For example, an applicant claims injury to the right knee, the claim is accepted, and he later files an Amended Application for Adjudication of Claim alleging a compensable consequence injury to the left knee, which is disputed.  Must the claims administrator issue a denial of that new part of body within 90-days of that amendment?  A WCAB panel has answered, “No.”

In Hortencia Garcia v. White Apron, Inc/Zenith North America 2012 Cal. Wrk. Comp. P.D. LEXIS 575, a panel of the WCAB affirmed a judge’s rejection of applicant’s argument that her left wrist was a presumed compensable consequence of her accepted thumb injury.  Applicant contended that because the claims administrator failed to issue a denial of the left wrist within 90-days of her amendment adding the wrist, the wrist was therefore presumed compensable per Labor Code section 5402(b).

Applicant’s argument was rejected by the judge and the WCAB because this is a “part of body” issue, not a new claim of injury, and is therefore not subject to the 90-day rule.  No denial of a compensable consequence add-on is required.  Instead, the employer should raise “part(s) of body” as an issue in the Answer to the Amended Application and timely object to any treating physician’s report requesting treatment to the new part of body per Labor Code sections 4061/4062 et seq. so that the issue can be resolved by an AME or panel QME.

It is also noteworthy that the WCAB rejected applicant’s second argument that, because the employer had provided some medical treatment to the disputed left wrist, it was thereby admitting liability to the wrist.  That rejection is consistent with Labor Code section 4909 – the payment of a disputed workers’ compensation benefit is never an admission of liability.

Labor Code Section 4850 salary continuation benefits ARE INCLUDED in the 104-week cap for Temporary Disability (TD)  benefits according to California’s 1st District Court of Appeal in County of Alameda v. WCAB (Knittel). That means 4850 recipients, like most everyone else, are limited to a maximum of 104-weeks of aggregate disability benefits per injury: 52-weeks of 4850 benefits followed by 52-weeks of TD benefits.
The Court of Appeal overturned the decision of the workers’ compensation judge finding that an injured deputy sheriff was entitled to 52-weeks of 4850 salary continuation benefits followed by 104-weeks of TD, for a total of 156-weeks (3 years) of paid leave per injury.
This is a published decision and is therefore binding legal authority in the counties that are within the jurisdiction of the 1st District Court of Appeal, which are as follows: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma.  This includes the WCAB District offices in Oakland, San Francisco and Santa Rosa.
Therefore, it is safe, in our opinion, to rely on this case for claims administration within those counties. The holding of the Court is likely limited to dates of injury on or after January 1, 2008.  The decision may be cited as persuasive legal authority in the rest of California, but is not binding there.
The state Supreme Court may take up the case, and the decision could be de-published by the Court of Appeal or the Supreme Court, which would effectively eliminate the decision as citable legal authority. Therefore, we should all watch carefully for such an outcome.

Knittel Court of Appeal Decision

This is the third and final in a series of posts regarding medical privacy issues in the workplace.  This post concerns drug testing.

An employer with a compelling business interest and a written policy prohibiting drug use or being under the influence of drugs at work, may be able to drug test under limited circumstances.  Having a signed job applicant/employee testing consent form before testing is highly advisable.

Job applicants may be required by the prospective employer to undergo a drug test when the test is part of an already mandated pre-employment medical exam required of every applicant.  Loder v. City of Glendale (1997) 14 Cal.4th 846.   Testing  of current employees is quite restricted under federal, state and sometimes local laws.

Specific medical information revealed in any drug testing should not be sent to the employer.  Rather, the company should only be informed of whether the candidate passed the testing criteria or not. Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3rd 1034, 1038.  The safest course is to have an independent agency administer the test at an outside facility, and report back to the employer with a simple pass or fail result, not a detailed lab report.

Those test results should be kept confidential and maintained separate from personnel files (which may later be subpoenaed or inspected for unrelated matters), in accordance with the California Confidentiality of Medical Information Act.

This is the second in a series of posts regarding medical privacy issues in the workplace.  This post concerns the handling of fitness-for-duty exams.

Fitness-for-Duty exams are allowed notwithstanding constitutional, statutory and common law privacy protections, so long as they have a reasonable relationship to the work to be performed. Garrett v. L.A.U.S.D. (1981) 116 Cal.App.3rd 472.  The ADA prohibits exams to determine the existence or extent of an employee’s disability, except for the business necessity of determining his or her ability to do the work.

Post-offer exams of job applicants are allowed only if all of the applicants in the same job category are required to be examined, not just the disabled applicants.  The offer cannot be withdrawn if the person is capable of doing the essential functions of the job, with or without an accommodation.

Medical information obtained in the fitness-for-duty exam must be maintained on separate forms and in separate, confidential files. Pettus v. Cole (1996) 49 CalApp4th 402 at 446, holds that an employer is not entitled to the full reports of the examiner, only to a limited description of the employee’s functional limitations.

The fitness-for-duty examiner should report back to the employer only as to the employee/applicant’s ability to do the job assigned, and whether he/she poses risks to himself/herself, other employees, or to the public.

Labor Code Sec 222.5 prohibits employers from requiring employees to pay for the fitness-for-duty exams, and mental or physical injuries alleged to have resulted from a proper fitness-for-duty exam are likely to be covered by workers’ compensation, including the exclusive remedy rule.  Semore v. Pool (1990) 217 Cal.App.3rd 1087, 1104.

This is the first in a series of posts regarding medical privacy issues in the workplace.  This first post concerns the handling of medical documents.

Both the ADA and FMLA dictate that any information related to an employee or job applicant’s medical history or current medical condition must be kept confidential in files separate from general personnel information.

The California Confidentiality of Medical Information Act (CCMIA) defines medical information as any individually identifiable information in the employer’s possession or derived from a health care provider regarding medical history, mental or physical conditions or treatment.

The CCMIA requires employers to set up procedures to ensure that this medical information remains confidential and is protected from unauthorized use and disclosure. Civil Code sec 56.20(a).

Employees who handle medical record files should be instructed about maintaining their confidentiality and records should be kept under lock and key, separate from personnel files, and if computerized, protected by access codes.

Disclosure within the company is allowed when: (1) supervisors require information about work restrictions or impairments in order to make necessary accommodations, and (2) when required by first-aid and safety personnel for possible emergency treatment.

There are also exceptions for the employer’s use and disclosure of medical information to the WCAB, information sought as part of an investigation of an on-the-job accident or illness, and maintaining a “workers’ compensation” file regarding an industrial accident.

The physician-patient privilege does not protect communication pertaining to an issue tendered in litigation based on an injury or disability, per Evidence Code sec 996, and employer disclosure of relevant information is allowed in a lawsuit, grievance or claim in which the employee places his or her medical history or condition at issue. Civil Code sec 5620(c).

Labor Code sec 3762 limits an insurer’s disclosure to its insured employer, except work restrictions or impairments necessary to make accommodations and diagnosis information where the diagnosis affects the insured’s premium. There is a general consensus that certain key people, such as a workers’ compensation manager with a self-insured employer, are entitled to the same information as an insurance company.

For example, if a workers’ compensation insurer obtains work restrictions from an injured worker’s doctor, it is permissible for those restrictions to be shared with the insured employer’s liaison per LC 3762. The liaison should then sequester that limited medical information in a separate file under lock and key, but can inform the worker’s supervisor if necessary to make reasonable accommodations.

To make arrangements for a partner to present this to your organization, please contact Tom Richard at tom@rtgrlaw.com or 510-338-3168.

SB 863 PowerPoint link

Disclaimer: This PowerPoint is designed to provide general information and should not be used as a substitute for professional service or advice in any specific situations.  If legal advice or other expert assistance is required, the services of a professional should be sought.

Worker’s Compensation cases are initially adjudicated before the Worker’s Compensation Appeal Board, a separate court system with unique procedural rules and substantive laws. Workers’ Compensation lawyers generally do not practice Employment Law and Employment Lawyers generally do not practice Workers’ Compensation Law.

Workers’ Compensation is relevant to your readers and to all business owners and workers in California. Supreme Court Chief Justice Tani Cantil-Sakauye stressed this point when she addressed a statewide conference of Workers’ Compensation attorneys shortly after beginning her work on the Court. She recognized that Workers’ Compensation Law has a broad public purpose of protecting injured workers while creating a positive business climate for the state.

Every year significant cases in the field are taken up by the Court of Appeal and the California Supreme Court, and there are also frequent, substantial legislative changes. The nearly one-thousand Workers’ Compensation Certified Specialists and other seasoned Workers’ Compensation attorneys, both individually and through practice groups, regularly change the law through legislative advocacy and zealous appellate work.

There is an abundance of qualified CLAY candidates in our field. I see this daily not only in my practice, but also in my volunteer service as the Vice-Chair of the Workers’ Compensation Law Advisory Commission (WCLAC) to the California Board of Legal Specialization at the State Bar.

With the deadline looming for the publication of this year’s CLAY nominations, I urge you to act now to add the Workers’ Compensation category to the nominations list for the CLAY Awards in order to enhance an already strong program.  Thank you.

The study also finds that obesity contributes in significant ways to the length of time during which claimants receive indemnity benefits. Indemnity duration was measured based on temporary and permanent disability benefit payments.

The statistical analysis shows claimants with a co-morbidity indicator pointing to obesity have an indemnity benefit duration that is more than five (5) to six (6) times the value of claimants who do not have this co-morbidity indicator but are otherwise comparable.

A PDF of the complete study can be found by following the link below:

https://www.ncci.com/documents/Obesity-2012.pdf

The Valdez WCAB en banc decision held that medical reports obtained by the applicant outside of the employer’s valid MPN are inadmissible as evidence at the WCAB and do not have to be paid for by the employer. There seems to be more of a consensus that such reports do not have to be paid for by the employer, but less of a consensus that the reports are inadmissible.  The majority of the WCAB en banc held that the reports do not have to be paid for and are inadmissible.  One of the two dissenting commissioners agreed with the majority that the reports have to be paid for by the employee, not the employer, but both dissenting commissioners felt that the reports should nevertheless be admissible as evidence.  The problem with the dissenting view is that these outside-MPN “treating” reports are not really for treatment at all, but are instead fairly transparent attempts to purchase admissible medical-legal reports while circumventing the AME/QME process.   Employers have no such “shadow QME” process available to them, and must rely solely on the often unconscionably slow AME/QME process when disputing medical or benefit issues.

While we watch carefully for the outcome we should be mindful that although the Court of Appeal has agreed to review this case, the WCAB en banc decision of Valdez remains binding legal authority on the WCAB and all its judges unless and until the case is actually overturned by a higher court.  Diggle v. Sierra Sands 70 CCC 1489.

The majority of a divided WCAB panel rescinded the judge’s award because the medical need for the services had not been demonstrated by substantial medical evidence. Bishop v. Zurich Ins. Co.

The applicant had been awarded 77% PD and future medical treatment in 2006.  In 2007, his new primary treating physician wrote a report complaining that the applicant was unable to do yard work or maintain his home.  The doctor prescribed housekeeping, gardening,  pool cleaning services and a weight reduction program, among other items.

The majority of the WCAB panel noted that an injured worker may be entitled to ancillary services as part of a medical treatment award if there is a demonstrated medical need.  That determination depends on the record in each case.  The Board then cited cases where the WCAB was split on whether there was demonstrated need for housekeeping services, and a case where mortgage expenses were found not to be medical treatment (as if we even needed a case to tell us that!)

The panel explained that a doctor’s recommendation for ancillary services must be specific as to the scope and duration of the recommended services, and explain how and why the housekeeping, gardening and pool services were “medical care” and why they were reasonable and necessary on an industrial basis. The doctor should offer analysis of whether the applicant ever performed these activities himself before the injury, whether they are activities of daily living, and whether performance of those activities would have a long-term effect on the applicant disability (as opposed to short-term discomfort.)  The doctor should also make clear that the services are reasonable in light of the scope of medical treatment and its defined goals.

The majority of the panel then remanded the case instructing the judge to reconsider the penalty award.  Interestingly, a dissenting commissioner opined that the applicant was entitled to housekeeping, gardening,  pool cleaning services under the future medical award.