End of Month Newsletter-June 2020 by Cliff Weinberg

Jul 6, 2020

Dear Clients, Friends and Colleagues:

This month’s newsletter provides a brief summary of the recent CAAA webinar which for the first time was done remotely. It was called the “Unconventional Virtual Summer Convention” and was provided in its usual format via Zoom, with three or four attorneys and/or doctors providing their comments, opinions and instruction materials on important topics related to our workers’ compensation community. The following provides brief highlights as to the topics discussed.

COVID-19

It was not a surprise to hear a great deal of discussion regarding law office management during the current pandemic. The practicality of remote depositions of all witnesses, including doctors, was emphasized.

Obviously of great concern from both the applicant and defense perspective involves the filings of claims alleging internal injuries related to COVID-19. It was noted that the Governor’s Executive Order establishing a rebuttable presumption for all employees working outside of the home expires on July 6. Further legislative efforts to establish rebuttable presumptions or conclusive presumptions with respect to essential businesses and first responders are anticipated.

The American College of Occupational and Environmental Medicine (ACOEM) web site was provided with a wealth of medical information regarding this disease, symptoms, signs, causation factors, incubation periods, et cetera: www.info.mdguidelines.com/covid-19.

Although a great number of people who become infected heal without any further problems, there are a number of chapters in the AMA Guides which could apply in COVID-19 situations including the following: cardiomyopathy (Table 3-9), arrythmia (Table 3-11), cardiac muscle injury (Table 3-6a), pulmonary emboli (Table 4-6), carotid occlusion (Table 4 2, or Chapter 13), deep vein thrombosis (Table 4-5).

Notwithstanding the presumptions, causation is of course a significant issue with any of these exposure cases. Considerations should be given to the following: Has there been a positive test; was there a specific exposure incident at work where the infected employee was within 6 feet for 10 minutes or longer of a co-worker who tested positive; has there been a person who lives with the infected employee tested positive for COVID-19; are there comorbid conditions.

The source of the disease may be difficult to prove in the absence of a presumption.

Of course, in death claims, the threshold for causation is extremely low and only requires a “hastening” of an underlying condition. Once this is established (described as “breadcrumbs”) there is no apportionment of death benefits.

MOST IMPORTANT CASES

A panel of leading applicant attorneys throughout the State reviewed Panel and Appellate decisions over the last 6 months. These cases involved the following topics:

1. Causation issues particularly considering the pandemic. These included the following scenarios:
• Second worksite at home qualifies as AOE/COE
• Multiple jobsites (constructions workers, landscapers) can cause an inference of injury based upon circumstantial evidence and can prove AOE/proximate causation in a coronavirus situation
• In one case, an occupational disease had a latency period and the disease manifested itself well after exposure and was deemed AOE/COE

2. A common area of dispute involves QME specialties. Recent Panel decisions provide that one need not wait on issuance by the Medical Unit in response to a request for a replacement Panel based upon an improper specialty. A DOR can be filed directly with the board so that a judge may determine the appropriate specialist. However, the cases largely allow the first party to choose a specialty to prevail (example, chiropractor allowed to stand rather than an orthopedic in a knee case).

3. Regarding a Labor Code § 4662(a) presumption case involving permanent total disability, the Panel in a 2/1 decision held that this conclusive presumption did not preclude apportionment under Section 4663 and 4664. Not surprisingly, applicant attorneys were critical of this decision.

4. In the Martinez case, the board discussed the Kite decision with respect to adding as opposed to combining disabilities. The court held that a rigid application of the CVC is required but that it is rebuttable. The applicant attorneys took issue with this characterization stating that the CVC formula is not a presumption so how could it be rebuttable? In any event, the WCAB held that the evaluator had not given any substantive reason to justify adding the impairments which must involve a description of the synergistic disabling effect on the injured worker’s earning capacity, activities of daily living, and that there is no overlap between the multiple disabilities. In the Martinez case, the QME did not provide a rationale for adding hypertension to the orthopedic impairment.

5. Finally, the recent Justice appellate decision was discussed and compared with the Hikida decision. The panel of applicant attorneys criticized the Justice decision which provides that apportionment is justified pursuant to Labor Code 4663 even where medical treatment results in disability. In Justice, the applicant underwent a total knee replacement, and the court found that the knee surgery itself was not the cause of the disability but rather a combination of the work injury as well significant pre-existing degenerative conditions. The rationale of Hikida is that a knee replacement is the sole cause of the disability.

{NOTE: The Justice decision is being petitioned to the California Supreme Court according to the panel.]

POST-TRAUMATIC STRESS DISORDER

There was an interesting discussion regarding the essentials in making this diagnosis. The employee must either witness or be involved in a life-threatening event.

If the employee claims to have been injured as a result of a violent act or direct exposure to significant violent act, the threshold for compensability is reduced to “substantial cause” which is 35 – 40% of the causation as opposed to predominant cause which is over 50%. There must be objective evidence of actual events that cause psychiatric disability, a factual issue. And, a determination whether the actual events were either due to a substantial cause or predominant cause is a medical issue.

In the case of PTSD, the witnessing or being involved in a life-threatening event would seem to qualify as a violent act for purposes of causation. Again, it is a factual inquiry.

The panel also discussed new Labor Code § 3212.15 which provides that PTSD is now rebuttably presumed to be industrial for specified firefighters and safety officers. The employee must have performed services for the department or unit for at least 6 months and only applies to injuries occurring or after 1/1/20 through 1/1/25 upon which date it will be repealed.

HOME HEALTH CARE

This Panel focused on Labor Code § 4600(h) which requires a “prescription” from a licensed physician and/or surgeon. This does not need to be in the form of an RFA and may be given verbally.

A recent line of cases notes that there is a duty upon the defendant to investigate the need for the services if the prescription is not clearly provided. Furthermore, it was noted that HHC may be exempt from UR if previously authorized; per recent cases a change of circumstances is required to prove that previously authorized home health care should be in some manner changed or eliminated.

CROSS EXAMINATIONS OF MED-LEGAL EVALUATORS

A prominent Northern California defense attorney discussed when cross examinations are appropriate, noting most doctors do not change their opinions. What is the likely outcome and the value to the client? Two key determinants: 1) was there a mistake in the law or the medicine? 2) are there new facts or evidence to present? The other consideration is, of course, whether it may be more efficient to simply send a medical-legal evaluator a set of interrogatories before making the decision to cross-examine.

NON-WORKERS’ COMPENSATION BENEFITS

There was an interesting discussion regarding private disability benefits such as short-term/long-term disability payments. An employer is entitled to a credit against workers’ compensation benefits but only if they contractually considered to be of the “same general character.” Then the amount of credit is proportionate to the percentage of the employee’s contribution to the plan. For example, if the employee receives $10,000.00 in long-term disability benefits, but contributed 30% to payment of that private disability plan, the employer would only be entitled to take 70% of the benefits of a credit, or $7,000.00.

It was also noted that any credit issue remains discretionary with the Court.

The burden of proof is on the employer that they did in fact pay for the private disability plan and that the parties intended the benefits to be the same character as workers’ compensation benefits.

Should you wish to discuss in more detail any of the foregoing issues please do not hesitate to contact me.

Please stay safe and healthy, Cliff.

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