Category: Daily News

The Division of Workers’ Compensation (DWC) has issued a notice of conference call public hearing for a proposed evidence-based update to the Medical Treatment Utilization Schedule (MTUS), which can be found at California Code of Regulations, title 8, section 9792.24.7.

The conference call public hearing is scheduled for Thursday, February 18, at 10 a.m. and members of the public may attend by calling 866-390-1828 and using access code 5497535#. Members of the public may review and comment on the proposed updates. Written comments must be submitted no later than February 18. Please see the proposed regulation page for direction for submitting written comments.

The proposed evidence-based update to the MTUS incorporate by reference the latest published guideline from American College of Occupational and Environmental Medicine (ACOEM) for the following:

— Coronavirus (COVID-19) Guideline (ACOEM December 14, 2020)

The 99 page guideline contains an analysis of the effectiveness of COVID-19 treatment using the following:

— Hydroxychloroquine and Chloroquine.
— Azithromycin.
— Favipiravir.
— lopinavir-ritonavir.
— Remdesivir.
— low-Molecular-Weight Heparin.
— IL-6 Receptor Antagonists (Tocilizumab, Sarilumab, and Siltuximab).
— Baricitinib.
— Casirivimab plus lmdevimab.
— Bamlanivimab.
— Convalescent COVID-19 Antibodies.
— Glucocorticosteroids.
— Interferon Beta-lb.
— Ribavirin.
— Zinc.
— Vitamin D.

The proposed evidence-based update to the MTUS regulations are exempt from Labor Code sections 5307.3 and 5307.4 and the rulemaking provisions of the Administrative Procedure Act. However, DWC is required under Labor Code section 5307.27 to have a 30-day public comment period, hold a public hearing, respond to all the comments received during the public comment period and publish the order adopting the update online.

A California Workers’ Compensation Institute analysis of claims reported to the state Division of Workers’ Compensation as of January 11 shows that the number of COVID-19 claims in the California workers’ compensation system more than tripled between October and November, then jumped another 64.2% to a record 23,483 claims in December. A new projection shows that the December total could climb to 37,573 cases once claims that are yet to be filed or still under investigation are added to the tally.

The latest figures show that after falling to a 6-month low in September, monthly COVID-19 claim counts began trending up in October as the fall wave of coronavirus cases hit the state.

Although not all November and December claims have been reported, the initial data from those months shows that as of the January 11, the DWC had recorded 14,298 COVID-19 claims with November injury dates, and a record 23,483 COVID-19 claims from December.

That year-end surge pushed the number of COVID-19 claims reported to the DWC for accident year (AY) 2020 to 93,470, which is 15.7% of all 2020 claims reported to the state, though with the recent spike, that proportion rose to 28.7% of all work injury claims reported for November and 47.4% of all claims reported for December.

The AY 2020 COVID-19 claim count includes 464 death claims — up 21.7% from the 381 death claims reported as of December 28 — which means COVID-19 death claims accounted for nearly half (48.0%) of the 966 work-related death claims recorded by the state for AY 2020.

Additional year-end claims continue to be filed, and CWCI’s projected COVID-19 claim count based on historical claim development that accounts for delays in COVID-19 claim reporting estimates that ultimately there will be 16,872 claims from November, and 37,573 claims from December, far surpassing the previous monthly record of 15,537 COVID-19 claims projected for July.

With hundreds of thousands of California jobs lost during the pandemic, and many workers in the state continuing to work remotely, DWC has recorded only 594,840 work injury claims for AY 2020, down 13.5% from 667,942 claims for AY 2019, despite the addition of the 93,470 COVID-19 claims.

However, the year-over-year decline in claim volume is only 6.5% if CWCI’s updated projection of the ultimate claim count for AY 2020 is used.

Other recent results show that health care workers’ share of the COVID-19 claims has declined from 44.7% in the first quarter of 2020 to 28.8% in the fourth quarter; males and younger workers continue to account for a growing share of the COVID-19 claims; and COVID-19 claim denial rates hit a 6-month high of 36.9% in October, though the denial data on claims from the last two months of 2020 is too green to be reliable.

Denial rates vary significantly by industry, with October claim denial rates ranging from 12.8% for utility workers to 66.8% for transportation workers. Many COVID-19 claims are denied because the claimants do not test positive for the virus.

The latest results on California workers’ comp COVID-19 claims are from the January 11 update to CWCI’s COVID-19/Non-COVID-19 Interactive Claim App, which integrates data from CWCI, DWC, and the Bureau of Labor and Statistics to provide information on California work injury claims from comparable periods of 2019 and 2020. The app is updated biweekly and is available to the public here.

A major labor union and several ride-hailing drivers are suing to overturn a newly passed ballot measure classifying gig workers as independent contractors in California.

The Washington Post reports that the groups filed suit Tuesday in California’s Supreme Court, alleging Proposition 22 violates the state constitution and limits the power of state legislators to implement certain worker protections they are authorized to grant.

The suit, filed by Service Employees International Union and a group of ride-hailing drivers, asks the state Supreme Court to invalidate Prop 22, which cemented gig driver’s status as independent contractors after more than 58 percent of voters supported it in November.

They argue the measure limits state legislators’ ability to implement a system of workers’ compensation in defiance of their constitutional authority to do so. It also argues that the proposition unconstitutionally defines what comprises an amendment to the measure, as well as violating a rule limiting ballot measures to a single subject to prevent voter confusion.

The Protect App-Based Drivers and Services coalition, which represents gig companies such as Uber, Lyft and Doordash, criticized the lawsuit in a statement attributed to Uber driver Jim Pyatt, an activist who has worked in favor of Prop 22.

The groups that filed the suit, which also include SEIU California State Council, took particular issue with the measure’s inclusion of a provision requiring a seven-eighths legislative supermajority to amend and even define what constitutes an amendment. That authority, they say, is vested with the courts.

The lawsuit blasts the measure’s drafters as having “impermissibly” usurped this Court’s authority to ‘say what the law is’ by determining what constitutes an ‘amendment.’”

Further, they argued, they violated the single-subject rule by “burying these cryptic amendment provisions on subjects not substantively addressed in the measure, and in language that most voters would not understand.”

They said they were suing in the state Supreme Court rather than a lower court because the issues were of broad public importance and required a speedy resolution to minimize harm to gig workers.

Limin Gao filed an Application for Adjudication, alleging a psyche injury while employed by Chevron from May 2, 2014 to July 2, 2015.

The matter proceeded to trial on March 10, 2020. Gao provided in-person testimony, both direct and on cross-examination, flying in from her current residence in Ontario, Canada in order to do so.

Because the trial could not be completed in one session, the trial was continued to June 9, 2020, with in-person testimony contemplated from several defense witnesses.

In light of the Covid-19 pandemic, WCAB District Offices stopped conducting in-person trials as of March 16, 2020. Beginning May 4, 2020, WCAB District Offices began to hear trials on the case-in-chief remotely, via phone link.

On May 7, 2020, the State of California’s Governor, Gavin Newsom, issued Executive Order N-63-20 which essentially suspended the requirement that a witness testify in person under certain conditions and circumstances.

As the June 9, 20201 trial date approached, the parties made clear they had very different ideas about how the case should proceed. Applicant favored proceeding via remote testimony, while defendant objected, requesting a continuance until in-person testimony could be elicited from its three rebuttal witnesses.

The WCJ issued the Order Continuing September 1, 2020 Trial, stating that due process required continuing the trial to allow for in-person testimony from defendant’s witnesses, because applicant had previously given in-person testimony. Limin Gao Petitioned for Removal to have the WCAB rule on the legality of the WCJ order continuing the hearing. The panel reversed and remanded in the significant panel decision of Limin Gao v Chevron Corporation.

The WCAB ruled that “each case must be resolved according to its own particular circumstances, and it would therefore be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.”

“However, in consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.”

Distribution of the COVID vaccines, which in California is done in several phases and prioritizes first doses for health care workers and people at risk of becoming severely ill from the virus, has lagged other jurisdictions by a considerable margin.

Nationwide, about 6.7 million Americans have received a vaccine dose according to the Centers for Disease Control and Prevention. The CDC has projected that close to 90 million people will be vaccinated by March, still under one third of Americans and far less than the 70% officials say is needed to reach herd immunity.

In California, vaccine rollout has been beset by a number of issues that bring into focus challenges that come with such a gargantuan effort.California has received just over 2 million vaccine doses but only administered about 652,000 of them as of Jan. 8.

Vaccine doses are also lower than anticipated, with officials estimating they won’t have enough doses to immunize “most” residents of its 58 counties until the summer.

Lags are also tied to ultra-low temperature storage requirements for the Pfizer vaccine, a shortage of vaccination sites and staff to administer doses and a delay in setting up systems to track who is immunized and where they live.

The Golden State has the nation’s highest total of people infected with Covid-19, with more than 2.5 million cases. As of Jan. 7, health departments statewide have reported 73,862 positive cases among health care workers and 276 deaths.

California recently told local health departments and providers to expand vaccine eligibility by offering doses to community health and testing site workers, public health field staff and dental clinic and pharmacy personnel.

More than 586,000 health care workers in California have received the first dose of a Covid-19 vaccine, according to state data.

The new guidance also says once demand has subsided from the first priority group, doses should be allocated to people age 75 and older, childcare workers, staff in emergency response and food service and educators.

Los Angeles County, where about 1 in 5 people being tested for Covid-19 are currently testing positive, is the largest from a cluster of Southern California counties that has received about 256,000 doses from the state, the largest quantity of any region. The area includes Orange, San Luis Obispo, Santa Barbara and Ventura counties.

Still, there aren’t enough vaccine doses currently available to immunize even half of the county population by spring, Dr. Paul Simon, chief science officer at LA County’s Department of Public Health, said Friday.

The county said in a statement Friday it opened 19 vaccination sites this week and will open 75 more by next week.