WCDefenseCA

Happy Monday dear readers!

Did we all survive the storm ok?  Everywhere your humble blogger looks, there are trees knocked over, so hopefully everyone is safe!

Well, aside from the other storm getting ready to pound the Bay Area, there’s a smaller storm a brewin’ in our beloved swamp of Workers’ Compensation.  The WCAB has issued an En Banc opinion rescinding several emergency procedures put in place in light of the COVID19 state of emergency in California.

The opinion issued March 22, 2023, so presumably it is effective as of that date, and all C&R’s executed previously are still safe.  But, going forward, any C&Rs to be submitted to the WCAB and executed on or after March 22, 2023, will have to have witness signatures.

Specifically, the WCAB rescinded emergency Orders Misc No. 260, 261, and 266.  What are they?

Misc. No. 260 suspended Rule 10500(b)(6) requiring witness signatures on compromise and release documents.

Misc. No. 261 suspended Rule 10940(b) requiring e-filing (rather than e-mailing certain documents directly to the Workers’ Compensation Judge.

Misc. No. 266 suspended Rule 10789(c) which established walkthrough hours (8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 4:00 p.m.)

In light of this new En Banc Order, when preparing a C&R, we now need to ensure we secure witness signatures; documents must again be properly e-filed; and walkthroughs, which are already in person, may be conducted during the previously established hours. 

Your humble blogger sincerely hopes this is not a sign that Mandatory Settlement Conference and Status Conferences will return to in-person, as the current system of remote hearings appears to be very effective, conserving resources for the parties and expediting resolution of disputes.

For the past three years, there have been many calls urging us to return to “normal.”  However, in  your humble blogger’s even humbler opinion, through the measures necessitated by COVID19, we have discovered some procedures that are better than what used to be “normal.”  Let our urge to escape the horrific effects of the COVID19 epidemic not cause us to dismiss the lemonade we have produced from the lemons we’ve been given.

Onward and upward, dear readers!

Happy Monday, dear readers!

Your humble blogger is returned alive and mostly well from the WCRC in Dana Point!  The conference was wonderful and good times were had.  After so many years in workers’ compensation it’s nice to have such a positive and welcoming community and a lot of fun to see familiar faces again and again.

There were many interesting sessions (including your humble blogger’s of course) and even a know-it-all like yours truly came away feeling that I learned quiet a bit.  Side note, dear readers, that if you missed the Special Mission Impossible presentation at WCRC, feel free to join our webinar this month as we’ll be presenting it to the internet connected public.

While discussing the effects of not submitting Medicare Set-Asides for CMS approval, the discussion turned to a certain panel decision issued last year, Harrison v. Canyon Springs Pools and Spas, Inc.  In that case, the WCAB denied defendant’s petition for reconsideration where applicant successfully had a C&R rescinded!  Isn’t that a dreadful feeling – because even when your C&R is approved and you’re “done”, you’re still not done!

Applicant, while represented, went to an AME who ultimately found no impairment and thought applicant was exaggerating his symptoms based on observing him through a window.  Applicant, at some point, entered into a C&R with defendant, and ultimately dismissed his attorney. 

The parties obtained a “zero dollar” MSA and did not submit it to CMS.  However, applicant was charged with approximately $900 by CMS and required to pay that money to CMS, at which point he sought to set aside his C&R.  The trial judge did so, reasoning that there was “mutual mistake” on the point that CMS would accept a zero dollar MSA, which it apparently did not.

The WCJ also ruled that the parties were both mistaken in concluding that the AME found no industrial injury – he did, just no impairment and some harsh criticism of applicant for alleged malingering. 

The WCJ ordered the C&R set aside and rescinded the Order Approving Compromise and Release and suggested the parties obtain substantial medical evidence in support of an amended C&R.

So, dear readers, what does that mean for us?  Earlier, your humble blogger wrote about another case where the WCAB not only allowed applicant to assume the risk for an MSA which CMS had rejected as being $500,000 light, but also allowed him to self-administer his MSA over the objections of defendant.  In this case, however, the WCAB determined that it must be mutual mistake if the parties agree to a $0 MSA without seeking CMS approval.

Since CMS’s enforcement mechanism are almost entirely based on refusing to provide benefits to the injured worker, isn’t the assumption that applicant is always assuming the risk?

Perhaps it makes sense to have C&Rs clearly reflect that there is no mistake – applicant is knowingly assuming the risk that the $0 MSA might not be recognized by CMS.  But, as the WCJ pointed out in the Harrison matter, “[i]t could not possibly have been the parties’ intent to subject applicant to unlimited bills from Medicare, potentially up to the entire amount of the settlement.  If the undersigned had understood that to be the intent of the parties, the settlement would never have been approved.”

The WCAB is consistently inconsistent in this regard because there are rarely monolithic rulings binding on all the WCJs and on ever WCAB panel of judges – en banc opinions occurs but certainly with not even close to the frequency of panel decisions. 

What do you think dear readers?

Happy Monday, dear readers!

Your humble blogger is back from his sojourn and is finally resuming his duties as the humble blogger, a post left mournfully vacant for the last few weeks.

Well, the news I bring today isn’t happy news at all, at least as far as your humble blogger is concerned.  The Department of Industrial Relations has announced the return of in-person walkthroughs effective September 6, 2022 (except in Eureka), and the end of the LifeSize virtual walkthrough.

Next month, we will be doing our walkthrough as we did many years ago… putting on not just suit jackets and ties, but pants and socks and shoes as well.  We’ll also have to travel down to the boards themselves.

Of course, the option remains to e-file the settlements NOT as a walkthrough but your humble blogger must object to this shift.  Settlements are not meant to be contentious or litigation.  They represent a resolution of a dispute – musical chairs with enough chairs for each player; everyone’s a winner!

With remote walkthroughs, parties had an efficient way of getting settlements approved promptly.  This was done without the added cost of a physical appearance and travel.  It was done without the risk of spreading COVID, catching COVID, or adding to the statistics for car break-ins and spiraling violent crime in the Bay Area. 

Hopefully, the DIR will see that remote walkthroughs were significantly more efficient and ended up with more file closures and return to virtual walkthroughs.  At the very least, your humble blogger respectfully submits that virtual walkthroughs should remain an option.

The only bright side to all this, as far as your humble blogger is concerned, is that now we have the option to walk through more than just settlements – petitions to compel depositions and QME examinations are also open.  Further, appearing in San Francisco will give your humble blogger an excuse to visit the very best Chinese Food restaurant in the known world, Henry’s Hunan.

Your humble blogger is happy to be back, dear readers – thanks for sticking around to wait for me!