MICHAEL SULLIVAN & ASSOCIATES BLOG

An employer must conduct utilization review (UR) to determine whether to approve, modify or deny a request for treatment. If the medical services have not been provided, Labor Code 4610(i)(1) normally requires the UR determination to be made within "five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician." California Code of Regulations § 9792.9.1(c)(3) generally requires prospective or concurrent UR decisions to be made within five business days from the date of receipt of the completed DWC form RFA (request for authorization).

Labor Code § 4062.2 establishes the procedure to be followed "[w]henever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney." A party may request a panel of qualified medical evaluators (QME panel) the first working day that's at least 10 days after the date of mailing a request for a medical evaluation pursuant to LC 4060, or the first working day that's at least 10 days after the date of mailing an objection pursuant to LC 4061 or LC 4062.

On June 22, 2023, in Nunes v. State of California, Dept. of Motor Vehicles,^[1] the Workers' Compensation Appeals Board (WCAB) issued an en banc holding that:

1. Labor Code § 4663 "requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code makes no statutory provision for 'vocational apportionment.'"
2. "Vocational evidence may be used to address issues relevant to the determination of permanent disability."
3. "Vocational evidence must address apportionment, and may not substitute impermissible 'vocational apportionment' in place of otherwise valid medical apportionment."

On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. The court held that grant-for-study orders violated Labor Code § 5908.5. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days. This case was discussed in detail in our previous article.^[1]

On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. It held that pursuant to Labor Code § 5908.5, the WCAB must state in detail the reasons for its decision to grant reconsideration and the evidence that supports it. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days.

California employers scored a victory this week, as both the CA Supreme Court and US Court of Appeals for the 9th Circuit confirmed that employers owe no duty of care to prevent the spread of COVID to members of their employees’ households. The facts of the case, Kuciemba v. Victory Woodworks, Inc., were actually super interesting!

As a furniture and construction company with jobsites all over California, Victory was declared an essential business during the COVID lockdowns of 2020. While the lockdown was ongoing, several employees at one of its jobsites contracted COVID. Instead of requiring its non-infected employees at that site to quarantine, Victory reassigned them to other jobsites, including Mr. Kuciemba’s, in violation of the health orders in place at the time. Not surprisingly, one of the reassigned employees gave Mr. Kuciemba COVID, and in turn, Mr. Kuciemba gave it to his wife. While she was fortunate enough to survive her bout with COVID, she was hospitalized for a considerable time, during part of which she required a respirator to breathe. The Kuciembas sued Victory, claiming (among other things) that Victory caused Mrs. Kuciemba’s injuries by negligently failing to protect its employees from the spread of COVID.

The California Supreme Court just handed down its long-awaited decision in Adolf v. Uber Technologies, Inc., (“Uber”), and you are probably wondering how that ruling affects the arbitration agreements you have in place with your employees.

The short answer is: it doesn’t. Exhale!

The Labor Code describes different procedures for requesting a panel of qualified medical evaluators (QMEs). Labor Code § 4062.1 controls the procedure by which parties may obtain a medical evaluation to address a disputed issue pursuant to LC 4060, LC 4061 and LC 4062 when the employee is not represented by an attorney. LC 4062.2 establishes the procedure when an employee is represented by an attorney.

Pursuant to LC 4062.1(b), either party may request a QME panel per LC 4060, LC 4061 and LC 4062 by submitting the form prescribed by the administrative director requesting the medical director to assign a panel of three QMEs. In unrepresented cases, the California Code of Regulations § 30(a)(1) states that for disputes covered by LC 4060, the requesting party must attach the claims administrator's notice that the claim was denied or a copy of the claims administrator's request for an examination to determine compensability. For disputes covered by LC 4061 or LC 4062, CCR 30(a)(2) states that "[I]f the requesting party is the claims administrator, the claims administrator shall attach a written objection indicating the identity of the primary treating physician, the date of the primary treating physician's report that is the subject of the objection and a description of the medical determination that requires a comprehensive medical-legal report."