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TAKE ME OUT TO THE BALLGAME – OR ANYWHERE, REALLY
TAKE ME OUT TO THE BALLGAME – OR ANYWHERE, REALLY
As of April 14, 2021, the California Department of Public Health’s vaccine dashboard (Vaccines – Coronavirus COVID-19 Response (ca.gov) indicated that 19.6% of people are partially vaccinated and that 29.4% of people are fully vaccinated statewide. Although there have been some setbacks, we are solidly in springtime and there is a feeling that things are starting to slowly open up again and that we should perhaps cautiously enjoy.
April is National Poetry Month, and a few poems come to mind for a time like this. “To the Thawing Wind” by Robert Frost would be appropriate, with its line “give the buried flower a dream.” If that’s too heady, here’s a simpler line – “take me out to the ballgame!”
This author will be happily attending his first San Francisco Giants game since the before times. I am very much looking forward to letting the sound of the crack of bat on ball and the resultant cheer of the crowd serve as the sound of normalcy returning for a few hours, even if it is in a half-empty stadium requiring a temperature check and vaccination card for admission.
NEW MEDICAL-LEGAL FEE REGULATIONS NOW OPERATIVE
Discussed in some detail in last month’s bulletin (GREENER PASTURES (mulfil.com)), the new medical-legal fee regulations will now be operative for all evaluations, requests for supplemental reports, and medical-legal depositions going forward. Mullen & Filippi will be providing seminars on the new fee schedule, which does have the potential to change how discovery is conducted. The new fee schedule will likely have some predicable effects.
One effect will be that parties have to be more proactive in gathering and reviewing records to be sent to the QME to ensure they provide the documents to opposing parties at least 20 days before an evaluation. Another is that parties will need to be more judicious as to the documents to be sent to the QME in terms of the relevance of those documents to issues in dispute. Duplicative or unnecessarily cumulative records and marginally relevant records will likely be withheld as review beyond the base page-limits contemplated as part of the flat fees may prove cost prohibitive. A cost benefit analysis will likely be necessary in hotly disputed cases with voluminous records.
BOARD PANEL DECISION CLARIFIES CATASTROPHIC INJURY AND USE OF ADDITION IN PLACE OF COMBINATION
The recent decision of Lund v. Ryko Solutions, Inc. (2020 Cal. Wrk. Comp. P.D. LEXIS 373) discussed the addition of impairments as opposed to combination, the catastrophic injury exception to the bar on permanent disability for compensable consequence psyche injuries, Labor Code 4662(b), and the Fitzpatrick decision. In the case, which involved a 2014 injury, the WCAB affirmed a WCJ’s finding of permanent and total disability. The WCAB opined that though Fitzpatrick established that Labor Code 4662(b) does not provide a separate and distinct method from Labor Code 4660 for determining permanent disability, a WCJ can still find permanent and total disability when: the medical legal evaluators agree that addition rather than the Combined Values Chart (CVC) should be used; where vocational evidence suggests total loss of earning capacity and lack of amenability to vocational rehabilitation; and where separate impairment is available for a psyche injury under Labor Code 4660.1 due to the catastrophic nature of the injury.
The WCJ reached the permanent and total finding in part by adding. The WCJ found that the medical evaluators had established there was minimal overlap between the orthopedic and psychiatric impairments, and by finding that the vocational expert had provided substantial evidence that the synergistic effects of the psychiatric and orthopedic injuries resulted in a lack of amenability to vocational rehabilitation.
Importantly, the WCAB affirmed the WCJ’s reliance, in finding compensable psyche permanent disability, on the factors set forth in Wilson v. State of CA Cal Fire (2019), 84 Cal. Comp. Cases 393. That case looked to not the mechanism of injury but the nature of the injury, and specified an inclusive but not exclusive list of factors to consider, including: 1) the intensity and seriousness of the treatment; 2) the outcome of the injury upon attainment of permanent and stationary status; 3) the severity of the injury and the impact on ADLs; 4) how analogous the injury is to the examples of sever burn, paralysis, severe head injury, or loss of limb set forth in Labor Code 4660.1; and 5) whether the physical injury involves a progressive and incurable disease.
In Lund the WCJ focused on the need for two-disc fusion and decompression surgery, a functional capacity evaluation, and credible testimony suggesting significant physical limitations impacting ADLs in finding the injury to be catastrophic such that any permanent disability caused by it was compensable. The case suggests that WCJs will rely on a Wilson analysis in the future when deciding whether the catastrophic injury exception applies. It is also the sort of well-structured multi-factor analysis that a higher court might endorse unless they are convinced of a legislative intent to focus on the mechanism of injury as opposed to the nature of injury.
PROPOSED BILLS WOULD CREATE STATEWIDE MPN, ADDITIONAL PRESUMPTIONS
Last month’s bulletin (GREENER PASTURES (mulfil.com)) discussed proposed Senate Bill 335, which, in pertinent part, would shorten the standard investigative period to 45 days from 90 days, and proposed Senate Bill 213, which would include COVID in presumptions available to hospital workers on a permanent basis. Several additional new bills have been offered for consideration since then.
One of the latest comp-related proposed bills is Assembly Bill 1465, introduced by Assemblyperson Lorena Gonzalez, D-San Diego. AB 1465 would create a California Medical Provider Network and would allow injured workers to choose between a doctor in their employer’s MPN or a doctor in the statewide MPN.
Another proposed bill, AB 415, introduced by Assemblyperson Robert Rivas, D-Hollister, would create a rebuttable presumption that cancer is AOE/COE for certain government workers exposed to fires who aren’t covered by one of the existing cancer presumptions. The presumption would cover city, county, and district employees regularly exposed to fire and fire debris who are not currently covered by Labor Code 3212.1, the firefighter cancer presumption.
Proposed Senate Bill 284, introduced by Senator Henry Stern, D-Canoga Park, also creates a presumption and would expand the post-traumatic stress presumption set forth in Labor Code 3212.15 to firefighters at the Department of Developmental Services, the Military Department, the Department of Veterans Affairs, and the Department of State Hospitals. SB 284 would also expand the PTSD presumption to peace officers, including security officers of the Department of Justice. Finally, the bill would also expand the presumption to public safety dispatchers, public safety telecommunicators, and emergency response communication employees.
NEW CASE BRIEFS AVAILABLE!
This month, Catherine McLaughlin, an Associate Attorney in our San Diego office, provides a breakdown of the recent WCAB decision of Vons v. Vaca (2020) 85 Cal. Comp. Cases 1036, which dealt with whether a Labor Code 132a claim was disposed of by a civil settlement involving a general release. Unsurprisingly, the WCAB maintained that all releases of liability for workers’ compensation benefits and rights incidental to such benefits are subject to WCAB approval pursuant to Labor Code 5000-5006. Ms. McLaughlin provides a thorough discussion of the WCAB’s reasoning and then provides extremely helpful practice pointers for parties seeking to simultaneously settle civil claims and workers’ compensation claims.