Happy Monday, dear readers!  How are we all holding up?  So far so good on this end of the computer screen – the COVID19 has had quiet the impact on attending hearings before the WCAB.

Starting last Monday, April 13, 2020, each Workers’ Compensation Judge had an assigned phone number to allow parties attending Mandatory Settlement Conferences to call in and discuss the matter over the phone.  The parties were instructed to complete 5-pagers and e-file or email them to WCJ’s the night before the hearing.

I had three such MSCs and let me tell you – this is awesome.  If your humble blogger was asked, I would urge us to consider making mandatory settlement conferences via conference telephone call the norm.  Parties are required to appear having already reviewed their cases and ready to either settle or go to trial. 

The cases are given attention by the WCJ over the phone in a systematic process without having to track down the opposing counsel whether that be in the cafeteria, outside having a cigarette, or in the secret bar-and-lounge that only humble bloggers know about.

It’s only been one week, but, so far, the system has been efficient and relatively smooth.  If you nurture a grudge that the opposing side shows up to court completely unprepared and learns his or her file on the go, perhaps this is the system to weed such behavior out.

Now, since my last blog post, where I valiantly argued that there is absolutely no need to have a presumption of compensability for COVID19 cases among grocery workers, your humble blogger has received a surprising bit of e-mail traffic making some very valid points.  The thrust of the arguments has been that whereas I, your humble blogger, would only spend 30 minutes to an hour at the local grocery store, the grocery store worker would spend 8 hours or more there.

As such, the e-mails argued, perhaps the grocery store worker is at greater risk than the public, because the grocery store worker cannot retreat to shelter-in-place until completion of the 8 hour shifts (plus commute time) that are part of the job.

I completely and totally agree.  It sounds like there are going to be cases where the injured worker can show, through timesheets alone, that it is more likely than not that the COVID19 applicant has come down with and suffered from is industrial.

But your humble blogger submits this to you, my beloved readers, and especially to the folks that took the time to send these points my way: why, then, do you need a presumption?  If it’s this obvious, then file for a priority conference and get a finding of fact that the injury is industrial.  It’s not like you have to pay for a QME, right?  Defendants are forced to do that, sometimes even when the dispute could be resolved by a factual inquiry. 

But let’s get real for a second – what presumption is going to be limited in scope to the 8-hour employee valiantly providing grocery service to the teeming masses for 40 hours a week?  No, of course not, the presumptions would also include the recent hire that has only worked one week when the incubation period for COVID19 can last as long 11.5 days (if not longer).  What about the employee that doesn’t interact with customers but is on the night shift re-stocking?  What about the loading dock employee that doesn’t see customers?  The butcher? The baker?

Although the points raised by some of my readers are well taken, I urge you to remember that this only proves the overarching point – there is no basis for a presumption.  If your case is so slam dunk do exactly what we were all trained to do for three years: go to court and prove your case. 

And with that, my beloved readers, your humble blogger wishes you good health and another week surviving cabin fever.