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Author: WorkCompAcademy

Negligence in Obtaining Green Card not Barred by Exclusive Remedy

Michael Reynauds, a British citizen, moved to Los Angeles in 2005 to attend business college. In 2007 he accepted a job withTechnicolor as a “global associate.” Technicolor arranged and sponsored a series of temporary work visas for Michael, allowing him to remain in Los Angeles.He married Fiona, also a British citizen and had two daughters.

His work visa was set to expire in a few years, so Michael asked Technicolor, toward the end of 2013, to sponsor him for a green card. Technicolor’s mobility manager, indicating that the company had agreed to sponsor him. However over the following years Technicolor did not process the paperwork on time.

The Reynauds sued Technicolor for negligence, alleging that Technicolor breached its assumed duty of due care “by failing to initiate the green card process” If not for Technicolor’s breach, the Reynauds “would have obtained a green card and would not have been forced to move back to England in the face of deportation proceedings.”

A Los Angeles jury found that Technicolor had been negligent. Judgment was entered in the amount of $803,838.30 for economic damages and $2,083,920 for noneconomic damages, for a total award of $2,887,758.30.

Technicolor appealed, arguing, first, that the verdict is unsupported by substantial evidence and, second, that the damages awarded for emotional distress are, at least in part, barred by workers’ compensation exclusivity. The Court of Appeal disagreed with each of these contentions and affirmed the judgment in the published case of Reynaud v Technicolor Creative Services USA, Inc.

Though not cited by either party, the Court found DerKevorkian v. Lionbridge Technologies, Inc. (10th Cir. 2008) 316 Fed.Appx. 727 [nonpub. opn.] (DerKevorkian), 2008 U.S. App. `Lexis 24566 to be both factually analogous and persuasive on the applicability of workers’ compensation exclusivity to the Reynauds’ claims.

That case also involved a “dispute arising out of an [employer’s] effort to obtain a permanent resident ‘green card’ for a foreign employee”, Isabelle DerKevorkian, in Colorado. Like Michael’s, DerKevorkian’s temporary work visa was set to expire and she needed to obtain a green card to remain in the United States. Her employer, Lionbridge, maintained a program that assisted employees applying for green cards. To participate, DerKevorkian agreed to work for Lionbridge for two years after obtaining the green card and to use an immigration attorney retained by the company. After numerous complications arose, Lionbridge did not file an application to sponsor the green card, and DerKevorkian left the country.

DerKevorkian sued Lionbridge. The case was ultimately tried to a jury, which returned verdicts against Lionbridge on DerKevorkian’s claims for breach of contract, breach of fiduciary duty, and promissory estoppel and awarded noneconomic damages.

As with California, under Colorado law, workers’ compensation is “the exclusive remedy for personal injuries ‘arising out of and in the course of the employee’s employment.’ [Citation.]” On appeal, while the Tenth Circuit agreed with Lionbridge that DerKevorkian’s depression and anxiety were the type of injuries that could be compensable under workers’ compensation, it disagreed that workers’ compensation exclusivity applied because her “injuries did not occur in the course of or arise out of her employment.”

Rather, the court reasoned, DerKevorkian’s injuries “came about because of a completely separate agreement to assist her with her green card application.

The Court of Appeal in Renaud concluded that workers’ compensation exclusivity is inapplicable here for the same reasons.

DWC Emergency Measures for Med-Legal Evaluations

In line with Governor’s Newsom’s stay-at home order in response to the COVID-19 crisis issued on March 19, the Division of Workers’ Compensation (DWC) encourages primary treating physicians to continue to manage injured workers’ care through telehealth options whenever medically appropriate. Telehealth options include remote visits via video-conferencing, video-calling or similar such technology that allows each party to see each other via a video connection. These are viable alternatives to in-person physical examinations for medical-legal evaluations.

DWC urges all parties to work together with the primary treating physician to anticipate and resolve any potential disputes that may result from a request for a medical-legal evaluation by a Qualified Medical Evaluator (QME).

During the stay-at-home order (up to May 1, 2020), DWC finds that it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary. DWC strongly recommends that all of the following conditions apply to a telehealth evaluation to promote the health and safety of all parties:

1. The injured worker is able to participate in the telehealth evaluation without violating the stay-at-home order.
2. The medical issue in dispute is determined to be essential to an injured worker’s benefits and must be addressed no later than May 1, 2020. The dispute must involve:
— a. An evaluation relating to whether or not the injury is Arising Out of Employment/Course of Employment (AOE/COE),
— b. Termination of an injured worker’s indemnity benefit payments, or
— c. Work restrictions
3. There is written agreement of the injured worker, carrier or employer, and the QME.
4. The telehealth evaluation is consistent with appropriate medical practices and ethical considerations.
5. The QME attests that the evaluation of the injured worker can be done effectively and safely by way of a telehealth evaluation and does not require an in-person physical examination.

DWC encourages all parties to evaluate whether medical-legal evaluations (which involve in-person physical evaluations) should be cancelled or postponed as part of the stay-at-home response to COVID-19. In some instances, a reasonable interpretation of compliance with the stay-at-home order could mean that medical-legal, face-to-face evaluations should be postponed or canceled, if it requires the injured worker or others to travel and interact with anyone outside of their immediate household.

A note on telehealth visits during this emergency: The decision as to when a telehealth visit can be employed must rest on the principles of appropriate and ethical medical practice. An in-person physical examination is necessary if the injured employee’s relevant health issues are such that a physical examination done in person has significant likelihood to contribute to the examiner’s ability to formulate an accurate diagnosis, or to more accurately gauge the outcome of treatment already provided. In such an instance, parties should evaluate whether the evaluation can be cancelled or postponed. If such circumstances do not require an in-person examination, then a telehealth visit should be allowed.

DWC understands that strict adherence to the time limits for scheduling, canceling or rescheduling a medical-legal evaluation, or for serving a medical-legal report, may be impractical or impossible during this public health crisis. During the month of April, DWC encourages parties to agree upon reasonable allowances and agreements.

The issue of whether a medical-legal report is admissible or constitutes substantial medical evidence is determined in accordance with applicable laws and is not altered by these emergency measures.

At the end of April, DWC will reevaluate whether additional emergency responses related to QME telehealth evaluations are necessary due to the COVID-19 crisis.

March 23, 2020 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: WCAB En Banc Decision Suspends Rules, U.S. Attorney’s Office Tracking COVID-19 Scams, San Francisco Acupuncturist Sentenced in Fraud Case, EEOC – Employers May Now Take Employee Temperatures, DWC Announces QME Telehealth Policy, Policy Approaches for Economic Fallout from COVID-19, At Least two States to Provide Corona Virus Comp Benefits, DWC Closes Headquarters and Three WCAB Offices.

DWC Announces WCAB Offices Status Updates

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

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

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.

WCAB Reverses Two Concurrent 100% Awards to Same Worker

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

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 www.StateFundCA.com.

March 16, 2020 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Feds Pursue Another Spinal Implant Company for Kickbacks, L.A. Restaurant Fined $2.1M for Wage Theft, Stanislaus Poultry Worker Convicted in Comp Fraud Case, SB 1039 Claims “Binary” Classification of Workers is “Outdated”, Cal/OSHA Interim Guidelines for Coronavirus Disease (COVID-19), NCCI Reports on Effects of COVID-19 in WC Industry, Coventry Outlines Benefits of a Pharmacy Nurse, Governor Newsom Appoints New DIR Director, Zurich Selects Santa Barbara Company for Fraud Assessments, Updated FAQs For Employers On The COVID-19 Coronavirus.

DWC Announces QME Telehealth Policy

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.