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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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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." ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
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 ...
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/ 2020 News, Daily News
The U.S. Attorney’s Office will remain vigilant in detecting, investigating and prosecuting fraud schemes related to the COVID-19 crisis.

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

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

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

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

The Electronic Frontier Foundation has created a page - Phishing in the Time of COVID-19: How to Recognize Malicious Coronavirus Phishing Scams ...
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/ 2020 News, Daily News
Upon a unanimous vote of its members, the Appeals Board just issued this en banc decision.

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

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

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

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

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

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

On March 16, 2020, the Division of Workers’ Compensation (DWC) issued Newsline Release No. 2020-18 providing in pertinent part that the DWC’s district offices are currently closed for filing from March 17 through April 3.6 (See Code Civ. Proc., § 12(a); Cal. Code Regs., tit. 8, former §§ 10507, 10508, now §§ 10600, 10605 (eff. Jan. 1, 2020); Pa’u v. Department of Forestry, et al. (2019) (ADJ9159725, ADJ7757931, ADJ9640668). In accordance with this, all filing deadlines are extended to the next day when the district offices reopen for filing ...
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/ 2020 News, Daily News
The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees' temperatures to try and ward off the spread of the coronavirus in guidance updated March 18.

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

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

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

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

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

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

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

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

The EEOC guidance also provided that:

-- An employer may take an applicant's temperature as part of a post-offer, pre-employment medical examination.
-- An employer may screen applicants for symptoms of COVID-19 after making a conditional job offer.
-- An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.
-- An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, the individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer, the EEOC explained ...
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/ 2020 News, Daily News
The Insurance Journal reports that workers’ compensation insurers in at least two states have decided that they will guarantee workers’ compensation benefits for health care workers and first responders.

Kentucky Employers Mutual Insurance Co. announced Friday that effective immediately it will pay wage-replacement benefits for any first responder or employee in the medical field who is quarantined because of direct exposure to a person diagnosed with COVID-19.

Ryan Worthern, communications director for KEMI, said the insurer’s staff decided to adopt the policy, but informed its board of directors and Gov. Andy Beshear of the decision.

KEMI’s announcement follows a decision March 5 by the Washington state Department of Labor and Industries to pay wage-loss and medical treatment expenses for any health care worker or first responder who is quarantined because of coronavirus exposure.

Washington operates a monopoly workers’ comp system, so that policy impacts every employee in the state who is covered by the state system.

L&I spokesman Tim Church said the department has already received several workers’ compensation claims due to coronavirus exposure, but he did not know if they were filed by medical or health care workers. Church said a quarantine normally would not be covered by workers’ comp unless the worker was made ill by workplace exposure.

Church said coronavirus claims by Washington workers outside of health care or emergency services will be decided on a case-by-case basis according to the state workers’ compensation statutes.

The National Council on Compensation Insurance, a rate advisory organization for most U.S. states, said last week that it remains to be seen whether other states will follow Washington state’s lead. NCCI said that many state workers’ comp statutes exclude "ordinary diseases of life" such as the common cold or flu.

However, NCCI said at least 10 states have issued mandates for coverage of coronavirus by health insurers. The directives vary, but include coverage for testing and visits to emergency rooms or urgent care facilities without deductibles or copays, NCCI said. "These measures, if expanded to more states, could have the impact of limiting claim activity in the WC market in those cases where only testing or quarantine are necessary," NCCI said.

Two insurance carriers gave notice of their stand toward the coming workers’ comp claims in notices last week: Texas Mutual Insurance Co. and SAIF, Oregon’s state-chartered workers’ comp insurer, both issued bulletins that said they will decide whether coronavirus exposure is compensable on a case-by-case basis.

Texas Mutual added this caveat: "However, the more widespread COVID-19 becomes, the more difficult it may be for the employee to show that it is work related rather than an ordinary disease of life to which the general public is exposed." ...
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/ 2020 News, Daily News
The Division of Workers’ Compensation (DWC) will temporarily close its San Jose, Oakland and San Francisco district offices to protect the health of the public and our staff and to comply with shelter-in-place orders.

The Division’s headquarters office, which includes the Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefit Trust Fund and Legal Unit, will also close temporarily.

Staff will work remotely and are available by phone at 1-800-736-7401.

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 ...
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/ 2020 News, Daily News
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.

She has now scheduled a free, informative live-webinar covering important topics for employers, HR and Risk Managers on employment law aspects triggered by the COVID-19 virus. Her topics include:

-- What workplace laws may be triggered by COVID-19?
-- What leave may an employee entitled to who is ill, or who needs to care for a family member?
-- What leave may be required for parents with children home from school?
-- Can employers require a diagnosis from an employee if COVID-19 is suspected?
-- Can employers send employees who appear sick home from work?
-- If the workforce shuts down, must employees be paid, and what about benefits?
-- If the proposed federal paid sick leave law passes, what is required?
-- What should employers tell workers who are 65 and older?
-- Guidance on responding to employees who do not want to report to work.
-- Guidance on responding to employees who are concerned that a co-worker has COVID-19.
-- If an employee is out sick, can a release to return to work be required?

This webinar will take place on Friday, March 27, 2020 from 10:00 am until 12:00. If you would like to attend, please use this registration page.

Ms. O’Brien is the editor of Floyd Skeren Manukian Langevin’s employment related websites: www.employmentlawweekly.com, www.worklawreport.com, and www.floydskerenhrtraining.com.

Ms. O’Brien represents employers in employment related disputes before the Department of Fair Employment and Housing (DFEH), the Equal Employment Opportunity Commission (EEOC), and the California Labor Commissioner, including claims related to discrimination, harassment, retaliation, and wage and hour violations.

Ms. O’Brien also provides HR consultation to employers, human resource administrators, and risk managers on a myriad of HR topics including compliance with federal, state and local employment related laws; EEO compliance; AB 1825 Sexual Harassment training; managing leaves of absence pursuant to FMLA/CFRA, PDL and paid sick time; disability, accommodation and the interactive process; and performance, discipline and termination.

Ms. O’Brien also conducts management and employee training sessions throughout California on numerous workplace topics ...
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/ 2020 News, Daily News