IEA Announces Brian Allain as New Chief Executive Officer


El Segundo, Calif., January 20th, 2022 – The Insurance Education Association (IEA), a leading provider in professional training programs in workers’ compensation, disability management, human resources, and risk management, announces that Brian Allain has been named as Chief Executive Officer.

Mr. Allain has more than 20 years of experience in marketing and sales, including over a decade of senior management experience, strategic development, and plan execution at Professionals In Human Resources Association (PIHRA), most recently as Chief Operating Officer.

Michael Bell, IEA’s Managing Director states that “since its re-launch in 2020, IEA has renewed its dedication to leading the industry in career-building professional development and training. With his impressive track record helping organizations devise and implement strategies that support their core vision, we are excited to welcome Brian Allain as he builds the next chapter in IEA’s 150-year success story.”

“IEA has a long history and strong reputation in the industry. I am excited to join the team and build on that reputation.” said Mr. Allain.  “IEA has great educational content and a talented management and operations team that uniquely positions the organization for continued success. I look forward to building on the brand and history while moving forward in a new direction with a new vision.”

Mr. Allain joins the team as IEA prepares to launch its Spring 2022 schedule of classes, in workers’ compensation, disability management, and risk management.

ABOUT IEA

IEA creates and delivers professional development and continuing education in workers’ compensation, disability management and risk management. With more than 150 years in service, it provides a range of courses, webinars, and on-demand training to help insurance professionals meet their career development goals. Learn more at www.ieatraining.org.

Establishing Permanent Total Disability with Medical and Vocational Evidence


Establishing Permanent Total Disability With Medical and Vocational Evidence.

by Sure Log

It has long been recognized that an employee’s ability to participate vocational retraining is a significant factor that must be considered in assessing the worker’s permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee’s inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, in Ogilvie v. WCAB (2011) 76 CCC 624, the Court of Appeal held that an employee could still rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation.

Although vocational evidence is often used to establish that an employee is not amenable to rehabilitation, the WCAB also commonly relies on medical evidence to establish a worker’s inability to work, and permanent total disability. In Applied Materials v. WCAB (2021) 86 CCC 331, however, the 6th District Court of Appeal held that the WCAB erred in awarding 100 percent permanent disability based on a psychiatric QME’s opinion that a worker’s industrial post-traumatic stress disorder (PTSD) rendered her unable to work. It found that the QME was not a vocational expert and was not qualified to opine on the worker’s ability to participate in vocational rehabilitation, take advantage of training opportunities, find work from a vocational perspective or that she was 100 percent disabled from working in the open labor market. So, Applied Materials raised questions as to whether a medical opinion alone could support an award of permanent total disability.

In a recent decision, Wilson v. Kohls Department Stores, 2021 Cal. Wrk. Comp. P.D. LEXIS 322, the WCAB provided some answers. In that case, the applicant sustained an admitted injury to her lumbar spine, left ankle and in the form of complex regional pain syndrome, and there was evidence she required the use of a wheelchair. At deposition, the AME testified that the applicant was not amenable to vocational rehabilitation because of her pain medication and inability to get around. Her vocational expert reported that post-injury, the applicant had 6.9 percent access to the labor market, but he did not comment on her loss of future earning capacity.

The WCAB upheld the WCJ’s conclusion that the applicant did not provide substantial medical or vocational evidence to support an award of permanent total disability. It explained that a finding of PTD could be based on medical evidence, vocational evidence or both. It also said that a doctor was permitted to opine that an applicant was medically precluded from returning to work.

It found, however, that the AME in that case provided an opinion regarding the applicant’s ability to participate in rehabilitation, and it believed that the pronouncement was beyond his expertise. It found that the doctor did not preclude the applicant from returning to work on a medical basis, but opined only as to limited work restriction. It found that the applicant’s vocational expert did not believe that the AME’s restrictions precluded her from gainful employment. Accordingly, it concluded that there was no substantial medical or vocational evidence to support an award of permanent total disability, and awarded the applicant 87 percent permanent partial disability.

So, although an award of permanent total disability could be based on medical evidence, vocational evidence or both, the different experts have different roles. Doctors are limited to determining medical issues. They may opine that an employee is precluded from returning to work on a medical basis. The case even suggests that a doctor may report that an applicant is medically precluded from participating in vocational retraining. But doctors should not provide a vocational feasibility opinion — that is the role of a vocational expert. If a doctor steps into the role of a vocational expert, or vice versa, the WCAB could find their opinions to be insubstantial as beyond their expertise.

This case will not be the last word on when and how medical and vocational evidence can be used to support an award of permanent total disability. When medical and vocational experts agree that an employee is permanently totally disabled, the WCAB commonly will rely on their opinions to support an award. If, however, there’s disagreement among the experts, or if there’s an issue as to whether their opinions are substantial, practitioners must carefully review the reports to determine whether they can support an award.

For further discussion on this topic, see Sullivan on Comp Section 10.19 Rebutting Schedule Under Ogilvie.

Sure Log

Sure Log

Sure Log, of Counsel, Michael Sullivan & Associates, LLP,  is a specialist in workers’ compensation defense and related labor law issues. More about Mr. Log here.

DWC Announces Virtual Hearings Starting Jan. 12, 2022


Urgent Report

DWC Announces Virtual Hearings Starting Jan. 12, 2022

On Jan. 11, 2022, the Division of Workers’ Compensation (DWC) announced that all hearings would be conducted virtually as of Jan. 12, 2022. That means that all trials, lien trials, expedited hearings and Special Adjudication Unit (SAU) trials will be heard telephonically. Mandatory settlement conferences, priority conferences, status conferences, SAU conferences and lien conferences will continue to be held on the individually assigned judges’ conference lines.

The decision to pause in-person hearings was made because of the recent surge in COVID-19 cases. The pause will continue through the end of the month and is to be re-evaluated then. DWC hearing notices will not change, but parties are given notice that as of Jan. 12, 2022, if a trial, expedited hearing, lien trial or SAU trial is set at a district office, all parties should call the judges’ assigned conference line and not appear in person.

The conference lines are found on the DWC webpage. All division offices will remain open. If parties have questions on a specific case, they are instructed to contact the DWC call center at (909) 383-4522.

Effective Jan. 1, 2022, new regulations were adopted regarding electronic hearings, and, per CCR 10815, a party may object to an electronic hearing by filing a written objection showing good cause. During the prior period when in-person testimony was suspended, the WCAB issued a significant panel decision in Gao v. Chevron Corp. (2021) 86 CCC 44 stating that it would be “inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony,” but that “the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance.”

So, a party still may request that a trial be conducted in person but must present good cause for it –– a clear reason for an in-person hearing must be given. Even if good cause is established, however, it’s unlikely that the DWC will allow in-person testimony during the current pause of in-person hearings. Instead, it probably will continue the matter until it believes in-person hearings can be conducted safely.

For a detailed discussion of the impact of COVID-19 on appearances before the board, review the section on Court Appearances from our partners at Michael Sullivan & Associates’ Navigating COVID-19: A Legal Guide For California Employers.

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About IEA

IEA is the leading provider of professional training and education in workers’ compensation, disability management, risk management and human resources. To learn more about our programs and services, visit our website at www.ieatraining.org.

Absence Makes the Heart Grow Fonder? The Business of Absence & Disability Management


Absence Makes the Heart Grow Fonder? – The Business of Absence & Disability Management

January 3rd, 2022, by ShaunTeah L. Radcliffe, CPDM

Have you heard that old saying, “Absence makes the heart grow fonder”? It definitely makes my heart go pitter-patter. I absolutely love supporting leaders and solving the nuisances in the absence and disability management space.

Conversely, ask any people leader, and I’m sure that you will get a mixed bag of emotions because this is a challenging area to navigate. Unexpected disruptions to the daily operations, a misunderstanding that absence is solely related to medical issues, changing regulations, outdated strategies, policies, procedures, and systems all contribute to making this area a challenge to manage.

Some may think of this area as a pure compliance function, we have to do it, whether we like it or not. As a result, the function may sit in the organization’s Employee Relations or Compliance Areas.  Some may think that the function is closely tied to medical, short- and long-term disability and place the function within the Benefits area of the organization.

However, some organizations have no idea where the function should sit, and it may be dropped in an area with the most available bandwidth, such as HR Operations or maybe even Compensation or Learning and Development. That’s a head-scratcher, right?

One thing that makes me gasp every time is when the function is decentralized. I’m dramatically posing with a facepalm as it pains me even to type the word decentralized. I believe that this is the riskiest approach by far. The lack of consistency with a decentralized process is ripe for potential legal issues.

Whatever the case or wherever the function sits, regardless of whether you insource, outsource or co-source, it is essential to ensure that you have a strong team that can support the function and the synergies that exist with other areas of HR in your organization. This will ensure that the process is seamless for the manager and employee. I’ve listed a few items that I believe you should consider as you determine the reporting structure and develop the absence and disability function for your organization:

  • Are policies up to date? Is your policy well documented, easy to read, and readily available to all employees?
  • Manager and employee engagement? Operations should reflect organizational values and provide a clear roadmap of the process so that both managers and employees know what to expect.
  • Compliance? Are you having difficulty interpreting or remaining current on federal and state laws? Do you have sufficient resources to manage the function? Are you having difficulty determining what reasonable accommodations will allow employees to return to work and stay at work?
  • How will absences be tracked? What does your data say about the organization? It is vital to track and analyze data for future planning. High rates of absence may be an indicator of deeper organizational issues.
  • What is your level of acceptable risk? The level of acceptable risk that the organization is willing to take on will dictate how the function operates and where it ultimately fits in the HR structure. Additionally, it is imperative to have counsel available to navigate complex cases. Keep in mind that this is a critical area and that a misstep in the process may result in significant penalties.

Although there is no cookie-cutter approach to absence and disability management, numerous resources and software options are available to assist employers of all sizes in implementing or improving their absence and disability functions. Additionally, with the ever-changing landscape of this area and potential legal issues, employers can no longer view absence and disability management as an afterthought

ShaunTeah L. Radcliffe

Shaunteah L. Radcliffe

ShaunTeah L. Radcliffeis a subject matter expert in absence and disability management with more than 10 years of professional experience in managing and training professionals to ensure compliance and resolution of complex leave of absence and workplace accommodation requests. ShaunTeah is a contributor to the development of IEA’s newly revamped Certified Professional in Disability Management (CPDM) curriculum

About IEA
The Insurance Education (IEA) is the leading provider of professional development programs in Workers’ Compensation, Disability Management, Risk Management and Human Resources.