State News : California

California workers’ compensation is off to an interesting start for the year.

The Last Of The Board’s En Banc Emergency COVID Orders Has Been Rescinded

The Appeals Board issued several En Banc decisions in response to the state of emergency brought on by COVID-19.  These decisions temporarily suspended specific WCAB Rules of Practice and Procedure.  As we began to come out of the pandemic, the Board began rescinding those rules suspensions.  On February 28, 2023, California Governor Newsom terminated the COVID-19 state of emergency.  In response, the Board issued a new En Banc decision on March 22, 2023, Misc. No. 268.  This decision rescinded all remaining provisions of prior Misc. Orders in numbers 260, 261, and 266.  As the Board noted in footnote 3, “By this order, the Appeals Board rescinds all remaining rule suspensions.”

So, what does this mean for workers’ compensation practitioners?  This means that we are back to pre-pandemic rules and procedure, though there are hopefully a few changes that will remain with us.  The Misc. No. 268 dealt with three specific areas where rules and procedure were temporarily suspended; witness signatures on C & R’s, electronic filing of documents, and walk through assignment hours.  Let’s look at the impact of Misc. No. 268 in each of these areas.

Misc. No. 260, witness signatures

This is the area that may have the most day-to-day impact on practitioners.  Misc. No. 260 temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures and specifically noted the suspension of the requirement in the Compromise and Release agreements for signatures from two witnesses. Further, signatures on the forms from all parties may be electronic.  This Misc. Order issued March 18, 2020, in the very early days of the state of emergency. 

Whether parties will once again have to obtain actual non-electronic signatures is still up in the air with some judges requiring this while at least one has said “If DocuSign is good enough for my mortgage, it is good enough for a C & R”.  What we do know is that we once again require two witness signatures or completion of the notary form.

Electronic unwitnessed signatures on the Compromise and Release was an incredible time saver for both applicants and defendants and was very convenient.  The parties could simply email documents and obtain quick electronic documents.  There was no need for anyone to actually meet in person for signatures, scan signed documents, or mail them.  There is now.

Misc. No. 261, electronic filing

This area will also remove a major convenience for the workers’ compensation practitioner.  Misc. No. 261 temporarily suspended WCAB Rule 10940(b) regarding sending documents directly to the Appeals Board by fax or email for filing.  This Misc. Order issued March 19, 2020, the day after Misc. No. 260.

Misc. No. 261 noted that Rule 10940(b) “prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board.”  This was an incredible convenience that many took full advantage of.  Email with the Board was quick and easy and a major time saver.  That is no longer allowable and we are back to Rule 10205.7(c), which provides:

“No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers' compensation administrative law judge or the appeals board.”

Misc. No. 266, walk through assignment hours

Walk-through hearings area quick and easy way to move along a dispute or to obtain approval of a settlement.  Misc. No. 266 temporarily suspended WCAB Rule 20789(c) requiring that each district office have a designee of the presiding judge available to assign walk-through cases from 8:00 am to 11:00 am and 1:00 pm – 4:00 pm on court days.  This Misc. Order issued April 6, 2020, a few weeks after the other two Orders.

Rescinding this rule suspension should not have much practical effect as this has already been the case since the all DWC district offices except Eureka started again accepting in-person walk-through documents beginning September 6, 2022.  Concurrently, effective September 6, 2022, the DWC stopped  accepting virtual walk-throughs in the Lifesize platform.

Other Pandemic Changes

The Appeals Board instituted other changes during the pandemic that will hopefully remain with us. Possibly the most convenient and time saving of these changes is remote conferences, either by phone or Lifesize. 

There is most definitely something to be said for in person appearances.  This allows the parties to meet face to face and iron out conflicts not only in the case on calendar but in other matters as well.  It also allows for the practitioners to build a sense of community. 

However, the convenience of remote hearings and depositions is unmatched.  There is also a major cost savings for travel and wait times.  This also benefits witnesses who will not be as inconvenienced in appearing.  It is still unclear whether wet signatures will once again be required.

A Board Panel Decided that "High-Velocity Eye Injury" Does Not Actually Require A Direct Injury to Eye In Order to Apply LC § 4656(c)(3(F) Exception to 104-Week TD Cap

A unanimous panel of Commissioners issued a decision in the case of Glick v. Knight Transportation Holdings, Inc. upholding an Award of up to 240 weeks of Temporary Disability indemnity benefits to an applicant based on CA Labor Code § 4656 (c)(3)(F), based on an extremely broad interpretation of the phrase "high-velocity eye injury".

The applicant was employed as a truck driver. On November 26, 2018, he was struck by a motor vehicle while crossing a street. The vehicle was traveling at approximately 30 miles per hour at the time of impact, and the applicant was thrown approximately 10 feet. Among the numerous injuries sustained were fractures to the right and left temporal bones. 

The parties utilized a QME in Physical Medicine and Rehabilitation who determined that the applicant's "number one problem" was vision difficulty. A QME in ophthalmology also diagnosed vision issues including double vision which required eye muscle surgery. 

Defendant ceased payment of Temporary Disability indemnity benefits on 11/24/2020 (based on the 104-week cap in LC § 4656 (c)(2). Applicant requested an Expedited Hearing on the issue, arguing that he had sustained a "high-velocity injury" to the eyes which entitled him to an extended period of benefits pursuant to LC § 4656 (c)(3)(F).  

On December 21, 2020, the Workers' Compensation Judge issued a Findings & Award, finding that the applicant had sustained an injury to the "ophthalmology/vision/eye" caused by a "high-velocity impact", and that the applicant was entitled to ongoing temporary disability pursuant to LC § 4656 (c)(3)(F). 

Defendant filed a Petition for Reconsideration, arguing that the "plain language or common meaning" of the term "high-velocity eye injuries" requires "at least some impact with the eye". The defendant cited the WCAB's "common sense" interpretation of "amputation" in its analysis of LC § 4656 (c)(2)(C) [Cruz v. Mercedes-Benz of San Francisco (2007) 72 CCC 1281]. The petition was denied. 

In their decision, the Commissioners cited Glover v. ACCU Construction (2009) 2009 Cal. Wrk. Comp. P.D. Lexis 301, noting that in that case the applicant was awarded additional Temporary Disability benefits as a result of being struck by a metal fragment that was thrown by a mulching mower. The metal fragment entered the applicant's nostril and fractured the eye socket, but did not directly impact the eye ball. 

In reaching their decision in this case, the Commissioners apply a very broad interpretation of the phrase "high-velocity eye injuries" to include an injury caused by "quickness of motion, rapidity of movement or speed imparted to something" that results in medical treatment to the eye. It does not require injury to the organ of the eye. 

Apparently realizing the impact this decision might have, the Commissioners' opinion is careful to note that their analysis "is limited to the facts of this case". 

Newly Enacted SB 1127 Changed the Landscape in Deciding Whether to Deny Certain Claims

SB 1127 became effective as of 1/01/2023.  This changes the California workers’ compensation landscape in three ways:

1. Reduces the decision period from 90 days to 75 days for injuries and illness defined under sections 3212 to 3212.85, and 3212.9 to 3213.2 (i.e., presumptive injuries for specified safety officers);

2. Increases the maximum number of weeks of disability benefit entitlement from 104 weeks to 240 weeks for presumptive cancer claims for specified firefighters and peace officers as defined in LC 3212.1; and  

3. Increases the penalty - up to five times the amount of benefits up to $50,000 - for claims of injury or illness as defined in sections 3212 to 3213.2 (i.e., presumptive injuries for specified safety officers and COVID-19 presumptive claims) that are unreasonably denied. (LC 5414.3)  

While all three of the above-mentioned provisions have an effective dated of 1/01/2023, the increased penalty provision of newly created LC 5414.3 applies retroactively, regardless of whether the injury occurs before, on, or after the effective date. 

The reduced decision period provision affects fewer injuries and illnesses when compared to the increased penalty provision. However, both provisions apply to specified safety officer claims for hernias, heart trouble, pneumonia, cancer, PTSD, tuberculosis, MRSA, biochemical substances, meningitis, skin cancer, Lyme disease and to the low back under the duty belt presumption. 

By contrast, the penalty provision covers the three COVID-19 presumptions – 3212.86, 3212.87 and 3212.88 – whereas the reduced decision period provision does not. Thus, the timelines for decision-making specified for COVID presumption claims under SB 1159 still apply: 30 days under LC 3212.86 (essential workers with dates of injury before 7/05/2020); and, for qualified employees with a date of injury after 7/05/2020, LC 3212.87 (certain peace officers, firefighters and specified health care workers) allows for 30 days, whereas a decision must be made within 45 days for COVID claims arising under LC 3212.88 during a period of outbreak (for employees not covered by 3212.87).

Now more than ever, the defense community, and in particular claim examiners, should be cautious when determining if an employee has a qualifying job and qualifying injury.