MICHAEL SULLIVAN & ASSOCIATES BLOG

Generally, an employer must deny a claim within 90 days to avoid a presumption that it's compensable. Labor Code 5402(b)(1) states, "If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division." Once the presumption attaches, it can be rebutted only by evidence that could not have been obtained with the exercise of reasonable diligence within the 90-day period. (SCIF v. WCAB (Welcher) (1995) 60 CCC 717.)

Labor Code 4616.3(c) establishes a process that allows injured employees to obtain second and third opinions from physicians within a medical provider network. It states, "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

Per LC 4616.4(b), "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request an MPN independent medical review regarding the disputed treatment or diagnostic service still in dispute ... in accordance with Section 4616.3." That's referred to as an MPN IMR.

On February 3, 2023, Cal/OSHA’s COVID-19 Non-Emergency Standards was approved and became effective. The Non-Emergency Standards will remain in effect until February 3, 2025, and can be found at https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Non-Emergency-apprvdtxt-oal.pdf.

The Non-Emergency Standards relax several previously mandatory requirements and have modified some important definitions.

The following are changes employers need to be aware of and implement.

The Division of Workers' Compensation (DWC) revised regulations related to medical-legal evaluations effective Feb. 2, 2023. The regulations make changes to the rules for scheduling QME examinations and permanently adopt regulations allowing remote medical-legal evaluations. Specifically, the regulations make these changes to the medical-legal process:

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, Labor Code 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel.

2023 marks the end of COVID-19 emergency regulations and the implementation of permanent COVID requirements. While several of the new 2023 laws relate in some way to COVID, businesses can expect a return to more non-COVID related requirements. Employers must implement wage transparency policies and implement an expansion of CFRA and sick leave policies by expanding the definition of family member to include a non-blood related individual. To avoid retaliation claims, employers must be aware of additional protected activities included those related to reproduction and fertility and employees’ right to leave the workplace during natural disasters and emergency conditions. Finally, bereavement leave has been expanded and, for larger employers, new privacy requirements must be implemented.

For injuries on or after Jan. 1, 2013, Labor Code 4660.1(c)(1) states that "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." LC 4660.1(c)(2)(A)(B), however, specifies two exceptions allowing an increased impairment rating for a psychiatric disorder. An employee may receive such a rating by proving that the injury resulted from either: (1) being a victim of a violent act or direct exposure to a significant violent act; or (2) a catastrophic injury. Moreover, the WCAB continues to hold that the permanent disability schedule under LC 4660.1 can be rebutted by vocational evidence.

Michael Sullivan & Associates is happy to announce the opening of our 10th office, located in Redding, CA. You can find our newest office in the heart of downtown Redding, at 1300 West Street, Suite 210, Redding. You can reach the new office by phone at (530) 670-5550.