No Refs, No Games

With workers compensation claims all but certain to spike with the COVID-19 crisis, attorneys at Roxborough, Pomerance, Nye & Adreani LLP are in a prolonged fight to get evaluators back in the field.

Typically representing employers in workers' compensation disputes with insurance carriers, partner Nicholas P. Roxborough said the firm counts among its clients more than 100 qualified medical evaluators, or QMEs, who are physicians certified by the Division of Workers Compensation to evaluate claims.

"They're referees in workers compensation disputes," Roxborough said. "They're hired when the injured workers' attorneys and the defense attorneys for the employers or the carriers can't agree on certain issues with the nature of the injuries."

And just like professional sports, you can't say you've had a fair match without a referee. Many QMEs are over 65 years old and considered high-risk for Covid-19, Roxborough said, or they have otherwise been sidelined by federal and state orders limiting movement and in-person meetings.

"Right now, everybody's essentially waiting for the referees," Roxborough said. "You can't play the game without a referee."

While the DWC issued a memorandum in mid-March encouraging "all parties to consider creative solutions appropriate to providing care to injured workers' during the pandemic," including telemedicine, Roxborough said they failed to authorize remote QME work.

On March 25, Roxborough and senior firm attorney Burton E. Falk gave notice to DWC administrators on behalf of California Medical Evaluators Inc. seeking a temporary restraining order within days to compel unconditional authorization and immediate acceptance of remote evaluations.

The DWC partially implemented the emergency measures the firm was seeking a few days later, but Roxborough said discussions to secure full implementation remain a work-in-progress.

"Meanwhile, QMEs are supposed to be seen within 30 days," Roxborough said.

While the firm's advising on a federal level, Roxborough said it's still wrangling with state regulators to get QMEs back into a position where they can do their jobs. Gov. Gavin Newsom's coronavirus guidelines on telehealth services issued March 4 "basically followed the guideline the DWC came out with," Roxborough said, failing to implement the emergency measures taken by other states.

Roxborough said the issues faced by the firm's QME clients are fairly indicative of the problems most of its employer clients are facing. Already dealing with pre-existing regulation issues, he said they're suddenly saddled with more in the wake of COVID-19.

Given the historical trend set by the 2008 recession, and the likelihood of a similar economic downturn in the near future, any longterm recovery plans will also have to deal with a potentially unprecedented rise in workers compensation claims. At the same time, there's a large shortage of QMEs to keep the claims process moving forward.

"They're just trying to make sense with it," Roxborough said. "There's going to be more workers compensation claims, there's going to be a growing demand and a shrinking supply."

The firm has also begun advising clients about the potential impact of regulatory changes to payroll reporting and employee classification proposed by the Workers' Compensation Insurance Rating Bureau.

The changes proposed would reclassify how workers compensation claims related to COVID-19 are reported under a catastrophe code, excluding them from individual employer's experience modification claims and reducing overall premium costs.

"It might not be stuff that matters to lawyers, but it's stuff that matters to them," Roxborough said of his clients. "It's in our own interest and the interest of our clients that they survive so that we have clients when this is all over."

The firms' answers are particular because the client questions have been particular, said Roxborough Pomerance employment partner Michael Adreani.

Michael Adreani

"It's everything from a grocery store client with a question like, 'What do I do with my drinking fountain?'" Adreani said. "A California employer has to provide drinking water to its employees, you have to have a drinking fountain. But that's probably not the most safe thing you can do right now."

The longer shutdown orders have remained in place, Adreani said, the more clients are curious about the classification of an "essential business."

"Companies are coming up with ways to stay open," he said.

While clients might worry about accusations of subterfuge from the city, county and state, Adreani said many have legitimate reasons to stay open that they're not considering. He offered as an example a major clothing client that closed in compliance with retail shutdown orders.

"But there's a real counter-argument because they don't just sell clothing, do they? They sell nurses scrubs; they're a major provider," Adreani said.

Those kinds of blurred lines are creating legal challenges, Adreani said, and the firm's already filing litigation to get some clarity on behalf of its clients. Absent legislative intervention, he expects that kind of litigation will become increasingly common.

"There's going to be a litigation spike like we've never seen, and it's not just going to be workers compensation disputes," Adreani said, offering as an example lawsuits over employee temperature checks and adverse actions taken against employees who refuse to wear face masks.

To that end, Roxborough said the firm's gearing up for longterm legal engagements on behalf of its clients, many of whom have been with the boutique firm since not long after its 1996 founding.

"They're good clients, good people," he said. "Many have been our clients for as long as they've been in business."

Roxborough said he'd like to keep things that way.