Happy Monday dear readers!

Thanksgiving is just around the corner… are you ready?  Turkey, gratitude, social distancing: all like the founding fathers intended. 

In your humble blogger’s travels, I’ve encountered many different systems of law – so many different systems that vary and contrast so strongly with our own.  For example, in the South of France, legal disputes are often resolved by a test to see which practitioner can roll the tightest crepe.  In Japan, lawyers must plead their arguments on a series of neatly manicured Bonsai trees.  But, one of the systems that came to mind recently was in Scotland, where, in lieu of filing a complaint, the plaintiff would challenge the defendant with a bold question: “Boxers or Briefs?”  Of course, the option of “Boxers” would mean fisticuffs, while the option of “Briefs” would be to take the contest to court and file legal briefs.  Perhaps our legislature could learn something from these other systems of law?

Well, turning, instead to California law, with it’s lack of crepe-based adjudication and its total dearth of Bonsai trees, let’s talk about permanent total disability.

Permanent total disability, which is a prized award sought by every applicant attorney not unlike a feather in one’s cap, is specifically defined by the Labor Code and case law.  Labor Code section 4662 gives us the exhaustive list of how 100% PD can be found through medical evidence: either the disability is presumed total (loss of both eyes/sight; loss of both hands/use thereof; practically total paralysis; or brain injury resulting in permanent mental incapacity).  If applicant doesn’t fall into any of those four, the only way to hit 100% PD with medical evidence is by adding or combining various disabilities to get to 100%.  At least, that was the holding in the Court of Appeal case of Fitzpatrick.

Unfortunately, it appears that applicants can still pursue 100% PD through Ogilvie, although your humble blogger is still of the opinion that this can only be done on pre 1/1/13 cases, where diminished future earning capacity is still an element of the rating equation.

So what about prior injuries?  What about apportionment?  Let’s talk about the recent panel case of Ross v. California Highway Patrol.  Therein, applicant sustained an admitted injury to his heart, as well as hypertension, atrial fibrillation, and other conditions as a CHP officer.  After trial, the WCJ issued an Award, finding permanent total disability by adding rather than combining various impairments to reach 100% PD, but then rescinded and ultimately issued an Award finding 91% permanent disability. 

Defendant contested this award by offering evidence of prior awards issued to applicant: 1993 injury to the ankle, nausea and gastric (7%); 1998 injury for intestinal issues resulting in 10% PD; a Cumulative Trauma through 2001 to the skin resulting in 33% PD; and another CT and specific injury to various systems in 2009 resulting in 9% PD.  Defendant argued that all of these conditions fall under the catch-all of Labor Code section 4664(c)(1)(G) as a “catch-all” for a “region of the body.”

The WCAB panel held that once the employer has carried its burden of establishing the existence of overlapping disabilities between prior awards and current injuries, the maximum permanent disability found “in accordance with the fact” is 100% with all awards combined – “As defendant has established that applicant has to date received awards for injuries to the same ‘region of the body,’ as defined in section 4664(c)(1)(G), totaling 59% permanent disability, the most permanent disability he can receive in his lifetime for subsequent injuries to the same ‘region of the body’ is 41%.”

So, a few things I would respectfully point out to my beloved readers.  Whatever the holding in Kite, please note the way the WCAB calculates the prior awards: they are ADDED and not COMBINED to push towards the statutory cap of 100%.  The prior awards all add up to 59%, rather than being combined for the smaller number.

Also, has anyone ever heard the term “apples and aardvarks” when talking about permanent disability apportionment?  Well applicant attorneys and some WCJs love to cite this term when claiming that an award from the 1997 PDRS cannot be used as a basis for apportionment from a 2005/AMA Guides PDRS rating.  It comes from the writ denied case of Contra Costa Fire Protection District v. WCAB (Minvielle), a 2010 case in which the AME opined that there was no apportioning current PD to a prior award because the instant PD was based on the AMA Guides and the 2005 rating schedule, and the prior Award was from the 1997 rating schedule – thus attempting to apportion would be like “comparing apples to aardvarks”.

Well, the panel in this case had no such considerations.  The prior awards were all pre-2005 except for the one from 2009.  However, they all contributed, regardless of rating schedule, to a maximum 100%.  Under the Minvielle, presumably, any awards issued under the old rating schedule wouldn’t count, no? 

So perhaps Minvielle should be rejected (as it is not binding to begin with).  Your humble blogger certainly thinks it should be – whether the PD is different because it was a different weekly rate or a different rating schedule, perhaps we should just be deducting prior awards from current ones anyway.

And, dear readers, what do you think?

Happy Friday dear readers!  Looks like we made it another week – the civil war hasn’t started, the lizard people have yet to emerge from their sewer nests to enslave us, and dogs and cats continue to dislike one another.  The sky is still above us and the Earth below.  Not all bad!

Many of us living in the great state of California can look forward to a state-wide curfew from 10 p.m. to 5 a.m., although, if your social life and bottomless reserves of energy are anything like your humble blogger’s, you probably won’t notice much of a difference in your day-to-day activities.   

Meanwhile, as we start making preparation for Thanksgiving (which happens to be your humble blogger’s favorite holiday of all), we can expect to serve a smaller table and fill fewer plates.  Remember, dear readers, this is a VERY dangerous game if your typical Thanksgiving strategy involves planning to have leftovers.  Adjust accordingly or your leftovers will have leftovers…

In other words, dear readers, looks like the whole COVID thing isn’t exactly done just yet.

Anywho, I’m sure you don’t pay your subscription fees to hear your humble blogger grumble about the minor inconveniences imposed upon his non-existent social life by social distancing.  You’re here to see how the law can be twisted and tortured to provide some modicum of due process for defendants in California’s workers’ compensation system, right?  We at WCDefenseCA are not unlike golden retrievers, dear readers, in that we are very eager to please.

I’m sure you’re familiar with the concept of Occam’s Razor, that the simplest explanation is usually the right one.  Well, I present for your consideration Occam’s Razon… which is actually just the Razon case and the unpublished opinion issued by the Court of Appeal just this week.

The facts are pretty simple – applicant alleged an injury while working for Southern California Permanente Medical Group.  While the case was working its way through the comp claims system, he filed a Fair Employment and Housing Act (FEHA) claim against his employer.  While the FEHA claim, which alleged that discriminatory actions by the employer made it impossible or at least more difficult to continue working for said employer, was pending, Razon settled his workers’ compensation claim by way of C&R.  As is typical in C&R settlements, applicant also signed a resignation letter which “releases [defendant] from any and all claims, known or unknown, which may exist at the time of execution of this Agreement” and waives any claim to monetary damages that may arise from the employee-employer relationship.

Based on the resignation letter and release, defendant moved for summary judgement in the FEHA claim. The motion was granted and Razon appealed, and the Court of Appeal affirmed in an unpublished opinion.

Now, it is very important to remember that Razon is an unpublished opinion, which means that this decision “must not be cited or relied on by a court or a party in any other action.”  However, since a decision can only be “unpublished” if it does NOT “[e]stablish a new rule of law”, we can safely presume that this decision is just rehashing an already established rule of law.

What else can we take away from this?  A workers’ compensation settlement may provide consideration for a non-workers’ compensation settlement.  That is, to say, the workers’ compensation appeals board may approve a settlement, but, based on the Razon case, that settlement may be independent consideration for a document the WCAB would likely not have reviewed or considered – the resignation letter and general release.  So, it looks like the Court of Appeal in Razon is saying that a separate part of an agreement, to wit, the resignation and release letter, is still valid and binding even if that part of the settlement was not reviewed or approved by the WCAB.

Another interesting aspect of this case is that the replay scenario creates a showdown of conflict between insurer and insured.  The insurer for a workers’ compensation claim probably doesn’t have any exposure for any FEHA claims.  However, the employer is probably eager to have the FEHA flank covered.  When applicant holds out for a bigger payday to sign a general release, who exerts the influence?  Who foots the bills for the difference between a C&R with and without a general release and resignation?

What do you think, dear readers?  Is this something to mull over during the weekend?

And here we are again, dear readers!  As the song goes, “Monday morning, you sure look so fine…”

So what better way is there to greet a Monday morning than a discussion of medical provider networks?  I certainly can’t think of one, so let’s dive in!

Normally, one might think a medical provider network is like a Facebook (or MySpace, for people closer to your humble blogger’s age) but only for physicians and the such.  But it’s not!  It’s actually a method of medical control for defendants in workers’ compensation cases. 

In the relatively recent panel decision of Vasquez v. Accurate Concrete Sawing, Inc., applicant’s claim of injury was denied and he proceeded to treat on a lien basis.  However, the defendant ultimately accepted the claim and wanted to move applicant into its Medical Provider Network (you could say that the defendant sent applicant a “friend” request… get it?)

Anywho, applicant refused, arguing that defendant had lost medical control and there wasn’t a demonstrable change in circumstances to warrant forcing applicant to treat within the MPN.  You, learned reader, might be thinking to yourself “well, that’s not the standard, is it?” and you’d be right!  That’s when the parties cried “havoc” and let slip the dogs of litigation…

The trial judge summarized the arguments of the parties as follows:  applicant cited Zeeb v WCAB, a 1967 Supreme Court case, for the proposition that defendant lost medical control, while defendant argued that California Code of Regulations section 9767.9 does not require a petition to transfer applicant into the MPN nor does it prohibit transferring applicant into the MPN once the claim has gone from denied to accepted.  The WCJ ultimately fond that “defendant failed to meet its burden of proof that transfer to the MPN is warranted by changed circumstances or evidence that treatment with the current treater is defective or additional treatment is necessary and/or that the transfer of ongoing care provisions were met.”

On defendant’s petition for reconsideration, the WCAB declined to follow the WCJ’s reasoning, concluding instead that the en banc decision of Babbitt held that Zeeb predates various changes to the MPN statutes and no longer requires a “change of condition or defective or incomplete medical treatment” to transfer an injured worker into the MPN.  “Pursuant to Babbitt, defendant is entitled to transfer applicant’s medical care into the MPN regardless of the date of injury and without showing a change of condition or defective or incomplete medical treatment.”

If we stopped reading the panel decision here, we might think this a victory for the defense.  Sadly, that is not the case. 

The WCAB went on to hold that defendant must satisfy notice requirements and the procedure laid out in 9676.9(f), and remanded it to the trial level for factual determinations of whether (1) defendant failed to provide notice to applicant of applicant’s rights under the MPN AND if defendant failed in this regard, (2) did that failure result in a denial of medical treatment?  The WCJ was also instructed to determine if defendant complied with the requirements of 9767.9(f) (whether applicant’s condition satisfies one of the four scenarios outlined in the regulation that would allow applicant to continue treating with a non-MPN physician).

So, what’s the takeaway from this case?  Well, for one thing the panel opinion reaffirms for us that the guidance of Zeeb is no longer controlling and the key to transferring an injured worker’s care into the MPN is rooted in section 9767.9.

The Vasquez case further reiterates for the defense community how much delay there is in enforcing the MPN, even if a defendant does everything ostensibly right.  For example, in the Vasquez case, the claim was accepted on August 12, 2019.  However, the panel decision was issued in September of 2020.  Which means that even a year after accepting the claim, defendant still did not yet enjoy medical control of the case.  Justice delayed is, after all, justice denied.

Until next time, dear readers!

Ok, dear readers – it is Friday.  But, it’s not just any Friday.  If Friday the 13^th would be an entire year, that year would be 2020.  And what happens when it’s Friday the 13^th in the year of Friday the 13^th?  Well, probably not much good.  Recently, I read that a nest of some 200 murder hornet queens was wiped out “just in time” which means the murder hornets are still a risk.  In other words, 2021 can’t come soon enough.

That being said, it’s still Friday, and what a week it has been – not a single text message from a supposed UBER driver telling me how much she wants Proposition 22 to pass, not a single message from someone demanding urgent action on California’s dialysis clinics.  Oh, what a time to be alive!  We must, after all, find our silver linings where we can.

So now that the prospects of voting and electioneering and all that is long behind us, let us refocus our interests on the matters at hand: SB1159 continues to make employers and insurers nervous with its poorly worded and clumsily mapped out effects.  But as much attention as SB1159 is getting from bloggers, journalists, presenters, etc., and as much as all that attention is justified, there is another bill that I have noticed has not gotten as much attention as SB1159.

That is, of course AB685.  Passed alongside SB1159, but not deemed “emergency” legislation, it takes effect about the same time that we are all sobering up from celebrating the end of the worst year in living memory: that’s right, January 1, 2021!

AB685 primarily has to do with the obligation of the employer to report possible COVID19 exposure.  Labor Code section 6409.6 is amended to trigger duties on the part of employers when “the employer receives a notice of potential exposure to COVID-19.”  These duties include:

• Providing written notice to all employees, or their representatives, and the employers of subcontracted employees, “who were on the premises at the same worksite as the qualifying individual within the infectious period” about potential exposure.  The method of notice is to be “in a manner the employer normally uses to communicate employment-related information” such as snail-mail, e-mail, and text-message.   The notice must also be in English and “the language understood by the majority of the employees.”
• Provide all employees (and their representatives) who “may have been exposed” with information related to COVID-19 related benefits, whether federal, state, or local, including but not limited to workers’ compensation, etc.
• Notify all employees and employers of subcontracted employees of the disinfection and safety plan to be implemented
• Notify the local public health agency if the number of COVID-19 cases at the worksite reach the level of “outbreak”
• Keep Cal/OSHA Form 300 injury and illness log (or at least the same information as on that form) for purposes of reporting potential infection to the representatives of employees.

AB685 also prohibits retaliation against an employee for disclosing a COVID19 diagnosis and require the keeping of these reporting records for at least 3 years.

There is more to AB685 which covers enforcement, “serious violations” and the ability of the employer to dispute or disprove that a “serious violation” occurred, but that sounds like fair game for another blog post.

In the meantime, as the new year races towards us with breakneck speed, what are the employers supposed to do to get ready for this?  After all, I’d be willing to bet a considerable amount of my lunch money that the clock striking midnight on December 31, 2020 will not be the cure to COVID we’ve all been waiting for.

Employers would be wise to prepare notices and to poll their employees on the both the preferred language and the most effective means of communicating these notices to them.  January 1, 2021 will be too late to start figuring this out, as a potential exposure might occur on January 2, 2021.

Additionally, if there are any subcontracted employers on the premises (such as, for example, security services or operators of a café in the building) it is important to identify the contact person for each of those subcontracted employers to include in a potential exposure notice.

Finally, insured employers should absolutely be asking their brokers and insurers for a specific plan to follow in reporting potential exposure, which should align as much as possible with the reporting requirements outlined in SB1159. 

Have a good weekend folks!

It’s Wednesday, my beloved readers!  But, on top of that, it’s not just any Wednesday, because it is Veterans Day!

In 1919, President Woodrow Wilson announced the first Veterans day to thank our brave soldiers for their service and sacrifice.  This is one of those American traditions that your humble blogger very much supports and admires.*

Please remember, dear reader, that aside from being a cultural holiday in which we thank and celebrate our veterans, this day is also a legal holiday, as contemplated by the Rules of Court.  As per California Rules of Court section 1.10(b), “if the last day for the performance of any action that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.”

Your humble blogger wishes his beloved readers a very happy Veterans Day, and may we re-convene tomorrow and get back to the work of denying benefits!

*In case my readers are wondering, the number one American tradition or rather cultural phenomenon that I am finding to be disturbing and of which I disapprove of whole-heartedly is the constant need to remake old movies.  Jeeze louise guys, let’s have something original.  Do we really need a 27^th sequel to Fast and Furious or a fourth reboot of Dirty Dancing (in this one, Johnny is played by a goldfish with a traumatic past!)?

Haaaaaaapy Monday, dear readers!

Did you miss me?  Well, your humble blogger’s best efforts to be elected president have come to naught.  We ran a tough campaign, but it turns out that a workers’ compensation defense attorney who is not eligible to serve as President for a variety of reasons just doesn’t make a very appealing candidate. 

Well, there’s always next time – President Humble Blogger for office (tell your friends)!

Now that I can, once again, direct my attention to being both humble and a blogger, let alone a humble blogger, I have just one question for my beloved readers: What is your favorite type of doll? 

There are GI Joe Action Figures, there are Barbie dolls, but my personal favorite (if I’ve set up the joke correctly) is the case of Dahl, in which the Court of Appeal curbed the reach of Ogilvie and the ability of applicants to rebut the PDRS.

So I bring you the case of Balgeman v. Get a Mattress/SCIF, a panel decision recently issued by the WCAB.

The PQME in that case had issued a report that rated to 24% permanent disability based on a lower extremity injury, with subsequent compensable consequence injuries claimed to the left hip and psyche.  However, applicant’s vocational rehabilitation expert found that applicant had sustained a “94% diminished future ability to compete in the labor market” as well as a “94% loss of preinjury access to the labor market” because applicant was limited to sedentary work.  

By contrast, defendant’s vocational rehabilitation expert concluded that applicant was amenable to rehabilitation, even with a sedentary work restriction.

After the trial judge adopted the strict orthopedic rating of the QME and rejected the vocational rehabilitation analysis, applicant appealed, arguing that “the rating of her permanent disability is most accurately determined by the vocational evidence of her loss of her future earning capacity, and not by applying the presumptively correct PDRS.”  The WCAB’s response?

The WCAB instead held that the language of Ogilvie allows rebuttal of the PDRS when “the employee is not amenable to rehabilitation.”  The opinion notes that of the three methods for rebuttal outlined in Ogilvie, applicant chooses to create a fourth: “a greater loss of her earning capacity than reflected in the scheduled rating, even though her future earning capacity may be increased by her participation in vocational rehabilitation programs.” 

The panel held that both Ogilvie and Dahl prohibit such additional approaches to rebutting the PDRS.

The WCAB denied reconsideration and applicant was stuck with her orthopedic rating.

Your humble blogger is one of those die-hards who opines that injuries sustained on or after January 1, 2013, are not subject to PDRS rebuttal because there is no diminished future earning capacity in the PDRS rating formula.  Of course, the WCAB has been hesitant to adopt this theory as law, but hope springs eternal and, one can hope that all the practitioners in the land will soon enough adopt this line of reasoning.

Aside from this threshold position, however, when faced with one of these vocational rehabilitation cases, one of the early questions to ask is if the applicant is amenable to rehabilitation.  If he or she is, then rebuttal of the PDRS should not be available.

Back to work, dear readers!

Alrighty dear readers, it’s Wednesday!

And, what, you might ask, is a perfect topic for a blog post on Wednesday?  Well, if it’s coming from your humble blogger, it might just be the alleged misdoings of a Florida workers’ compensation attorney!

I know, I know, what do you, my beloved readers, who have managed to exhaust all your discipline and will power to force yourself to read this California Workers’ Compensation Defense Blog care for what happens in a state where Gators are just waiting for you to give them a reason?

One’s odds of being murdered by a gator are low…

But never zero!

Well, while we’re all enjoying working from home, and the depositions are all being done via ZOOM, one of the concerns that practitioners rightly have with remote depositions is monitoring the deponent’s attorney “coaching” or directing the witness’s testimony.

So while your defense attorney is sitting there in his pajamas, sipping a totally virgin coffee while asking questions of the applicant, those glances off screen might not be the applicant concentrating really hard to make sure the answers are honest and correct.  Instead, the deponent might be reading text messages with answers being fed by the applicant attorney!

Now, while you might be saying to yourself that the humble blogger is being paranoid and that would never happen, the truth is that the Florida Supreme Court referee certainly thinks it did.

The Florida state bar filed a complaint against a defense attorney, who fed answers via text message to an adjuster being deposed in a workers’ compensation case.  In all the fun, the defense attorney accidentally sent one of these answers to the deposing applicant attorney!  This resulted in an investigation and the Florida Bar ultimately concluded the defense attorney was engaged in witness coaching.

In this case, this was discovered only because the defense attorney inadvertently sent the texts to opposing counsel, instead intending to send them to his client.

Text messaging is not the only way to engage in instant communications.  Google chat, Facebook Messenger, perhaps even some sort of magically teleporting homing pigeon, are all methods that would avoid detection but can continue to allow “coaching” between a deponent and the deponent’s attorney.

Nor is this limited to a deponent – an employee’s witness can likewise be coached during a video deposition.  Absent a slip-up like the one encountered here, there’s not much that can be done about it except the watchful vigilance of the deposing attorney.  The deposing attorney needs to observe and document, on the record, the demeanor of the applicant: “let the record reflect that before answering, the deponent was looking off screen” or “let the record reflect that applicant’s counsel appears to be operating his cell phone off screen as if to send a message” or “let the record reflect that a vibration noise was heard from the deponent’s side of the screen and she reviewed something before answering.” 

If this becomes a habit or routine thing during the deposition, perhaps it would be more appropriate to have the deposition videorecorded or taken before a special master.

Remember, dear readers, they promised us that by 2020 we’d have flying cars, robotic butlers, and lunar vacations.  But here we are, homeschooling our kids like the frontier days, and counting how many seconds allegedly injured workers looked off screen before answering basic questions, while doing our best to avoid arguments about whether the world is flat.  Good luck, dear readers, and watch out for the gators!

Happy Monday, dear readers!

Your humble blogger appears to be solar powered, as the blogging energy is strongest when the sun is shining, the air is transparent, and the joy of explaining to a lien claimant why interpreting an 18-month statute of limitation to mean 18-months plus however long it took to file the lien is not persuasive is behind me for the moment.

So, quick exercise for all the employers out there (and those who love and/or advise them).  Crack open your calendar and flip to October 30, 2020.  Why is this day so important?  Well, that’s because it is 30 business days after September 17, 2020. 

Now, you might be thinking to yourself that the humble blogger is technically correct, but so what?

Well September 17 was a busy day – so many things happened and not the least of them was Governor Newsom signing into law the compliance nightmare known as SB1159.

As part of SB1159, Labor Code section 3212.88 now requires employers to report ALL Covid19 positive test results of their employees, whether claimed as industrial or not, to the employer’s claims administrator.  If the collection of the sample leading to a positive Covid19 diagnosis occurred between July 6 and September 16, 2020, the employer has 30 business days from September 17, 2020, to report it to the claims administrator… along with every location the employee worked the 14 days prior to the diagnosis as well as “the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020 and” September 17, 2020.

So, my dear readers, it’s time to start calculating employee attendance at every location between those two dates, as the clock is ticking to make that reporting.

On the bright side, if you get your reporting done on time, you can then enjoy Halloween guilt free, although if you REALLY want to confuse children, disappoint your friends, and possibly give your workers’ compensation colleagues anxiety, you can dress up as the Labor Commissioner and hand out $10,000 fines for failure to make timely reports on Covid19 exposure.

“Happy” Monday indeed, my beloved readers!

To my beloved readers, I hope your burdens are getting lighter, your air is becoming cleaner, and the speed at which life passes by accelerates past the hardships and slows down for the good times.

Another year has passed us and it is Yom Kippur once again. To my beloved readers observing the fast and repenting their sins, I wish you an easy day and time for meaningful reflection.

And to all my readers (and even those who unreasonably decline to be my readers): we should all be written in the book of life!

Your humble blogger will be back on Wednesday with more reporting and possibly even some additional analysis of everyone’s new favorite discussion topic: SB1159!

Well, dear readers, I’d like to wish you a happy Friday, but the thing we all absolutely expected to happen, actually did – SB1159 has been signed into law by Governor Newsom – and no surprise there…

So what does that mean for all of living in the wonderful world of California workers’ compensation?  Well, aside from having to read headlines titled “California Save Workers From Covid19” instead of “California Makes Employers General Insurers Against Epidemic Affecting Everyone,” we also have to be prepared to litigate these presumptions.

Earlier this week I prepared a post about the differences among the presumptions: rebuttable and conclusive as contemplated by the Evidence Code and “disputable” as has emerged from the imagination of the bill drafters.  Well, employers and insurers need to be prepared to hit the ground running as unemployment benefits become exhausted, business slow-downs become business closures, and workers facing depleted savings suddenly remember that someone coughed in their general direction that one time they came into work.

At this point, my beloved readers, I will make a shameless promotional plug: your humble blogger has been presenting along with his learned colleagues at Gale Sutow – if you’d like us to present on SB1159 and strategies for addressing the presumptions, please shoot me an e-mail at your convenience. 

Your humble blogger won’t get into the details here, but some general thoughts must be mentioned – COVID19 WC claims are not like ordinary claims.  We all have those files where the employer didn’t timely report the injury to the insurer and now the defense team his three days to do an investigation before the 90 days run.  This isn’t that scenario.

The period to investigate and deny isn’t 90 days – it’s either 30 or 45 depending on the circumstances.  So everyone on the defense team has a job to do until SB1159 sunsets on January 1, 2023, and here it is:

1. Brokers and Insurers: educate the employers in a matter that Israelis call “ackshav”;
2. Employers: You have to be on the ball in both reporting COVID19 claims for possible “outbreak” status and also to allow the insurer and adjuster a chance to mount a defense – this isn’t one of those problems you can ignore like when an angry customer throwing a tantrum about you not honoring an expired 50 cent coupon threatens to say mean things about you online – a COVID19 claim goes to the top of the to-do list;
3. Adjusters: Keep an eye on that denial timeline and figure out from first notice if the presumption is going to apply and what deadline you’re dealing with – 30 days or 45? Send out the file to your investigators and attorneys EARLY so we can engage in tracing and set up to challenge the presumption and/or the claim;
4. Defense attorneys – we’ll have to move quickly.  Is there a basis to deny the claim outright?  If the reason to deny the claim isn’t apparent early on, can we do anything to “dispute” the presumption down the road?

Plenty of work to go around and plenty of action for all parties to take.

Remember, read readers – there’s a reason not to just brush this off and eat the claim.  COVID19 has shown to interact with other conditions and have serious, long lasting effects.  Sure, you can play the odds and assume that a positive diagnosis will clear up without residuals in two weeks, but what happens when your applicant can’t find work and has developed a compensable consequence psyche to leaving the house due to COVID19?  What happens when the next study comes out confirming for us all that COVID19 results in permanent harm to the lungs and the nerves?

Chins up dear readers, but eyes open, and let’s get to work!