WCDefenseCA

Happy Monday, dear readers!  Your humble blogger hopes the October winds are kind and forgiving in how they howl across California.  Those winds bring Halloween closer and closer, along with trick-or-treaters and scary movies.  Dentists rejoice as with every “trick-or-treat” a new patient is created.

But Halloween isn’t the only thing on the wind – as always, the times they are a-changin’.  Governor Newsome has announced that he intends to lift the COVID state of emergency in February of 2023.  This shouldn’t feel like change – it should be reverting to some semblance of normal.  Of course, how do you go back to normal after all the patent insanity we saw since March of 2020?

But, in the more practical sense, we can expect to see some changes procedurally and legally in the handling of claims.

For example, remember 8 CCR Section 46.3?  This extended the time for the initial appointment by a QME from 60 days to 90 and allowed for telehealth evaluation.  Well, subsection (a) of 46.3 states that this is only “during the period that this emergency regulation is in effect” and this will continue to be in effect until January 16, 2023.  Will we still see machinations to make section 46.3 permanent when there is no longer a COVID emergency?

What about hearings at the WCAB?  Think of all those billable hours defendants didn’t have to pay in travel time because status conferences and MSCs were done via telephone.  Will we transition back to in-person hearings for everything now?  The “emergency” that prompted this shift is about to be declared over, after all.

Now how about depositions?  As a defense attorney for some thirteen years now (just long enough to receive my California Bar Mitzvah – get it… Bar Mitzvah, but California Bar… tip your waitress folks!) your humble blogger isn’t the first to accurately compare the deposition of an injured worker, especially in the Bay Area, to herding cats.  If the stars align, and proper sacrifices have been given unto the appropriate deities, applicant, applicant’s counsel, the court reporter, and the interpreter will all appear on time at the right place.  Often enough, one of these professionals would not attend, if not the deponent him or herself!

With remote depositions, this if fixable – a phone call can find another interpreter or another court reporter (or, if need be, another defense attorney to pitch hit at the last moment).  And, if applicant really does flake, the cost is some vendor fees that can be demanded as costs.  The defense attorney has not invested Bay Area travel times in the aborted deposition.

Well, fortunately, SB 1146, signed by the Governor in September of 2020, has made electronic service mandatory and remote deposition available on a permanent basis, regardless of the California state of emergency.

Your humble blogger hopes that remote appearances will remain, at the very least for status conferences and mandatory settlement conferences.  The time saved not pointlessly sitting in a car, and the calendar shortened by appearing at multiple venues in a single day is just gold.  There is an obligation, of course, to provide speedy justice.

Anywho, dear readers, it’s time to brace ourselves for a new shift.  It’s not entirely clear how much of the “emergency” way of doing things will remain and how much will go back to “normal”, but come February, we should all be nimble, alert, and, much like a 6-year-old at a urinal: on our toes.

As always, your humble blogger will be here, at your service, to make lame puns and sarcastic remarks about or unfortunately worsening situation. 

And we’re back for another glorious Wednesday in California’s workers’ compensation swamp, dear readers. 

If you’ve been waiting for the emergency telehealth rules to expire, your humble blogger has some rather bad news for you, dear readers.  While the current 8 CCR 46.3 are set to expire on October 18, 2022, the DWC intends to extend the regulations another 90 days.

What’s important about these regulations?  The regulations allow QMEs and AMEs to conduct medical-legal evaluations under certain conditions.  Previously, Rule 34(b) only allowed examinations to be conducted physically in the office of the QME or AME.

Lots of your humble blogger’s colleagues have objections to telemedicine med-legal examinations, and your humble blogger certainly sees merit in these arguments – a physical exam cannot be properly done over video, nor can range of motion be adequately measured; an examinee can be fed information by someone off screen or terminate the evaluation abruptly and claim technical difficulties.

Naturally, some folks in the workers’ compensation community are cheering the anticipated end of telemedicine examination.

If the WCAB proceeds with extending the telemedicine regulation, we can expect the status quo for another 90 days afterwards, unless the regulation is made permanent, rather than part of the “emergency.”

As my well-informed readers will recall, the WCAB recently had attorneys return to in-person trials and expedited hearings back in March of this year.  So, your humble blogger can’t help but ask… what is the difference between the two?  What compelling need is there for in-person trials that is not needed for med-legal examinations?  Or, by contrast, what makes med-legal examinations effective when conducted via telemedicine that doesn’t equally apply to in-person trials?

As any Canadian Goose farmer will tell you in between giant mouthfuls of maple syrup and glances at the local Canadian hockey game, what is good for the goose is good for the gander.

In any case, dear readers, I think we can all feel it in the air.  As the panic of the pandemic is dissipating and we’re all getting on with our lives – returning to normal, rather than arriving at a “new” normal – we are coming to a very important fork in the road: is workers’ compensation going to go effectively remote, with video deposition, telemedicine, and video-trials, or will we revert back to an in-person system?