WORKERS’ COMPENSATION COVID-19 UPDATE BY CLIFF WEINBERG

Mar 31, 2020

Dear friends, colleagues, and business partners:

As the COVID-19 virus continues to impact our lives, we wish to provide continuous updates on how it effects our workers’ compensation community. Therefore, we would like to highlight the following developments:

• The DWC has issued a recent memo urging the parties to work together with primary treating physicians and QMEs regarding their examinations. During the stay-at-home orders (up to May 1, 2020) they are encouraged to provided medical care via “telehealth” conference evaluations if feasible. This would involve remote visits via video-conferencing, video calling. Or similar technology that allows each part to see each other through a video connection.

As for QME examinations, the DWC “strongly recommends” a telehealth evaluation but the following conditions should apply:

• the injured worker is able to participate in a telehealth evaluation;

• the medical issue in dispute is essential to determine benefits and must be addressed before 5/1/2020;

• written agreement by all parties;

• the QME attests the evaluation can be done effectively without an in-person examination.

Such a medical report obtained via telehealth remains subject to admissibility and must constitute substantial medical evidence. Otherwise, the parties should seek to determine a postponement of the physical examination. The DWC bulletin may be accessed on this link: https://www.dir.ca.gov/DIRNews/2020/2020-26.html

Options and advice to our clients:

• Please note that the foregoing is a guideline and not mandatory. We may wish to craft our own stipulations with applicant’s counsel regarding any examination, whether it be with a PTP or QME.

• In this regard, we might wish to stipulate to a PTP whom we consider to be conservative and fair, agree to telehealth visits, and assist in determination of med-legal issues.

• This could pave the way for the opportunity for quicker settlements.

• Potential added costs? Might we see RFAs for laptops or cell phones in order for injured workers to participate in such telehealth conferences? One local judge indicates it is possible but subject to further study on a case by case basis.

• Applicant advocates, including labor unions with the assistance of CAAA, have sent a letter to Governor Newsom requesting issuance of an executive order that would establish a conclusive presumption that any person infected with the virus who works in one of the previously identified “essential” businesses is deemed covered by workers compensation laws and benefits. We do not believe the governor will issue such an order but if he does not act, emergency legislation will no doubt be sought.

• In a previous newsletter we discussed case law with respect to employer liability for the virus. Be reminded that short of a presumption such as that being sought by employee advocates, the burden of proof is on the applicant that he or she was exposed to a special or materially greater risk of contracting the disease than that of the general public. What is required is some special employment exposure in excess of that experienced by the general population. But all that is required is “reasonable probability,” i.e., preponderance of evidence per Labor Code 3202.5, rather than an industrial connection in great detail. And if there is a compensable C-virus case, most will be determined by Chapter 5 of the AMA guides regarding respiratory disorders, and particularly Table 5-12 and the pulmonary function tables. There is also a potential for a separate psychiatric injury being clamed as a catastrophic injury exception to Labor Code 4660.1 (which otherwise states a psychiatric injury as a compensable consequence of a physical injury does not warrant additional impairment).

Please be reminded, we will be submitting a new video regarding Covid-19 updates in Work Comp Wednesday, April 1st Please make sure you stay updated as things are changing daily. You can find all our videos on our website: https://icomplaw.com/vlog/ all new videos are submitted weekly, every Wednesday.

Should you have any questions regarding the above issues, including potential liability and case handling, please do not hesitate to contact us.

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