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Author: WorkCompAcademy

WCAB Orders Additional Emergency Filing Rules En Banc

The WCAB just issued its second En Banc decision modifying the rules that apply to litigation management.

WCAB Rule 10940(b) states in relevant part: “No documents sent directly to the Appeals Board by fax or e-mail will be accepted for filing, unless otherwise ordered by the Appeals Board.” (Cal. Code Regs., tit. 8, former § 10845(c), now § 10940(b) (eff. Jan. 1, 2020), emphasis added.) To the extent that WCAB 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. Documents that may be emailed include, but are not limited to, correspondence relating to a petition for reconsideration that has been granted for further study by the Appeals Board.

Documents sent by email should include the information required for pleadings by WCAB Rule 10520 and an email address for the sending party. (Cal. Code Regs., tit. 8, former § 10498, now § 10520 (eff. Jan. 1, 2020).) Documents sent by email should otherwise comply with the WCAB’s Rules. Documents may be sent by email to WCABEmergencyBox@dir.ca.gov and will be responded to per the Appeals Board’s normal operating procedures.

Petitions for reconsideration, removal, or disqualification and answers should still be filed in EAMS or with the district office having venue pursuant to WCAB Rule 10940(a). (See Cal. Code Regs., tit. 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).)

Administrative Director (AD) Rule 10205.7(c) provides that “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“. (Cal. Code Regs., tit. 8, § 10205.7(c), emphasis added.)

Although ordinarily prohibited by the AD’s Rules, the Appeals Board hereby orders that specific documents may be by sent by email directly to the district offices. The district offices may accept by email solely documents subject to a statutory time limit where the filing party could not otherwise e-file, JET file or file the document by mail. Information regarding email addresses for filing documents by email with the district offices is available on the DWC’s webpage: https://www.dir.ca.gov/dwc/dir2.htm.

All parties are reminded that ex parte communications are prohibited per WCAB Rule 10410 and any document sent to the district offices or the Appeals Board by email or any other method must also be served on all parties to the matter. (Cal. Code Regs., tit. 8, former § 10324, now § 10410 (eff. Jan. 1, 2020).)

These orders will remain in effect until further notice.

Newsom Say California Has Adequate COVID-19 Resources

As the total number of coronavirus cases in California topped 16,000, Gov. Gavin Newsom said Monday he is confident the state is building up its number of ventilators, hospital beds and workforce to meet the demand of a still-to-come surge in patients that he projects won’t peak until May.

Newsom is so confident, in fact, that he announced the state was donating 500 ventilators to the Strategic National Stockpile to deploy in states that need them more, like New York, which has already received ventilators from Oregon, Washington and from China.

The Mercury News story reports that as of Monday evening, California had recorded 16,309 positive COVID-19 tests – a 46% increase since Friday, and 387 deaths, according to data compiled by this news organization.

The University of Washington’s Institute for Health Metrics and Evaluation now anticipates that California will reach its peak use of resources – total beds, ICU beds and ventilators – on April 14. That’s almost two weeks earlier than what it forecast a week ago, based on a larger sampling of data and lower ratios of hospital admissions to deaths.

The good news: Given the state’s current resources, that model predicts that California will have a surplus of all the necessary resources to meet the surge in coronavirus patients.

Newsom and his team of health professionals repeated on Monday they are still preparing for the state to reach its capacity of permanent hospital beds – 50,000 – in mid-May.

John E. Swartzberg, a professor of infectious diseases at the University of California Berkeley, said his “best guess” was that the Bay Area will see peaks in hospital patients in about two and a half weeks – or toward the end of April. But he admitted, no one can be certain.

During a news conference on Monday, Newsom said that the number of people hospitalized due to coronavirus had increased 4.9% overnight to 2,509 and the number of patients in ICU beds has increased by 4.3% to 1,085.

But so far, the state has room for more. There are 7,345 ICU beds in California, of which 1,498 are in the Bay Area, according to a recent analysis by Kaiser Health News.

Newsom has declared a goal of identifying 50,000 additional hospital beds to complement the 70,000 licensed beds that already exist. The state has asked hospitals to identify 30,000 beds that could be repurposed to serve a surge in COVID-19 patients and is working with partners to find another 20,000.

And the rush to add more medical equipment to face a surge is continuing. The state has increased its number of ventilators from about 7,600 to more than 11,000 in recent weeks. It has also secured 4,316 additional hospital beds – a fourth of the overall goal – by transforming the Kings’ former arena and the Santa Clara Convention Center into temporary medical facilities for acute patients and taking over Seton Hospital in Daly City.

WCAB Updates Modified Calendar and Filing Procedures

The Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) has announced an update to the modified calendar and filing procedures announced on March 16, 2020. This update to the procedures continues to prioritize the health and safety of staff and the public to help prevent the spread of COVID-19.

The updated hearing and filing procedures are detailed below:

Hearing Procedures April 6 through April 10

— DWC will continue to 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.
— Parties are required to adhere to social distancing guidelines when visiting DWC district offices.

Filing Procedures April 6 through April 10

— District offices will remain closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 13.
— DWC will not accept walk-through documents, walk-in filings, or in-person requests.
— Parties may utilize the Electronic Adjudication Management System (EAMS) to file documents online. Parties may also mail settlement documents or petitions to the district office where the case is filed.
— Refer to the district office page for e-mail and other contact information.
— Additional information will be posted on the DWC website to assist parties with filing settlement documents in EAMS. Hearing Procedures Effective April 13
— DWC conferences including mandatory settlement conferences, priority conferences, status conferences and all expedited hearings will be heard telephonically.
— All DWC judges in California will hear cases by an individually assigned conference line. These conference lines are available toll-free. A list of all conference line numbers will be posted on DWC’s website prior to the effective date.
— Parties should call the conference line for the judge in front of whom the case is set, at the designated hearing time listed on the hearing notice. When prompted, parties should enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call.
— All trials and lien conferences will be continued until further notice. District offices will hold no in-person hearings.

Filing Procedures Effective April 13

— DWC will reopen for filing purposes.
— DWC will only accept filing by e-filing via EAMS, JET file or by mail.
— DWC will not accept walk-in filings, walk-through documents or in-person requests at this time. Injured workers who are unable to file
utilizing these options or need assistance may contact DWC’s call center at 909-383-4522.

Effective Immediately

— Until otherwise notified, DWC will accept an electronic signature on any settlement documents, applications, pleadings, petitions or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules.

The WCAB Commissioners’ office is closed to the public for in-person inquiries and requests until further notice.

OSHA Issues Respirator Interim Guidance

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim enforcement guidance to help combat supply shortages of disposable N95 filtering face piece respirators (N95 FFRs). The action marks the department’s latest step to ensure the availability of respirators and follows President Donald J. Trump’s Memorandum on Making General Use Respirators Available.

Due to the impact on workplace conditions caused by limited supplies of N95 FFRs, employers should reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 respirators.

If respiratory protection must be used, employers may consider use of alternative classes of respirators that provide equal or greater protection compared to an N95 FFR, such as National Institute for Occupational Safety and Health (NIOSH)-approved, non-disposable, elastomeric respirators or powered, air-purifying respirators.

When these alternatives are not available, or where their use creates additional safety or health hazards, employers may consider the extended use or reuse of N95 FFRs, or use of N95 FFRs that were approved but have since passed the manufacturer’s recommended shelf life, under specified conditions.

This interim guidance will take effect immediately and remain in effect until further notice. This guidance is intended to be time-limited to the current public health crisis. Visit OSHA’s Coronavirus webpage regularly for updates.

For further information about COVID-19, please visit the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

Thousands of Payroll Bail Out Loans Fund on First Day

President Donald Trump’s Paycheck Protection Program (PPP) through the Department of Treasury and Small Business Administration has already on its first day pushed out more than $757 million to small businesses nationwide mostly through community banks.

The Paycheck Protection Program is part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This is a nearly $350-billion program intended to provide American small businesses with eight weeks of cash-flow assistance through 100 percent federally guaranteed loans.

A senior Treasury Department official reported that as of 11:00 a.m. eastern time, a total of 1,926 loans were given out through 245 different banks for a total of 756,985,76.

Most of the big banks like JP Morgan Chase, Wells Fargo, and Citigroup did not have programs online – only Bank of America did – by this time, so this means community banks nationwide are the ones stepping up to push the money out to small businesses affected by the coronavirus crisis.

“When the unprecedented PPP loan program for America’s small businesses went live in the early morning hours of April 3, the community banks were the ones ready to go,” the senior Treasury Department official told Breitbart News. “Unlike the big banks that are coming online later in the day, the community banks were up and running and ready to serve their small businesses. America’s community banks are the real heroes.”

As community banks are the ones stepping up to help small businesses at such a rapid pace on the first day of the program, this fact counters the narrative from some on the left and in establishment media that somehow the efforts of Trump, Treasury Secretary Steven Mnuchin, and the broader administration were designed to only help big corporate cronies.

Friday, as Mnuchin and Small Business Administration administrator Jovita Carranza announced at the White House Coronavirus Task Force briefing on Thursday night, is the first day these funds are going out to small businesses nationwide through banks across the country. The Paycheck Protection Program, or PPP, passed as part of the $2.2 trillion phase three coronavirus relief package that Congress passed last week.

Since this money is going directly to small businesses across the country, and since it is mostly flowing through small community banks, it is significantly boosting communities and main street across the country rather than Wall Street. “This is the Main Street rescue, not a Wall Street bailout” the senior Treasury Department official added.

DWC Adjusts DMEPOS and ASC Sections of Fee Schedule

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

The Hospital Outpatient Departments and Ambulatory Surgical Centers fee schedule update order adopts the following Centers for Medicare & Medicaid Services (CMS) Medicare changes:

— The CMS Medicare Hospital Outpatient Prospective Payment System (OPPS) April 2020 Addendum A quarterly update
— The CMS Medicare OPPS April 2020 Addendum B quarterly update
— The CMS Ambulatory Surgical Center Payment System, April 2020 ASC Approved HCPCS Code and Payment Rates, Column A entitled “HCPCS Code” of “Apr 2020 ASC AA” and Column A entitled “HCPCS Code” of “Apr 2020 ASC EE”
— Certain sections of the CMS Medicare OPPS April 2020 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V21.1 R1 Apr 2020 quarterly update
— CMS April 2020 Update of the Hospital Outpatient Prospective Payment System (OPPS), Change Request (CR) 11691 (March 25, 2020), Transmittal R10013CP

The Division of Workers’ Compensation (DWC) has also posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule.

The orders adopting the OMFS adjustments is effective for services rendered on or after April 1, 2020 and is posted on the DWC website.

OSHA Declares Coronavirus to be a Recordable Event

Earlier this month, the Occupational Safety and Health Administration declared that coronavirus was a recordable injury – meaning an employer would have to notify the federal safety agency when a worker caught the disease at work- and issued guidance to that effect.

OSHA recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

— The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
The case is work-related, as defined by 29 CFR 1904.5; and
— The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

Bloomberg news reports that safety attorneys said the guidance left confusion about how to prove whether a worker actually contracted the virus on the job.

Health-care workers and emergency responders will benefit from rules eased in some states around workers’ compensation that will allow them to collect benefits if they can prove they caught Covid-19 on the job. Some say essential workers like grocery store employees and delivery workers also should qualify.

But employers need to be aware of the changing rules, and be prepared for the likely end result – skyrocketing premiums.

State workers’ compensation boards around the country are amending rules for benefits payouts to include health-care workers exposed to the virus and then quarantined.

Attorneys are keeping a close eye on the questions, such as who should be eligible to receive benefits, how does a worker prove they caught Covid-19 on the job, and how will an influx of successful claims affect businesses’ premiums to insurance carriers.

“If everybody who gets sick on the job is able to file a compensation claim and everyone is successful, it may bankrupt a company,” said Michael Duff, a workers’ compensation professor at the University of Wyoming.

WCAB Transitions to Free Teleconference Hearings

Robert Rassp, the Los Angeles District Office Presiding Administrative Law Judge just made the following announcement to his staff:

Dear LAO Judges

I have some good news for all of us. Effective very soon, we will inaugurate a new program statewide to replace Court Call. I am calling the program for us “LAO LIVE.” First and foremost, this program will be free to parties who appear at the WCAB District Offices. This is how the program will work:

1. Each WCJ will get a new conference phone number issued by AT&T (there are 175 conference lines ordered)
2. Each WCJ will have a PIN to access the conference line
3. The parties will have a conference code that links to a WCJ’s phone conference line.
4. You will be able to conduct MSCs, STCs, PCs, EHs, and some trials on this conference call line.
5. You or your SLT can first obtain everyone’s names and email addresses for your docket. You can conduct hearings like in Superior Court or you can have your SLT obtain the names, email addresses of parties appearing in advance of the conference calendar so you can have your SLT email parties for each case and have them call in one at a time. Either way will work.
6. For your Conference calendars you conduct them the same way you have conducted hearings using Court Call so you can have everyone put their phones on mute while you call your calendar. Or you can conduct the hearings by having either you or your SLT telling people via email to call in one at a time. You can have meaningful discussions about cases like you would as if the parties were physically in your courtroom standing in line to speak to you.
7. You should be able to conduct EHs or simple trials (such as submissions on the record) on the phone with exhibits identified via the EAMS printout and the PTCS being completed before a hearing and at the time of the hearing to verify any changes in Stips and Issues per 8 CCR 10517 (formerly 10492)
8. You will be able to simplify issues for trials and eventually continue trials until you can do a face to face trial when the pandemic is under control.
9. Applicants who are not represented will have to mail their exhibits to the District Office for scanning and uploading into EAMS

The tentative launch date for this is in two weeks. So next week (April 6) we will continue to use Court Call. Hopefully we can roll out the program on April 13. If you have questions, please feel free to email me back even though today is a holiday. Or you can text me on our group text.

Very truly yours,

Robert G. Rassp
Presiding Administrative Law Judge
Workers’ Compensation Appeals Board Los Angeles
(213) 576-7383

Floyd Skeren Announces Follow Up – Free HR Webinar on COVID–19

Please join Bernadette M. O’Brien, ESQ., SPHR, of Floyd Skeren Manukian Langevin, along with Senior Partners John B. Floyd, Esq., and Amanda A. Manukian, Esq., with special guest Rene Folse, J.D., PH.D. and Brittany Cufaude, CEO of Joyful Classrooms for updated information on important COVID-19 topics for employers, human resources administrators, and risk managers.

This is a free follow up to our webinar last Friday with updated information on dealing with COVID-19 in the workplace.  

Featured Topics Include:

— The latest in workplace laws that may be triggered by COVID-19;
— A review of potential workers’ compensation issues related to COVID-19, including:
—- A possible presumption that a COVID-19 exposure or positive test is employment-related for essential workers; will there be a surge in COVID-19 WC claims;
—- 132a claims and discrimination against an infected employee or an employee who is perceived to have COVID-19; defense strategies including “ubiquitous vs. peculiar risk doctrine”;
—- Practical guidance for claims adjusters and employers on handling COVID-19 claims;
— The most up to date information on what leave an employee may be entitled to who is ill, or who needs to care for a family member who is ill with COVID-19;
— What does the new federal law, “Families First Coronavirus Response Act”, provide for eligible employees in terms of paid sick leave/family and medical leave;
— What leave may be required for parents with children home from school;
— Can employers require that an employee’s temperature be taken before beginning their work shift;
— Can employers send employees home who appear sick with a cold or flu;
— Can employers require a release to return to work from an employee, if COVID-19 is suspected upon employees request to return to work;
— If the workforce shuts down, must employees be paid, and what about benefits;
— Information on workers who are 65 and older or at a higher risk for exposure to COVID-19;
— Coronavirus fear: guidance on responding to employees who request to work remotely or not return to work due to concerns that a co-worker has COVID-19;
— Considerations for a remote workforce;
— Furloughs versus layoffs, the WARN Act and CARES;
— Information and examples for employers and employees about educational and training tools for children at home due to school closures.

REGISTER TODAY!

DATE: Friday, April 3rd, 2020 TIME:10:00 am – 12:00 pm Pacific Standard Time
PRICE: – FREE!
Contact:  Rebecca.zandovskis@floydskerenlaw.com for assistance.

Bernadette M. O’Brien is a Partner at Floyd Skeren Manukian Langevin, LLP, and an SPHR/SHRM-SCP certified Human Resources Consultant.

Ms. O’Brien is author of the LexisNexis publication Labor and Employment in California: A Guide to Employment Laws, Regulations and Practices, co-author of California Leave Law: A Practical Guide for Employers, and co-author of California Unemployment Insurance and Disability Compensation Programs.

DWC Adopts Covid-19 HCPCS Level II Testing Codes

The Administrative Director of the Division of Workers’ Compensation has ordered that the pathology and clinical laboratory portion of the Official Medical Fee Schedule adopted in title 8, California Code of Regulations, section 9789.50, is adjusted to conform to changes to the Medicare payment system that were adopted by the Centers for Medicare & Medicaid Services (CMS) for services rendered on or after April 1, 2020.

The update includes fee schedule changes identified in CMS Transmittal 4541, Change Request CR11681, which may be accessed on the Medicare website.

The CMS has adopted two new Health Care Common Procedure Coding System (HCPCS) Level II codes, U0001 and U0002, for use in diagnosing the novel corona virus, Covid-19. The HCPCS Level two codes U0001 and U0002 are adopted for services rendered in the workers’ compensation system.

HCPCS Codes U0001 and U0002 are listed in the CMS 20CLABQ2 file, but fees are not set forth as National payment amounts are not yet set. In the meantime, Medicare uses the fees determined by the local Medicare Administrative Contractor as the Medicare rate. These fees are based upon the CMS’ Medicare Administrative Contractor’s local rate for California as published by CMS in the document entitled “Medicare Administrative Contractor (MAC) COVID-19 Test Pricing March 12, 2020”.

For workers’ compensation, the maximum reasonable fee is 120% of the Medicare rate pursuant to Labor Code section 5307.1.

Code: U0001
Short Descriptor: 2019-nCoV diagnostic P
Long Descriptor: CDC 2019 Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel
Medicare Fee: $35.91
Maximum workers’ compensation fee: $43.09

Code: U0002
Short Descriptor: COVID-19 lab test non-CDC
Long Descriptor: 2019-nCoV Coronavirus, SARS-CoV-2/2019-nCoV (COVID-19), any technique, multiple types or subtypes (includes all targets), non-CDC
Medicare Fee: $51.31
Maximum workers’ compensation fee: $ 61.57