB indicated that 8 CCR 10133.54, which allows parties to submit disputes as to the Supplemental Job Displacement Benefit voucher directly to the Administrative Director, is invalid because it exceeds the authority of the Administrative Director provided for by Labor Code sections 4658.5(c) and 4658.7, which allow the Administrative Director to adopt regulations for the administration of the supplemental job displacement benefits program. In the decision, the WCAB first noted that it was vested with exclusive original jurisdiction to determine the validity of regulations adopted by the Administrative Director and went on to confirm that the California Constitution and Labor Code section 5300 establish that the WCAB has exclusive adjudicatory power over claims to compensation, and that this includes disputes over supplemental job displacement benefits.
The decision also confirms that the there is largely strict liability to issue a voucher where an employer cannot show a bona fide offer of regular, modified, or alternative work. The facts of the case involved an inmate employee who was made an offer of work as an inmate employee that he could not accept because he had been released from prison. The WCAB reasonably concluded that the legislature did not intend to shield employers from voucher liability where the employer made an offer of employment that the employer could never honor.
The case again appears to indicate that the voucher statute is a strict liability statute. If the statute is read plainly, it would provide for voucher liability even in cases where the employer could make an offer of employment but for applicant’s termination for cause or voluntary resignation. Such cases are factually distinguishable, of course, from the case of an inmate employee who is then released, but the WCAB appears to be reading the statute as plainly as it is written. The decision can be read here.
WCIRB AND INSURANCE COMMISSIONER ADDRESS COVID-19
The Workers’ Compensation Insurance Rating Bureau, voted by committee in favor of three regulatory changes. The first regulatory change would exclude claims arising out of COVID-19 from experience modification ratings. The second would classify some employees as clerical office workers during the shelter-in-place protocols. The third would exclude from reported payroll the payments made to those who are being paid despite not being actually engaged in work activities. To move forward, the proposed changes must be approved by the WCIRB’s Governing Committee and then it would be up to Insurance Commissioner Lara to give final approval to the new regulations.
Insurance Commissioner Lara has already been active in addressing the unique circumstances presented by COVID-19. Commissioner Lara ordered workers’ compensation carriers and insurers in some other lines to pay back premiums on account of the economic fallout of COVID-19. The order was issued to reflect a substantial reduction in the risk of loss as a result of the shelter in place order. Currently premiums for March and April are being ordered returned, with May premiums possibly also subject to the order should shelter in place protocols remain in effect. Some insurance industry stakeholders have expressed concern that actuarial determinations rather than broad legislative action remain the best method for insuring premiums are appropriate, and have also expressed concern that employers and insurers may still be exposed while employees work from home. How the order will be carried out is less than clear, though the order provides that premium credits, reductions, returns, or other adjustments are to be issued by August of 2020. The bulletin from Commissioner Lara can be read here: http://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/upload/Bulletin_2020-3_re_covid-19_premium_reductions-2.pdf
DWC ADJUSTS OFFICIAL MEDICAL FEE SCHEDULE TO ENCOURAGE TELEHEALTH SERVICES
The DWC has posted an order adjusting the Physician Services/Non-Physician Practitioner Services Fee Schedule in the hopes of encouraging the provision of telehealth treatment services in workers’ compensation claims during the COVID-19 pandemic. The changes track Medicare’s public health emergency Physician Fee Schedule interim revisions, which expand the list of services that can be provided through telehealth and modify the place of service code for telehealth. The revisions should equalize the payment for a service whether provided in the physician’s office or through telehealth. The changes were put in place to encourage the use of telehealth where medically appropriate.
NEW CASE BRIEFS AVAILABLE!
Two new case briefs are available this month on our website. The first, written by Katherine O’Brien, Managing Associate Partner of our San Diego office, addresses changes to the rules governing disputes over medical-legal expenses not subject to Independent Bill Review. The article discusses how to determine when a dispute is not properly subject to Independent Bill Review and sets forth important timelines that must be observed by defendants lest they waive available objections or defenses to a disputed bill.
The second article, written by S. Isaac Escobedo, Senior Counsel out of our Sacramento office, provides a timely and in-depth look at the impact, financial and otherwise, that COVID-19 could have on the workers’ compensation system. The article also discusses the industries most likely to see workers’ compensation claims arising out of COVID-19 infections and exposures.
This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.