California: Medical-Legal Evaluations During the Covid-19 Pandemic: Another Twist

Does Harris Contradict Rosenbrook?

On February 9, 2021, an Appeals Board panel (panel) affirmed a decision that ordered a comprehensive medical-legal evaluation to be conducted as a telehealth appointment under Emergency Rule 46.2 (8 Cal. Code Regs. § 46.2). That rule was adopted to promote health and safety concerns arising out of the COVID-19 pandemic. The case is Rosenbrook v. Knight-Swift Transportation Holdings, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 16, and it is covered in the March 1, 2021 edition of the LexisNexis Workers’ Compensation Newsletter (Vol. 12, No. 9.) The panel agreed with the WCJ that defendant acted unreasonably in refusing to agree to a telehealth evaluation, particularly since an in-person appointment would necessitate the injured worker to travel from out of state by air with an overnight stay, exposing him to a risk of becoming infected with the virus. Just two weeks later, however, another panel reached a different conclusion—that panel affirmed an order over defendant’s objection allowing an injured worker residing out of state to travel to California for in-person comprehensive medical-legal evaluations. Defendant argued that the order contravenes California public policy and CDC guidelines and exposes it to potential liability if the injured worker were to become infected with COVID-19. That decision is Harris v. Oakland Raiders, 2021 Cal. Wrk. Comp. P.D. LEXIS 17. It is not uncommon for different panels to reach different conclusions on similar facts. Rosenbrook and Harris seem in opposition, but are they really? A closer look suggests that Harris doesn’t contradict Rosenbrook.

Harris and Rosenbrook are similar in that the dispute in both cases concerned a comprehensive medical-legal evaluation of an injured worker living outside of California who would be required to travel to California for the examination during the current COVID-19 pandemic. But in significant respect, the similarity between the two cases ends there. In Harris, the injured worker wanted to travel to California for the examination, motivated by a desire to move his old case forward toward resolution. Defendant, on the other hand, wanted the exam to be delayed indefinitely until such time as it is safe to travel again. Defendant argued that out of state travel to California violates California’s public health policies and CDC Guidelines, and exposes it to liability if the injured worker were to contract COVID-19 in connection with the examination.

In Rosenbrook, the injured worker opposed defendant’s efforts to schedule an in-person comprehensive medical evaluation in California out of fear that air travel and lodging required to facilitate his attendance at the examination would place him at risk of becoming infected with the virus and passing it on to family members. Rather than delay the evaluation process, however, the injured worker requested the comprehensive evaluation be conducted by telehealth in accordance with Emergency Regulation section 46.2 (8 Cal. Code Regs. § 46.2.) That regulation was adopted in response to Governor Newsom’s Executive Order N-33-20, directing all Californians except for specified essential workers to stay at home so as to help stop the spread of COVID-19. The emergency regulation allows for a telehealth comprehensive medical-legal evaluation when specified criteria are met. Defendant objected to a telehealth evaluation and argued that the injured worker did not satisfy the requirements of the emergency regulation. An expedited hearing was held and the WCJ found that the injured worker demonstrated compliance with the regulation, and ordered the evaluation be conducted via telehealth. Defendant sought reconsideration and the panel affirmed the WCJ’s decision.

In contrast, the dispute in Harris was not whether the comprehensive medical-legal evaluation should be conducted by telehealth under the emergency regulation, but whether an in-person evaluation should be delayed until such time as it is safe to travel from out of state to California. The injured worker was eager to obtain in-person comprehensive medical evaluations in internal medicine, neurology, and otolarnygology and made clear his willingness to travel from his home out of state to obtain those evaluations. Defendant expressed health and safety concerns and fear that it might have liability should the injured worker become infected with COVID-19 as a consequence of attending the in-person evaluations. It requested an indefinite delay in scheduling the three in-person comprehensive evaluations until such time as someone, presumably the CDC, declares that it is safe to travel again. A priority conference was held and the WCJ ordered that in-person medical-legal evaluations be scheduled. The WCJ reasoned that the risks associated with travel during the COVID-19 pandemic can be mitigated by following appropriate health and safety guidelines, and that it should be up to the injured worker not defendant to determine whether the out of state trip can be safely taken. The WCJ also explained that the evaluating physicians, not defendant, should determine whether an examination can be safely conducted. The panel affirmed the WCJ’s decision.

What can we glean from these two panel decisions? Foremost, although both issued in close proximity to the other and both concerned the comprehensive medical-legal evaluation of an industrially injured worker, the actual dispute in each case is entirely distinct. At first glance, the panel decisions might seem antithetical, but they are not. Rosenbrook allowed the evaluation of the out of state resident to be conducted by a telehealth appointment. Harris ordered the evaluation of the out of state resident to be conducted in-person in California. We are left to ponder what the result might have been in Harris if defendant had insisted that the comprehensive medical-legal evaluations be conducted without delay by telehealth appointments under the emergency regulation, but the injured worker demanded that they proceed forthwith as in-person examinations in California. That question, however, is for another day.

Reminder: Board panel decisions are not binding precedent.

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