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Category: Daily News

Pressure Building for Another Decennial Workers’ Comp Reform

Annually, California employers spend more than $15 billion for insurance to cover work comp claims, not counting billions more that large employers set aside in self-insurance funds for their state-mandated coverage.

That’s big money by anyone’s standards, which explains why there’s more or less perpetual political jousting over the rules governing who is eligible for benefits and what they can receive.

And according to the CalMatters commentary written by Dan Walters and published by the VC Star, the politics of work comp have followed a pattern for the last half-century. Roughly once a decade, a majority of the contending interests – employers, their insurers, labor unions, medical care providers and lawyers who specialize in making claims – agree of some “reforms” that are then muscled through the Legislature.

It’s an exercise in pure power politics that benefits the dominant coalition and always hits the minority faction with new costs and/or new restrictions.

The last time it occurred was a decade ago when a coalition of employers, unions and insurers, with the blessing of then-Gov. Jerry Brown, tightened up medical care that both lowered employers’ costs and provided funds for cash benefit increases.

It worked as intended, or perhaps more than intended, because work comp insurance premiums, which averaged about $3 per $100 of payroll at the time, have since dropped by nearly half to $1.76, according to a recent report from the Workers’ Compensation Insurance Rating Bureau.

California’s premiums have been among the nation’s highest, according to the most recent state-by-state compilation by the Oregon Department of Consumer and Business Services, the recognized authority on such data. With California’s recent reductions, it’s now somewhere in the middle.

That’s been good news for California employers, but grates on medical care providers who dislike the previous overhaul’s restrictions and on labor unions and work comp lawyers, who believe that employers got the best of the deal.

Pressure has been building for another decennial “reform” but Gov. Gavin Newsom has reportedly urged the contending factions to cool it until the effects of the COVID-19 pandemic have been fully understood. The insurance rating bureau says that more than a quarter-million claims for pandemic-related disabilities have been made, with more than half coming from the health care and public safety sectors.

During the pandemic, the Legislature and Newsom issued some special rules making it easier to claim benefits, and their effect on the system’s finances is still being calculated.

Meanwhile, under pressure from unions, the Legislature has been chipping away at aspects of the last systemic overhaul – particularly on what’s called “presumption.”

Certain workers – such as police and fire personnel – can claim benefits for specified illnesses and injuries without having to prove that they are job-related and bills have been expanding both the categories of workers and the types of disabilities that qualify.

For instance, three years ago legislation declared that post-traumatic stress disorder is presumed to be job-related for police officers and local firefighters and this month, Newsom signed a bill extending that presumption to state-employed firefighters and dispatchers for public safety agencies.

The proliferation of such bills is increasing the pressure for a new systemic overhaul, but the makeup of the dominant coalition and what changes it will seek are still very unsettled.

Newsom Signs Law Inspired by Comp Carrier’s $2M CDI Lobby Scandal

Governor Newsom signed AB 1783, a law inspired by a $2 million bounty that was to be paid to influence the California insurance commissioner, Ricardo Lara, in a transaction involving Applied Underwriters proposed sale. The new law expands California’s lobbying laws to limit this practice.

Companies and interest groups spend hundreds of millions of dollars each year to lobby lawmakers and the governor on issues related to proposed laws and regulations. Most of the money is subject to strict lobbying disclosure rules, including that the people paid to lobby register with the state and that the companies that pay them file regular public disclosures.

An investigation by The Sacramento Bee, however, revealed that loopholes allowed some companies to pay bounties called “success fees” to influence some decisions by state officials without having to report them.

A lawsuit by former California lawmakers Fabian Núñez and Rusty Areias revealed one such payment and provided details on how they work. Nothing in California law required public disclosure of such an incentive. It came to light only because of this publicly accessible civil lawsuit.

The former lawmakers who left public service for private consulting say they were hired by a workers compensation company to convince the Department of Insurance to allow an acquisition deal to proceed. If they succeeded, they say they were promised a $2 million bounty fee.

In their lawsuit, Areias and Núñez’s former firm Mercury say Applied Underwriters and two men seeking to acquire parts of the company hired the former lawmakers in 2019 to help close out the acquisition deal.

Núñez and Areias were tasked with helping the company either secure approval from the California Department of Insurance for the deal or get the department to agree to let the company re-domicile its subsidiary. If they succeeded, they would get $1 million, according to a written contract submitted as evidence in court filings. If they did not, they would not be paid, and the CEO of Applied Underwriters would lose a $50 million deposit he had made contingent on the acquisition deal receiving regulatory approval, according to the lawsuit.

In the suit, they allege that the company and the men they are suing later upped the success fee to $2 million.

Applied Underwriters argued in court filings it does not owe Núñez and Areias money because they did not meet the terms in their contract.

Under existing law, lobbyists are prohibited from charging success fees for achieving a desired outcome for their clients. But because Núñez and Areias’ work wasn’t technically lobbying, they were able to negotiate a bounty fee and would not have to disclose it to the public. Once this was discovered, the scandal attracted much media attention, and more litigation under the Freedom of Information Act by Consumer Watchdog. And ultimately to AB 1783 which claims to limit or put restrictions on this practice.

The Political Reform Act of 1974 was created by California voters when they approved Proposition 9, in 1974. Existing provisions of the PRA impose requirements on lobbyists and lobbyist employers involved in administrative actions, and generally define “administrative action” to mean, among other things, the proposal, drafting, development, consideration, amendment, enactment, or defeat by any state agency of any rule, regulation, or other action in any ratemaking or quasi-legislative proceeding.

Bob Stern, who co-wrote the California lobbying laws approved by voters in 1974, said he doesn’t know how often consultants in Sacramento charge success fees to influence decisions like the one before the state Department of Insurance because there’s no required disclosure.

The new law created by AB 1783 expands the definition of “administrative action” under the Political Reform Act of 1974 to include any decision or approval by the Insurance Commissioner or the Director of the Department of Managed Health Care under these provisions. Both are required to approve certain transactions involving insurers and health care service plans, respectively. The changes in the law appear in Section 82002 of the Government Code.

Numerous legislative attempts were unsuccessfully made over the years to close these loopholes.

One of then, AB 1200 (Gordon) of 2016, would have provided that communicating with state governmental officials in order to influence state governmental procurement, as defined, could result in a person being considered a “lobbyist” under the PRA. It was vetoed by Governor Brown. In his veto message, he stated “[g]iven that the laws regulating state procurement are voluminous and already contain ample opportunity for public scrutiny, I don’t believe this bill is necessary.”

WCIRB Publishes Aggregate Medical Payment Trends 2021 Update

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released California Workers’ Compensation Aggregate Medical Payment Trends – Updated through Calendar Year 2021.This report compares medical payment information from 2019 through 2021. The annual report analyzes medical payment and utilization trends by provider type, service locations and different service types.

Key findings from the report include:

General Trends in the Medical Payments and Transactions in 2021

– – Overall medical payments per claim increased significantly, mostly driven by increases in payments per transaction.
– – The increase in payments per transaction was largely because of the 2021 fee schedule updates to Medical-Legal and Evaluation and Management services.
– – Utilization of telehealth services continued to decline in 2021 but still remained at a much higher level than during pre-pandemic periods.

Fastest Growing Physician Services Procedures and Therapeutic Group

– – Office or other outpatient service procedures continued to grow and are the fastest growing physician service in 2021.
– – Use of Analgesics Anti-Inflammatory increased more significantly than that of any other therapeutic group.

Impacts of Fee Schedule Updates to Medical-Legal and Evaluation and Management Services

– – The 2021 Medical-Legal Fee Schedule drove up average payments per Medical-Legal service as well as medical payment share for Medical-Legal services in 2021 compared to the prior two years.
– – Similarly, the 2021 update to the reimbursement allowance for Evaluation and Management services led to a large increase in the payments per transaction and payment share for Evaluation and Management services in 2021 compared to the prior two years

The report is available in the Research section of the WCIRB website.

PAGA Case Proceeds Despite Arbitrator Finding Against Employee

The June 2022 U.S. Supreme Court decision in Viking River Cruises, Inc. v. Moriana – 142 S.Ct. 1906 – was a landmark decision in favor of California employers, on the vigorously contested issue of the right to agree to arbitration of labor code disputes with employees. But many employment law attorneys predicted that California appellate courts would limit Viking River in various ways, and tip the scales back in favor of employees. A new California appellate case partially published this week, may be the first case, of potentially many,in that anticipated scale tip.

Eleni Gavriiloglou brought a civil action against her former employer Prime Healthcare Management. She alleged individual claims for damages based on several Labor Code violations, such as overtime pay etc., and a representative claim for civil penalties for Labor Code violations under the Private Attorneys General Act (Lab. Code, § 2698 et seq.), (PAGA).

Gavriiloglou had signed an arbitration agreement, thus the trial court compelled her to arbitrate her non-PAGA claims and stayed her PAGA claim while she did. The parties selected an arbitrator jointly.The arbitrator found that the alleged Labor Code violations had not occurred.

The trial court then granted judgment on the pleadings against Gavriiloglou on her PAGA claim; it ruled that the arbitrator’s findings established that she was not an “aggrieved employee” within the meaning of PAGA, and therefore that she lacked standing to bring a PAGA claim.

The Court of Appeal reversed and held that the arbitration did not bar the PAGA claim because Gavriiloglou was acting in different capacities and asserting different rights in the partially published case of Gavriiloglou v Prime Healthcare Management Inc., E076832 (September 2022).

Gavriiloglou made four arguments in her favor including that preclusion did not apply because she was acting in different capacities in the arbitration and in the litigation of the PAGA claim. The Court of Appeal did not discuss three of the four, since they said that this argument alone was dispositive of the issue.

Prime cited the U.S. Supreme Court decision in Viking River Cruises, Inc. v. Moriana – 142 S.Ct. 1906 – which they say distinguished between an “individual PAGA claim,” which it defined as a claim for Labor Code violations suffered by the plaintiff employee, and a “representative PAGA claim,” which it defined as a claim for Labor Code violations suffered by other employees. (Id. at p. 1916.) It then held that the Federal Arbitration Act preempts a state-law rule that precludes the arbitration of an individual PAGA claim separately from a representative PAGA claim. (Id. at pp. 1923-1926.).

In Prime’s view, Viking River “explicitly recognizes an individual claim under PAGA . . . .” The Court of Appeal disagreed and responded by saying this “is mere wordplay. What the Supreme Court called, as shorthand, an “individual PAGA claim” is not actually a PAGA claim at all. It would exist even if PAGA had never been enacted. It is what we are calling, more accurately, an individual Labor Code claim.”

Prime also argues that reversing the trial court conflicts with the 2009 California Supreme Court decision in Arias v. Superior Court, 46 Cal.4th 969.  Prime characterizes Arias as holding “that issue preclusion can apply to the result of the PAGA action even as to non-PAGA claims. Arias held that “with respect to the recovery of civil penalties, nonparty employees as well as the government are bound by the judgment in an action brought under the act.” In other words, the PAGA plaintiff’s capacity is not controlling.” The Court of Appeal rejected this argument as well.

The Court of Appeal said that according to the Restatement (Second) of Judgments, section 36(2), “[a] party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.” And “California follows this rule.”

In conclusion the Court of Appeal said “in the arbitration, Gavriiloglou was litigating her own individual right to damages for Labor Code violations, whereas in the present PAGA action, she is litigating the state’s right to statutory penalties for Labor Code violations. It follows that the arbitrator’s findings cannot have preclusive effect.”

On September 15, 2022, the California Labor Commissioner requested publication of the non-published opinion which was originally filed this August. The Court of Appeal agreed that portions of the opinion meet the standard for publication as specified in California Rules of Court, rule 8.1105(c). Hence this case is partially published so that certain provisions become controlling California law.

California Uses the AMA Guides 5th Edition – Which is Two Decades Old

Back on April 19, 2004, when Senate Bill 899 became law, the legislature mandated the use of the AMA Guides 5th Edition to evaluate the level of permanent disability in California workers’ compensation cases. The 5th Edition was published by the American Medical Association back in 2001 and is now more than two decades old.

The 6th Edition was published in 2008. There are now updates published electronically such as the 6th Edition 2021, and a 6th Edition 2022. However, until the California legislature changes the labor code, the 5th Edition remains the standard here.

According to a new report on this issue just published by the National Council on Compensation Insurance (NCCI), there are a few states that not only require the use of the AMA Guides, Sixth Edition, in determining impairment ratings but also have provisions in place so users rely on the most recent version after it becomes effective. The statutes are nuanced, but such states include Alaska, Illinois, Louisiana, New Mexico, Tennessee, and Wyoming.

Prior to the AMA Guides, Sixth Edition, going digital in 2021, the last update was in December 2007 (it bore “2008” in its title). The update from the fifth to sixth edition had several major changes impacting impairment ratings,with numerous states ultimately adopting the sixth edition.

With the shift to digital, the AMA has changed the way it will update the AMA Guides going forward. The AMA Guides, Sixth Edition 2021, which became effective July 1, 2021, represents the first update to the AMA Guides since 2007. Going forward, the AMA Guides, Sixth Edition, will be exclusively online and accessible by subscription only. Effective January 1, 2022, the AMA considers the AMA Guides, Sixth Edition 2022, to be the most current version. The AMA expects that the next version will be available online in 2023.

While there were several changes included in the update from the AMA Guides, Sixth Edition 2008, to the AMA Guides, Sixth Edition 2021, the only significant content and methodology changes were for mental and behavioral disorders.These changes, which aimed to provide clarification and updated terminology around mental and behavioral health concepts to improve interrater reliability, included:

– – Updating terminology and methodology from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5),6
– – Newer editions of assessment tools and tests, and
– – Elimination of the Global Assessment of Functioning (GAF) from impairment rating methods in Chapter 14 (“Mental and Behavioral Health”).

The AMA Guides, Sixth Edition 2021, adopted the terminology, criteria, and special features of the DSM-5. With the adoption of the DSM-5, the multiaxial system8 is no longer considered in mental health diagnoses.

The 2022 updates were mostly administrative and editorial in nature. Per the AMA’s Summary of Updates, there were no changes to impairment ratings or methodology.As such, if a state were to move from the 2021 to the 2022 edition, there would be no expected impact on WC indemnity costs.

Overall, a state’s adoption of the 2021 updates may impact overall WC system costs, although both the direction and magnitude of the potential impacts are uncertain. The 2022 updates are not expected to impact WC indemnity costs.

Going forward, the AMA Guides, Sixth Edition, is expected to have annual electronic updates. These updates will not impact prior editions of the AMA Guides. The AMA “has created the AMA Guides Editorial Panel as a transparent process in which a broad spectrum of relevant professionals can consider, vet, and determine whether, when, and how the Guides should be improved, enhanced, or revised.” In addition, it will deliver timely enhancements to the AMA Guides that reflect current evidence-based medical practice.

Editorial meetings that are open to the public will be held to discuss proposed changes to the AMA Guides, Sixth Edition. Some topics being considered in future annual content updates are the inclusion of functional patient-reported outcome measures, or PROMs, and changes to how impairment ratings are determined for tinnitus, spinal injuries, and neurological injuries.

NCCI will continue to monitor the annual electronic updates to the AMA Guides, Sixth Edition, and how they may impact WC costs.

New Law Prohibits Employer Discrimination for Off the Job Marijuana Use

Gavin Newsom has signed several measures to strengthen California’s cannabis laws, One of the ten cannabis related legislative bills he signedAB 2188might be a significant problem for California employers.

The legislative analysis provided the backstory to this new law. In March 2021, when the State Personnel Board heard a case regarding the dismissal of a CalTrans maintenance worker for testing positive for THC upon his return to duty after a leave of absence. In upholding the Administrative Law Judge’s decision to revoke his termination, the Board ruled that a positive urinalysis test for marijuana, on its own, is not grounds for dismissal. In this case, there was no evidence that the worker was “under the influence of marijuana when he reported for duty or on standby for duty or that he possessed or used marijuana while on duty or on standby.”

The State Personnel Board also found that the test had limited probative value because it could only show marijuana use at some point in time prior to the worker reporting to work. Thus, a positive drug test for off the job and past use of marijuana cannot be a basis for proving employee impairment.

AB 2188 appears to be a solution for what happened in the CalTrans case.

Under the terms of this new law, after January 1, 2024, it will be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based the person’s use of cannabis off the job and away from the workplace.

Or to discriminate based upon an employer-required drug screening test that has found the person to have “nonpsychoactive cannabis metabolites” in their hair, blood, urine, or other bodily fluids.

The new law declares that after “tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks” And while “there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.”

And there are several exceptions to the application of this new law. It “does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.

But it does not specify what these allowable alternative screening tests might be. Employers will have slightly more than one year to discover this for themselves.

The law “does not apply to an employee in the building and construction trades.” And it “does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense…”

And finally the new law “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.”

California NORML was the sponsor of the bill. Supporters of AB 2188 included the California Cannabis Industry Association, the California Employment Lawyers Association and other similar stakeholders. The legislation was opposed by a large number of employer related organizations including the California Chamber of Commerce, the National Federation of Independent Business and many other groups.

Mandatory Weekly Testing for Unvaccinated Workers Roll Back

The California Department of Public Health (CDPH) is ending COVID-19 policies that required weekly COVID-19 testing for unvaccinated individuals in high-risk workplaces and schools who applied for and were granted an exemption from vaccination requirements.

Except as specifically noted to comply with federal requirements, health care facilities, other congregate settings and schools will no longer be required to administer weekly COVID-19 testing of unvaccinated and under vaccinated workers.

The changes took effect Saturday, September 17, 2022.

Federal orders outlining testing requirements for skilled nursing facilities remain in effect and may require more stringent testing of staff.

Health care workers must, however, continue to comply with all required primary series and vaccine booster doses. The new CDPH order also updates timing of required booster doses consistent with current CDC recommendations. Additionally, facilities must continue to track workers’ vaccination or exemption status to ensure they are complying with these requirements.

According to CDPH, facilities should maintain testing capacity at their worksites and have the ability to ramp up testing in the event of outbreaks or if it is required again at a future date.

And unvaccinated state employees who work in “non-high-risk settings” also no longer need to test weekly, according to a memo from the California Department of Human Resources.

Public health leaders continue to urge all individuals to stay up to date on the COVID-19 vaccine to protect themselves from severe illness and slow the spread of the virus. As Omicron variants keep emerging, the updated booster is an important tool against severe illnesses, hospitalization, long COVID and death. California expects to receive more than 1 million doses of the updated booster and will have ample supply to meet demand.

While weekly testing requirements are ending for those who were granted an exemption from the vaccination requirements, employers and schools are encouraged to continue providing testing resources to staff and students to slow the spread of COVID-19 in all communities. Vaccination and testing are two key measures that help mitigate the spread of COVID-19, as are masking and improving indoor ventilation.

NEXT Partners with Intuit For Comp Insurance in Quckbooks Ecosystem

NEXT Insurance provides small business insurance with simple, digital and affordable coverage tailored to the self-employed. It offers policies that it says are easy to buy and provides 24/7 access to Live Certificates of Insurance, Additional Insured, and more, with no extra fees.

The company is headquartered in Palo Alto, has received a total of $881 million in venture capital funding, is rated “A- Excellent” by AM Best and has been recognized by CNBC Disruptor 50, Forbes Fintech 50, Inc.’s Best-Led Companies, and Forbes Best StartUp Employers.

NEXT Insurance Intuit Inc. just announced the launch of NEXT Connect for Intuit QuickBooks, an embedded insurance solution that provides customers with seamless access to digital-first insurance products within the QuickBooks ecosystem.

QuickBooks is an accounting software package developed and marketed by Intuit. First introduced in 1983, QuickBooks products are geared mainly toward small and medium-sized businesses and offer on-premises accounting applications as well as cloud-based versions that accept business payments, manage and pay bills, and payroll functions.

QuickBooks is the accounting software of choice for more than 29 million small businesses in the U.S. They have over 80% market share and have a diverse product offering suited to help both small businesses QuickBooks Desktop, and Quickbooks Online and larger growing companies (QuickBooks Enterprise) and everything in between (QuickBooks Pro, QuickBooks Premier)

As QuickBooks’s premier insurtech with a proprietary pay-as-you-go system that integrates directly with Intuit QuickBooks, this embedded solution enables small businesses to quickly set up a plan that seamlessly handles payments, streamlines cash flow and ensures they only pay for the coverage they need.

Small businesses and accountants can obtain insurance quotes and bind coverage without leaving their QuickBooks account. Additionally, users can benefit from NEXT’s technologically advanced, in-house pay-as-you-go offering for workers’ compensation, consult with a trusted insurance advisor as well as access multiple A-rated national carrier products, including NEXT.

Guy Goldstein, CEO of NEXT Insurance said that “Our partnership with Intuit QuickBooks enables NEXT to ease significant pain points for the small business community by providing easy access to customized coverage and payments directly tied to a company’s payroll for their workers’ compensation policies – all without leaving their Intuit QuickBooks accounts.”

NEXT’s pay-as-you-go offering was built in-house to provide small businesses with a convenient option to pay for their insurance “as they go” versus all up front, preserving cash flow and reducing the likelihood of year-end audits.

NEXT’s pay-as-you-go offering now uses Stripe Financial Connections to link to a customer’s bank account and automatically handle payments on an ongoing basis. Customers benefit from being able to easily set up billing and having it run automatically along with their payroll. All of their policy, billing and payment information is in one place to easily manage

Jessica Hidalgo, Group Product Manager at Intuit QuickBooks said “NEXT Connect’s embedded insurance offering and pay-as-you-go solution allow us to not only provide QuickBooks customers with seamless access to trusted insurance carriers, but also offer payment options adjusted to a company’s payroll.”

WCIRB Publishes 2022 Interactive Industry Stats Report

The Workers’ Compensation Insurance Rating Bureau of California has released the Interactive Industry Stats – 2022 Edition. This report provides premium, exposure and loss information based on unit statistical report data submitted to the WCIRB for policy years 2003 to 2019. In addition to policy year information, some loss information by accident year is also included.

The Interactive Industry Stats – 2022 Edition report offers a spreadsheet-based user interface. This allows users to browse loss, exposure and premium information and filter data by North American Industry Classification System (NAICS) sector, claim status and claim type.

Data elements provided in the Excel pivot tables include:

1. Policy Year
2. Accident Year
3. Report Level
4. NAICS Sector Code and Description
5. Dominant NAICS Sector Code and Description
6. Final Premium Size Interval
7. Payroll
8. Pure Premium
9. Modified Premium
10. Final Premium
11. Injury Type
12. Claim Count
13. Paid Indemnity
14. Paid Medical
15. Paid Total Loss
16. Incurred Indemnity
17. Incurred Medical
18. Incurred Total Loss
19. Policy Count

Detailed instructions on how to use the Interactive Industry Stats – 2022 Edition are included in the report. The report is available on the Interactive Industry Statistics page in the “Research” section of the WCIRB website.

Weedwacker Injury Not a “Violent Act” for Psyche PD Add-On

Leslie Elizabeth McCain was employed as a laborer by Wallis Construction, Inc., sustained injury AOE/COE to her left elbow, left wrist, right wrist, and psyche on September 24, 2014, and claims to have sustained injury AOE/COE to her neck and shoulders, consisting of myofascial pain.

She waited roughly 1½ months to seek treatment for her physical injuries, at which point she visited Doctors on Duty, where she was evaluated by Michael Luder, M.D. During her visit, applicant informed Dr. Luder that, when the injury occurred, she was “using a weed whacker, lost her footing and hit her left elbow into a wall.

On December 2, 2014, she visited an Urgent Care facility where she similarly told Robert Martin, PT (physical therapist) that the injury occurred when “[s]he was weedwhacking in [a] small space …. She lost footing and fell into [a] wall hitting (L) elbow with wall and weedwhacker.”

She then provided various different versions as to how her injury occurred during subsequent doctors’ visits between 2015 and 2017, stating at various times that: (1) her injury was caused by repetitive use working in construction; (2) that a “jackhammer” fell on her arm; (3) that a “hand held compactor” struck her left elbow when she tried to block it from striking a door; (4) that a “200-pound” weedwhacker fell on her left arm; (5) that the weedwhacker became stuck, she tripped, fell backward, and the machine struck her left elbow; and (6) that her feet got stuck in the mud, she fell backward, and the weedwhacker’s handle hit her left elbow.

On April 28, 2022, the parties proceeded to trial. Among the issues raised was whether or not the ‘violent act’ exception applied. Applicant did not testify, and the matter was submitted.

The WCJ found that McCain’s psyche injuries did not result from a “violent act,” and that, as a result, she was not entitled to an award of permanent disability for the psychiatric consequences of her physical injuries pursuant to Labor Code section 4660.1(c)(2)(A). Her reconsideration was denied in the panel decision of McCain v Wallis Construction Inc – ADJ11102338 (August 2022).

The WCAB panel noted that “is undisputed that her psyche injury was not a “direct” injury, and that it was a compensable consequence of her physical injuries.” In the case of Wilson v. State Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc) it was explaining that section 4660.1(c) applies to compensable consequence injuries. Thus, there is no dispute that section 4660.1 applies.

The parties dispute whether applicant may receive an increased permanent impairment rating under section 4660.1(c)(2)(A), and applicant bears the burden of proving that her psyche injury resulted from either being a victim of a violent act or direct exposure to a significant violent act.

Several panel decisions have followed the definition of a “violent act” for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

Here, the WCJ found that applicant’s psyche injury was not compensable under section 4660.1(c)(2)(A) because the act of slipping and falling and being struck in the elbow by a weedwhacker was not a “violent act” within the meaning of the statute.

The WCAB panel agreed with the WCJ. “Significantly, since applicant did not provide testimony at trial, it is unclear exactly how the injury occurred, and the WCJ was unable to weigh the testimony and determine whether the event was of the type that would be considered a violent act.”

“Even accepting the version of events that were contained in QME Dr. Lopez’s report, the force of this incident cannot be characterized as either extreme or intense, and applicant did not lose consciousness after her fall and kept working after the incident, explaining that she “fully expected her symptoms to resolve promptly.’ ”

Applicant’s injuries are instead akin to those that we have previously determined were not the result of a violent act….”