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Workers’ Compensation Daily News for March 28th, 2020

  • DWC Announces WCAB Offices Status Updates
    on March 25, 2020 at 9:35 AM

    All Division of Workers ’ Compensation (DWC) district offices, with the exception of the Eureka satellite and Bakersfield offices, are open. The Eureka office will remain closed until further notice. The Bakersfield office will be closed on Tuesday, March 24, and Wednesday, March 25, to perform enhanced cleaning and disinfection due to potential COVID-19 exposure.

    The Bakersfield office will reopen on Thursday, March 26.

    To ensure the safety of our employees, DWC will implement procedures in keeping with public health guidance on social distancing. Therefore, DWC will have limited staffing in each district office but will maintain all essential functions. DWC is closely monitoring the situation and will update the public of any changes.

    DWC and WCAB announced March 16 that they are limiting court appearances to protect the health and safety of our staff and the community, in accordance with numerous public health orders suggesting that public gatherings be limited.

    March 23 through April 3: DWC will hear expedited hearings for parties that appear at the district offices. DWC will also hear status conferences, mandatory settlement conferences and priority conferences via CourtCall only. If all parties do not appear via CourtCall the case will be continued and notice will be given. All other hearings will be continued. No trials or lien conferences will be heard during this time.

    March 17 through April 3: DWC’s district offices are closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 6. DWC will not accept walk-through documents, walk-in filings, or any in-person requests until the district offices reopen for filing purposes. The Division’s Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefit Trust Fund and Legal Unit are open for essential services only and will have limited staffing during this time.

    The WCAB Commissioners and staff are working remotely. The Commissioners’ office is closed to the public until further notice. Future updates will be issued through the Division’s website. Please continue to check the website for current status.

  • CDI Extends Insurance Policy Cancellations
    on March 25, 2020 at 9:35 AM

    The California Insurance Commissioner issued a Notice requesting that all insurance companies provide their policyholders with at least a 60-day grace period to pay insurance premiums. The Commissioner made the request to ensure policies are not canceled for nonpayment of premium due to the novel coronavirus (COVID-19) public health emergency.

    The Notice follows Governor Gavin Newsom's State of Emergency declaration to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare and mitigate against the broader spread of COVID-19. The Commissioner's Notice is directed to all admitted and non-admitted insurance companies that provide any insurance coverage in California including, life, health, auto, property, casualty, and other types of insurance.

    Commissioner Lara is also requesting that all insurance agents, brokers, and other licensees who accept premium payments on behalf of insurers take steps to ensure that customers have the ability to make prompt insurance payments, if and where possible. This includes alternate methods of payment, such as online payments, to eliminate the need for in-person payment methods in order to protect the health and safety of both workers and customers.

    In addition, in a separate Notice, the Commissioner requested the assistance of all automobile insurers, producers, and other licensees transacting automobile insurance in California. The California Department of Motor Vehicles (DMV) recently asked California law enforcement to exercise discretion for 60 days in their enforcement of driver license and vehicle registration expirations beginning March 16, 2020, in order to have at-risk populations, including seniors and those with underlying conditions, avoid required visits to DMV field offices.

    To achieve this important objective, Commissioner Lara called on auto insurers to refrain from using the expiration of policyholders’ drivers licenses or vehicle registrations for 60 days, from March 16, 2020, for any of the following reasons:

    -- To affect a driver’s ability to secure and maintain auto insurance coverage;
    -- To affect a driver’s eligibility for a Good Driver discount;
    -- To determine eligibility for a California Low Cost Automobile policy;
    -- To impact the rates charged to any driver.

    "The evolving COVID-19 pandemic continues to test all segments of our communities, including motorists," said Commissioner Lara. "While we address this evolving crisis, Californians should not have to worry about driving with an expired license or losing their insurance coverage and driver discounts during this extraordinarily challenging time."

    This second Notice regarding driver license and vehicle registration expirations will be reevaluated at the end of the 60-day period.

  • AM Best P/C Downgrades Exceed Upgrades
    on March 24, 2020 at 10:52 AM

    For the first time in five years, credit rating downgrades for the U.S. property/casualty (P/C) industry outnumbered upgrades on a marginal basis in 2019, according to a new AM Best special report.

    The Best’s Special Report, titled, "Rating Downgrades Outnumber Upgrades in 2019," states that the number of downgrades rose by over 25% from the prior year, owing to a number of factors, including weather-related losses, challenging pricing in competitive lines of business and a rise in loss cost severity in several lines of business.

    Despite a decline in upgrades and increased downgrade activity, numerous companies still showed improved risk-adjusted capitalization and positive operating performance, which supported higher rating levels.

    Catastrophe activity declined markedly in 2019, which benefited the underwriting profitability of numerous lines of business, as well as risk-adjusted capitalization. Strengthened capitalization and upgrades also resulted from merger and acquisition activities, along with explicit parental support through either additional equity contributions or internal quota share agreements with parents.

    Affirmations and upgrades accounted for 85% of all rating actions, reflecting the industry’s persistently strong capitalization, growing pricing sophistication, and positive operating results. However, some individual companies continue to face significant headwinds, including operating pressure from the reduced benefit of prior year reserve releases; weather-related events on property carriers concentrated in a single state; and increased severity affecting numerous lines of business.

    The following are some other highlights from the report:

    -- The number of ratings placed under review in 2019 declined well below 2017 and 2018 levels. Under review actions in 2017 were affected by implementation of the updated Best’s Credit Rating Methodology (BCRM), while actions in 2018 were due primarily to heightened catastrophic weather activity;

    -- In the commercial lines segment, negative outlooks (22) continued to outnumber positive outlooks (21). Overall, 86.6% of the segment’s outlooks are stable, a slight increase when compared to the prior period. Although the segment certainly continues to face headwinds; and

    -- Of the total rating changes, 31 (4.0% of all rating changes) were assignments compared to 21 (2.8%) the prior year. The majority of assigned ratings were for commercial lines companies and covered entities writing various coverages, including workers’ compensation, commercial casualty, private passenger standard automobile and commercial automobile.

    In 2019, upgrades decreased significantly from the prior year, although rating changes rose slightly - ratings on 137 rating units changed compared to 128 in 2018. As in prior years, affirmations, at 78.4%, were the most common rating action, slightly below the five-year average. The high percentage of affirmations reflects the overall stability of the U.S. P/C industry.

    AM Best is a global credit rating agency, news publisher and data analytics provider specializing in the insurance industry. Headquartered in the United States, the company does business in over 100 countries with regional offices in New York, London, Amsterdam, Dubai, Hong Kong, Singapore and Mexico City.

  • DWC Adjusts OMFS - Physician / Non-Physician Practitioner Services
    on March 24, 2020 at 10:52 AM

    The Division of Workers’ Compensation (DWC) has posted an order adjusting the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

    The Physician and Non-Physician Practitioner Fee Schedule update Order adopts the following Medicare changes:

    -- CMS’ Medicare National Physician Fee Schedule Relative Value File RVU20B April 1, 2020 quarterly update
    -- National Correct Coding Initiative Practitioner Procedure to Procedure (PTP) Edits April 1, 2020 quarterly update
    -- National Correct Coding Initiative Medically Unlikely Edits April 1, 2020 quarterly update (excluding MUE “0” value codes)
    -- CMS’ ZIP Code to Carrier Locality files April 1, 2020 quarterly update, for Geographic Practice Cost Index (GPCI) locality mapping

    The order adopting the OMFS adjustments is effective for services rendered on or after April 1, 2020 and can be found on the DWC website.

  • WCAB Reverses Two Concurrent 100% Awards to Same Worker
    on March 23, 2020 at 12:57 PM

    Maria Fraire was awarded 100% permanent disability twice, in two out of three cases she filed against the California Department of Corrections and Rehabilitation, without any apportionment. A split panel decision in Fraire v California Department of Corrections reversed this result.

    In the first case, Maria Fraire, sustained industrial injury to her right hand and fingers, cervical spine, bilateral knees, cervical spine, lumbar spine and head on May 23, 2005. The WCJ found that the permanent disability for this injury will be addressed in the two companion cases.

    In the second case, the WCJ found that Fraire sustained industrial. injury to her bilateral knees, internal organs, both eyes, left shoulder, diabetes, cardiovascular system, psyche, and hypertension on September 11, 2006, which caused permanent total disability (i.e. , 100%) based on the provision of Labor Code section 4662(a)(1) that the loss of both eyes or the sight thereof is conclusively presumed to have resulted in permanent total disability.

    In the final case, Fraire injured her her eyes, psyche, and cardiovascular system on June 28, 2012. The WCJ found that her June 28, 2012 injury caused permanent total disability (i.e., 100%) based on the provision of section 4662( a)( 1) that the loss of both eyes or the sight thereof is conclusively presumed to have caused permanent total disability.

    And as in the 2006 case, the WCJ found that although the medical evidence establishes that only half of applicant's permanent total disability was caused by her June 28, 2012 industrial injury, the conclusive presumption of section 4662(a)(l) precludes the apportionment of applicant's permanent total disability.

    SCIF' s petition for reconsideration contends that the injuries involving the loss of both eyes or the sight thereof under section 4662(a)(l) are subject to apportionment under section 4663. Reconsideration was granted, in the split panel decision of Fraire v California Department of Corrections.

    The WCAB concluded that section 4662(a) conclusive presumption does not preclude apportionment. With respect to apportionment to causation under sections 4663 and 4664 (b), there is no reasonable rationale for distinguishing between permanent disabilities that are conclusively presumed to be total in character pursuant to section 4662(a) and those that are factually determined to have caused 100% overall permanent disability pursuant to sections 4662(b) and 4660.

    "On remand, the WCJ should redecide permanent disability and apportionment in applicant's three cases in light of the correct legal principle that permanent disabilities that are conclusively presumed to be total under section 4662(a) are  subject to apportionment to causation under sections 4663 and 4664(a)."

    Commissioner Katherine A. Zalewski dissented. She said that "the Appeals Board has repeatedly held that permanent disabilities that "shall be conclusively presumed to be total in character" pursuant to section 4662(a ) are not subject to apportionment to causation under section 4663 or 4664(a)."

    "Nevertheless, in his Joint Opinion on Decision, the WCJ does not even address how, if at all, this provision of section 4664( c) could justify two separate 100% permanent disability awards in these cases. Accordingly, for this limited reason, I would have rescinded WCJ's decisions and returned these cases to the WCJ to consider whether two separate 100% permanent disability awards are justified."

  • SCIF Moratorium on Policy Cancellations and Late Penalties
    on March 23, 2020 at 12:57 PM

    The State Compensation Insurance Fund just announced that it is taking several steps to support its policyholders during the COVID-19 crisis.

    State Fund has placed a moratorium on policy cancellations and late payment penalties.

    It will also extend credit to any business negatively impacted by COVID-19 events and offer businesses the ability to adjust their payroll reporting.

    Because the health and safety of California business owners, workers, and its own employees is its highest priority, State Fund is postponing all site visits.

    State Fund has also executed a work-at-home program that is allowing the vast majority of its employees to work remotely--it remains open for business and ready to assist policyholders with all of their workers’ compensation needs.

    "We’re adapting quickly to this new environment and doing what we need to do to protect our employees and our customers," said State Fund President & CEO Vern Steiner. "We’ve been serving California for 106 years and we’re in a strong position to continuing doing so now and into the future."

    To ask questions, adjust payroll or request a credit extension, State Fund policyholders can call (888) 782-8338. For more information about State Fund, visit

  • DWC Announces QME Telehealth Policy
    on March 20, 2020 at 9:03 AM

    The Division of Workers’ Compensation (DWC) appreciates the efforts of the workers’ compensation community to provide care for injured workers during the COVID-19 pandemic. Of paramount importance is that everyone follow all guidance from the Governor as well as federal, state and local public health agencies regarding COVID-19.

    After adherence to all public health guidance and orders, DWC encourages all parties to consider creative solutions appropriate to providing care to injured workers. The increased use of telehealth services for medical treatment may be appropriate.

    The California Business and Professions Code section 2290.5 requires that - "the health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented."

    DWC is currently evaluating the feasibility of telemedicine for QME evaluations and will continue to do so.

    The use of telemedicine for a QME evaluation may be appropriate where all parties agree that there is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), and all parties to the action, including the physician, agree to a telemedicine evaluation in order to resolve this dispute.

    Although DWC is not authorizing any particular course of action, the division recognizes that in this time of medical emergency, creative delivery methods of essential medical treatment and evaluation services may be needed.

    DWC realizes that QME appointments may be affected. When cancelling or rescheduling an appointment, please document the reason in the file and inform all parties as soon as possible. Given the current COVID-19 emergency, QMEs that cancel appointments fewer than 6 business days before an appointment may assert that they had good cause to do so.

    The current state of emergency regarding the COVID-19 pandemic presents serious public health concerns, and parties and evaluators are encouraged to work together to take any action that may be necessary to protect the health of doctors, their staff and injured workers.

    The QME examination scheduled for April 18, 2020 will be postponed. The exam will be rescheduled and a new date will be announced.

  • U.S. Attorney's Office Tracking COVID-19 Scams
    on March 20, 2020 at 9:03 AM

    The U.S. Attorney’s Office will remain vigilant in detecting, investigating and prosecuting fraud schemes related to the COVID-19 crisis.

    There have been reports of individuals and businesses selling fake cures for COVID-19 online and engaging in other forms of fraud; reports of phishing emails from entities posing as the World Health Organization or the Centers for Disease Control and Prevention; and reports of malware being inserted onto mobile apps designed to track the spread of the virus.

    "The pandemic is dangerous enough without greedy lawbreakers seeking to profit from public panic,” said U.S. Attorney Robert Brewer. “This office will make the investigation and prosecution of all criminal conduct related to the current pandemic a top priority. It is important that criminals know that this national crisis offers no safe harbor for them. We will work together to ensure that those who violate federal law will be brought to justice."

    The U.S. Attorney’s Office will work closely with the Department of Justice as well state and local authorities to both ensure that we hear about misconduct as quickly as possible and that all appropriate enforcement tools are available to punish it.

    Additionally the Federal Trade Commission has a page dedicated to Coronavirus Scams - What the FTC is Doing.

    The Electronic Frontier Foundation has created a page - Phishing in the Time of COVID-19: How to Recognize Malicious Coronavirus Phishing Scams.

  • WCAB En Bank Decision Suspends Rules
    on March 19, 2020 at 10:22 AM

    Upon a unanimous vote of its members, the Appeals Board just issued this en banc decision.

    On March 4, 2020, the State of California’s Governor, Gavin Newsom, declared a state of emergency in response to the spread of the novel coronavirus (now known as COVID-19).3 As of the date of this decision, several counties in the State of California, within which district offices of the WCAB are located, have issued a shelter-in-place order in response to COVID-19.

    In light of this state of emergency and pursuant to its authority per WCAB Rule 10370, the Appeals Board is temporarily suspending specific WCAB Rules of Practice and Procedure contained in Title 8 of the California Code of Regulations. (Cal. Code Regs., tit. 8, § 10370.) This suspension is applicable to all district offices in the State and applies to the following Rules:

    -- 1)Cal. Code Regs., tit. 8, former §§ 10562, 10563, 10563.1, now §§ 10755, 10756, 10888 (eff. Jan. 1, 2020): Dismissal of an application or lien claim for failure to appear is suspended.

    -- 2) Cal. Code Regs., tit. 8, former §§ 10860, 10865, 10866, now §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (eff. Jan. 1, 2020): Workers’ compensation judges (WCJs) and arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal.

    -- 3) Cal. Code Regs., tit. 8, former § 10408, now § 10500(b)(6) (eff. Jan. 1, 2020): Suspension of the requirement in the Compromise and Release agreements (DWC-CA forms 10214(c)- (e)) for signatures from two witnesses. Signatures on the forms from all parties may be electronic.

    -- 4) Cal. Code Regs., tit. 8, former § 10500, now § 10628 (eff. Jan. 1, 2020): Suspension of the requirement for service by the WCAB by mail. Service by the WCAB may be made electronically with or without parties’ consent.

    On March 16, 2020, the Division of Workers’ Compensation (DWC) issued Newsline Release No. 2020-18 providing in pertinent part that the DWC’s district offices are currently closed for filing from March 17 through April 3.6 (See Code Civ. Proc., § 12(a); Cal. Code Regs., tit. 8, former §§ 10507, 10508, now §§ 10600, 10605 (eff. Jan. 1, 2020); Pa’u v. Department of Forestry, et al. (2019) (ADJ9159725, ADJ7757931, ADJ9640668). In accordance with this, all filing deadlines are extended to the next day when the district offices reopen for filing.

  • EEOC - Employers May Now Take Employee Temperatures
    on March 19, 2020 at 10:22 AM

    The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees' temperatures to try and ward off the spread of the coronavirus in guidance updated March 18.

    "Generally, measuring an employee's body temperature is a medical examination," the EEOC stated. The Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.

    Because the Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, the respiratory illness caused by the coronavirus, and have issued related precautions, "employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever," the agency stated. And some people with a fever do not have COVID-19.

    Jeff Nowak, an attorney with Littler in Chicago, added that if employers want to take workers' temperatures, they should pay employees sent home for high temperatures to limit any legal risk, if they can afford to do so.

    Employers also should consider what they'd do if employees refuse to have their temperatures taken. Would employers send these workers home without pay?

    The temperature reading should be kept confidential and the person administering the temperature check should be trained on the procedure, Nowak said. He expressed skepticism that a lawsuit would result from taking workers' temperatures.

    Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md., cautioned employers against using oral thermometers, which are more invasive than infrared digital thermometers.

    Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said there may be an obligation to pay employees for time spent waiting to have their temperatures checked.

    When an employee returns to work, under the ADA employers can require a doctor's note certifying his or her fitness for duty, the EEOC said.

    The EEOC guidance also provided that:

    -- An employer may take an applicant's temperature as part of a post-offer, pre-employment medical examination.
    -- An employer may screen applicants for symptoms of COVID-19 after making a conditional job offer.
    -- An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.
    -- An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, the individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer, the EEOC explained.

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