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By Colleen S. Casey

Copyright © 2017

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The following material and any opinions contained herein are solely those of the author and are not the positions of the Division of Workers’ Compensation, Department of Industrial Relations, the WCAB or any other entity or individual.

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1. Service of Evidence2. Service of Sub Rosa Videos3. Use of Worker’s SSN4. Causation5. Direct Injury v. Compensable

Consequence6. Chart of MPN/IMR v. UR/IMR7. For postsurgical, 24 PT visit limit

may not apply8. Failure to Appear at Trial9. Beware Paragraph 3 in C&Rs10. Correcting Clerical Errors

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Will a party be sanctioned for failure to serve all medical reports on opposing counsel?

See 8 Cal Code Regs §10561 - failure to timely serve evidentiary documents “shall be deemed” bad faith action or tactic unless failure resulted from mistake, inadvertence, or excusable neglect.

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Is it OK to serve sub rosa videos for the first time at the MSC, even though opposing counsel has made ongoing requests for videos?

See Monsanto Company, Ace American Insurance Company, administered by Sedgwick Claims Management Services, v. WCAB, McMillin, (2014), 79 Cal. Comp. Cases 730

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Is an injured worker required to disclose their SSN in order to file a workers’ comp claim?

8 CCR 10400(h) – “Filing and Service of Application Disclosure of IW's SSN is voluntary.A failure to provide a SSN will not have any adverse consequences. Although an IW is not required by law to provide an SSN, he or she is encouraged to do so. SSNs are used for id and verification purposes in order to administer the WC system.

A SSN will not be disclosed, made available, or otherwise used for purposes other than those specified, except with the consent of the applicant, or as permitted or required by statute, regulation, or judicial order.”

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In order for a worker’s death to be considered industrial,

must industrial exposure be the primary cause of the death?

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Causation of injury - If cause of IW’s injury or death = 1% industrial, IW gets 100% MT needed to treat injury, or in the case of death, dependents gets 100% of the death benefit. (No apportionment) Involves AOE/COE analysis

Causation of disability affects liability for PD - If cause of IW’s disability = industrial, IW gets PD% payout, less % of apportionment to non-industrial factors

See Supreme Court case: South Coast Framing v. WCAB, (2015) 80 CCC 489

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Post SB863 DOI > 1.1.2013:

If a later injury occurs as a result of the initial industrial injury, it is considered a compensable consequence of the initial industrial injury and the IW is entitled to:

• Medical Treatment • Increase in PD to reflect level of

compensable consequence, except for psych, sexual and sleep injuries (Exceptions apply re psych compensable consequence injuries)

• Death benefits, if applicable

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LC §4660.1(c )(1) provides:

“…there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury.

Nothing in this section shall limit the ability of an IW to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.”

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Bar does not apply to direct psych, sex or sleep injuries, post 1/1/2013.

The bar only applies to compensable consequencesof physical injuries.

Examples:

• Bank teller watched a robber kill her co-worker. Any resulting psych injury would be considered a directpsych injury, as opposed to a psych compensable consequence of an industrial injury.

• A firefighter gets industrially caused prostate cancer. This is a direct injury to his sexual organs, and not a compensable consequence of an industrial injury.

• Montenegro v. City of Los Angeles, 2016 Cal. Wrk. Comp. P.D. LEXIS 129 (NPD)

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Burden of Proof for Direct Psych Injury:

Rolda v. Pitney Bowes (2001) 66 CCC 241 (En banc) (per LC §3208.3)

1. Did psych injury involve “actual events of employment” (legal issue – IW’s b/p)

2. Is there > 50% industrial causation of the psych injury? (medical issue– IW’s b/p)

3. Were personnel action(s) involved? If so, were they lawful, nondiscriminatory & in good faith? (legal issue – D’s b/p)

4. Were personnel action(s) the substantial cause (35-40%) of the psych injury (medicalissue – D’s b/p)

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(1) IMR within the MPN:

SB899 (2004 reform) added

LC §4616.4 to define an IMR process for IWs who objected to MPN’s PTP MT request.

IW is entitled to 3 medical opinions re MT and then IMR.

See 8 CCR §§9768.1 –9768.17.

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(2) IMR as Appeal from UR

SB863 (2012 reform) added

LC §4610.6 to provide IMR

process to be used by all parties

as the sole appeals process from a

UR decision for all MT disputes

for all dates of injury.

See 8 CCR §9792.10.3 –9792.10.9.

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For a WCAB chart comparing the two types of IMR, see the WCAB Panel decision of Willoughby, v. Hoge, Fenton, Jones & Appel, American Home Assurance Co/AIG

2016 Cal. Wrk. Comp. P.D. LEXIS 512

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MPN IMR UR IMR

Occurs where an employee challenges the MPN treating doctor's diagnosis or treatment. 7

(Lab. Code, §§ 4616.3, 4616.4.)

Occurs where the treating doctor 8 requests treatment and the employer objects. (Lab. Code, §§ 4610, 4610.5.)

The injured worker can obtain a second and third opinion from another MPN doctor, (Lab. Code, § 4616.3(c).)

No second or third opinion process is provided by statute. (See, Lab. Code, § 4610.5.)

The IMR reviewer shall conduct a physical examination of the injured worker upon request. (Lab. Code, § 4616.4(e).)

The IMR review is a records review only. 9 (Lab. Code § 4610.5(1) and (m).) The reviewer does not examine the injured worker and the identity of the reviewer is anonymous. (Lab. Code, § 4610.6(f).) However, the reviewer may request additional records, (Lab. Code, § 4610.6(b).)

The IMR reviewer may order additional diagnostic tests in order to make a correct determination. (Lab. Code, § 4616.4(e).)

The IMR reviewer may not order additional diagnostic tests needed to determine the necessity of the medical treatment. (See, Lab. Code, § 4610.5.)

The Workers' Compensation Appeals Board (WCAB) may review all aspects of the IMR decision for error. (Lab. Code, § 4604.)

The scope of the WCAB's review is limited. (Lab. Code, §§ 4604, 4610.6(h) and (i).)

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SB899 (2004 reform) For DOI > 1.1.04, the # of visits are limited to:

•24 chiropractic

•24 occupational therapy

•24 physical therapy

(LC §4604.5(c)(1))

Note Exceptions:

§9792.24.3 Post-Surgical MT Guidelines

Provides exceptions to 24 visit cap and indicates frequency and duration of postsurgical treatment for specific surgeries.

EXAMPLE: Postsurgical treatment, arthroplasty, knee: 24 visits over 10 weeks

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A. Is it mandatory for the applicant to appear at the MSC? Yes.

B. Is it mandatory for the applicant to appear at trial? No. If the defense wants to question the applicant at trial, they should subpoena the applicant. See 8 CCR 10562.

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If a party fails to appear at trial, may the trial go forward?

LC 5506 does not allow defaults, but it is in the WCJ’s discretion whether to go forward. See Idaho Maryland Mines Corp. v IAC (Hattox)(1959) 174 CA2d 693, 696, 24 CCC 238.

If the trial does go forward, after the trial, the WCJ will serve the MOH and summary of evidence on all parties, along with a NIT to submit the case for decision based on that evidence, absent objection from the non-appearing party. If the non-appearing party submits an objection to the NIT based on good cause, the WCJ will most likely reset the matter for a further hearing. 20

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Beware Paragraph ¶3 in the Compromise & Release:

C&R ¶1 - “State with specificity the date(s) of injury(ies) and what part(s) of body, conditions or systems are being settled.”

C&R ¶2 - provides for release of liability of defendant from all claims that may arise in the future by applicant “as a result of the above-referenced injury(ies).”

C&R ¶3 - “This agreement is limited to settlement of the body parts, conditions, or systems and for the dates of injury set forth in Paragraph ¶1 despite any language to the contrary in this document or any addendum.” (Emphasis added.)

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Beware Paragraph ¶3 in the Compromise & Release:

Orellana v. United Care Services, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 761

Johns Mansville, self insured, administered by ESIS v. WCAB, (Cooper), 2016 Cal. Wrk. Comp. LEXIS 2 (Writ Denied)

Rodriguez v. Air Serv Corporation, Employers Self Insurance Services, Incorporated, 2015 Cal. Wrk. Comp. P.D. LEXIS 728

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§10858. Correction of Errors.

Before a petition for reconsideration is filed, a WCJ may correct the decision for clerical, mathematical or procedural error or amend the decision for good cause…

May clerical errors be corrected at any time?

• Toccalino v. WCAB, (1982) 128 Cal.App.3d 543 [47 Cal.Comp.Cases 145, 154–155]. "The WCAB or a WCJ may correct a clerical error at any time and without necessity for further hearings, notwith-standing the lapse of the statutory period for filing a petition for reconsideration…It is apparent that the omission of the penalty from the award was inadvertent and this clerical error alone… can easily be corrected....”

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May clerical errors be corrected at any time?

• Zendel v. County of Los Angeles, PSI, 2015 Cal. Wrk. Comp. P.D. LEXIS 244, “The term ‘clerical error’ includes all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. In determining whether an error is clerical or substantive, it must be determined whether the mistake was made in rendering the judgment or in recording the judgment which was rendered…” In this case, the WCJ inadvertently mixed up the date of injury and correct ADJ number.

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May clerical errors be corrected at any time?

• McDaniel v. WCAB, (2016) 81 CCC 373, “a court has continuing jurisdiction to correct clerical errors, the change of an indemnity rate is not the correction of a clerical error but rather a substantive change in the award.”

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