1. Apportionment Pitfalls and Documentation
Key Trend
Many recent WCAB decisions have emphasized the need for clear, well-supported medical opinions on apportionment. Panels repeatedly admonished parties where physicians simply assigned percentages with inadequate rationales or failed to distinguish non-industrial from industrial factors. Adjusters often faced delays and higher litigation costs when an inadequate physician report triggered supplemental QME/AME evaluations or depositions.
Best Practices
- Obtain Clarification Early: Ensure doctors provide thorough explanations under Labor Code § 4663. If the physician’s report is vague on non-industrial conditions, request a supplemental report promptly.
- Use Letter Writing Wisely: Send targeted letters to QMEs/AMEs emphasizing the need for a precise discussion of how each factor contributes to the applicant’s permanent disability.
- Monitor Pre-Existing Conditions: If the applicant has documented prior injuries or pre-existing degenerative issues, gather those records early and get the doctor’s apportionment analysis in writing.
2. Telehealth QMEs and Record Review Disputes
Key Trend
The post-pandemic reality has increased telehealth QME evaluations, but January panel decisions reveal disputes over the sufficiency of record review, the applicant’s right to an in-person exam, and technical issues such as connectivity problems. Several decisions involved challenges to QME reports where the applicant or defense questioned the exam’s thoroughness.
Best Practices
- Set Clear Protocols: When scheduling telehealth QMEs, confirm all parties agree to the format. Document that the applicant received proper instructions, technology assistance, and disclaimers about privacy and confidentiality.
- Ensure a Complete Record: Provide the QME with all relevant medical records, diagnostic results, and prior reports in an organized manner. In telehealth settings, the QME often relies heavily on those records to compensate for limited in-person observation.
- Flag Potential “Red Flags”: If you suspect a complex injury or a need for hands-on physical evaluation, consider whether an in-person exam is more appropriate.
3. Concurrent Employment and Wage Calculations
Key Trend
Several panel decisions turned on accurate average weekly wage (AWW) determinations, particularly where applicants held more than one job at the time of injury or had irregular/seasonal wages. Panels reversed or modified judge rulings when adjusters omitted concurrent earnings from secondary employers or used an incorrect method for calculating partial weeks worked.
Best Practices
- Ask Early: When taking an initial statement, verify all sources of income (part-time or gig-economy roles can be overlooked).
- Gather Pay Records: Collect paystubs, W-2s, or 1099s from any concurrent jobs. If the applicant claims earnings you cannot verify, follow up in writing to confirm or deny.
- Document the Method: Use the correct formula under Labor Code §§ 4453 and 4453.5. Keep in mind the unique pay structures of seasonal or part-time industries (e.g., agriculture, retail).
4. Utilizing Vocational Experts Properly
Key Trend
Recent panel decisions show heightened scrutiny over vocational expert reports—particularly in cases where the applicant alleges 100% permanent and total disability (LeBoeuf / Ogilvie scenarios). Panels welcomed thorough, well-documented vocational reports aligned with the relevant medical restrictions, but they disfavored incomplete or speculative analyses.
Best Practices
- Team Up Early: If you anticipate a vocational dispute, consider engaging a reputable vocational counselor before the case enters full-blown litigation.
- Cross-Check the Medical: Make sure the vocational expert’s assumptions match the actual QME/AME restrictions and apportionment percentages.
- Beware of Non-Industrial Factors: In line with Nunes, confirm that the expert distinguishes between industrially related disability and the applicant’s non-industrial constraints (e.g., minimal education, language barriers, unrelated health issues).
5. Timeliness and Accuracy of Benefit Notices
Key Trend
Multiple panel decisions addressed penalties and sanctions when adjusters issued late benefit notices or provided incomplete information about benefit rates. The WCAB emphasized that “substantial compliance” is not enough if it causes applicant confusion or shortchanges due benefits.
Best Practices
- Calendar All Deadlines: Use a tickler system for timely notices of denial, delay, benefit commencement, and any adjustments in TTD or PD.
- Double-Check Calculations: A small error in TTD rate can lead to a bigger penalty later. Train staff to verify average weekly wage computations thoroughly.
- Document the File: Keep a clear paper trail of when notices are mailed and confirm address accuracy.
6. Disputes Over Medical Control and MPN Transfers
Key Trend
In multiple panel rulings, applicants challenged the employer’s Medical Provider Network (MPN) transitions, claiming inadequate notice or alleged “post-termination” injuries that negated MPN control. Panels generally upheld MPN control if the employer properly followed notice protocols but also stressed the employer’s burden to prove compliance.
Best Practices
- Confirm MPN Notices: Ensure you can prove the injured worker received the MPN notification packet (with date, signature, or mailing proof).
- Check Procedural Requirements: If an applicant requests a secondary opinion or to change physicians within the MPN, respond promptly and follow the statutory guidelines.
- Audit MPN Physicians: Keep a current and valid MPN list. If the worker complains about availability, investigate quickly. A missing or unqualified specialist can jeopardize your MPN defense.
7. Psych Claims: Stressors and Non-Industrial Factors
Key Trend
Mental-mental and psych overlay claims remained a hot topic. Several recent panel decisions underscored that an applicant must have predominantly industrial causation (over 50%) for a compensable psych claim, with panels scrutinizing personal stressors. For adjusters, the key hurdle is ensuring the QME or PTP adequately identifies causation percentages and apportionment.
Best Practices
- Gather Non-Industrial History: If you suspect significant personal stressors (financial hardship, family illness, etc.), gather evidence early and get the QME to address them.
- Watch the “6-Month Rule”: Confirm if the applicant worked at least six months before the alleged psych injury (Labor Code § 3208.3(d)).
- Comprehensive Statements: If the injury is cumulative or involves alleged harassment or wrongful termination, get a thorough statement. Provide that narrative to the QME.
Final Thoughts: A Proactive, Organized Approach
The overarching lesson from recent WCAB panel decisions is that thorough, organized, and timely claims handling remains the gold standard. Claims adjusters who:
- Obtain complete and accurate medical data (including supplemental QME reports as needed);
- Document every benefits determination and apportionment factor;
- Respect statutory timelines for notices, MPN transitions, and communication; and
- Address vocational or psych issues early and comprehensively
are more likely to avoid pitfalls, reduce litigation expenses, and promote swift resolution.
Staying on top of these recurring issues—and adopting the recommended best practices—will help ensure compliance, mitigate penalties, and facilitate fair settlements for all parties involved.
Legal Disclaimer
This blog post is provided for general informational purposes only and does not constitute legal advice. Reading this material does not create an attorney-client relationship. Every claim is fact-specific, and laws may vary or change over time. For advice about your particular situation, consult a qualified attorney. We do not assume liability for actions taken based on the information contained herein.
About Yrulegui & Roberts
At Yrulegui & Roberts, we are dedicated to defending employers, insurance carriers, and third-party administrators in all aspects of California Workers’ Compensation claims. Our experienced attorneys and staff stay ahead of legislative and case law developments to deliver comprehensive, cost-effective solutions to our clients. To learn more about how our team can help with your specific needs, visit our website or contact us today at (559) 222-0660.
