Transcript Workers’ Compensation Update

Workers’ Compensation Update
Susan England, Esq.
Cathy Aguilar, WCCP
January 24,2008
New Laws for 2008
 Assembly Bill 338
 Amends Labor Code Section 4656
 Extends temporary disability payment cap to
104 weeks within five years of date of
injury.
 For injuries on or after 1/1/2008
 Start counting from first date of TTD-even in
retroactive cases.
 Anticipated impact on cost, still not clear. Note:
two year rule will still apply and may cause the
amount of TD to raise during the extended
period of TD.
Assembly Bill 1073
 Amends Labor Code Section 4604.5
to exempt post-surgical patients from
24 visit cap on PT, and Chiropractic
treatments if the physical medicine
and rehabilitation services comply
with post-surgical treatment
guidelines established by the AD (yet
to be adopted)
Assembly Bill 812
 Allows workers’ compensation
insurers to charge up to three times
the most recent estimated annual
premium if a policyholder fails to
provide reasonable access to their
payroll records and the records of any
uninsured contractors and their
employees for the purposes of
calculating premiums.
Assembly Bill 1269
 Amends Labor Code Section 5307.1 to
authorize the DWC administrative director
(AD) to adopt and revise at least every two
years a fee schedule for inpatient burn
cases.
 AD may adopt the Medicare schedule or
other methodologies that allow fees to
exceed Medicare by 120% up to a
maximum of 180%. No new schedule has
been purposed- bill sunsets 1-1-2011.
Assembly Bill 1302
 Extends the expiration date for
California Health Insurance Portability
& Accountability Act (HIPPA) from 11-2008 to 7-1-2010.
Assembly Bill 1401
 Increases the annual assessment that
insurers pay to support the Insurance
Department’s Fraud division. It’s
expected to bring in an additional
$4.9 million.
 Requires Insurance Department to
report specified fraud information
annually on its website.
Senate Bill 316
 Repeals the mandatory workers’
compensation reserve levels and mandates
that the Commission on Health, Safety &
Workers’ Compensation issue a report by
July 1, 2009, on the causes of workers’
compensation insurer insolvencies over the
past decade.
 This bill, along with AB 812 and AB 1073
(previously noted) received the support of
the Association of California Insurance
Companies.
Senate Bill 869
 Requires the Labor Commissioner’s
program for identifying unlawfully
uninsured employers systematically to
identify such employers and prioritize
targets.
 Also requires EDD to give the commissioner
a list of employers reporting payroll and
amends the Unemployment Insurance Code
to allow release of data to the
commissioner.
 Annual report to be posted on the Dept. of
Labor website.
Additional Information
 The final versions of these bills in
their entirety can be viewed by
searching by bill number on the
website:
 www.leginfo.ca.gov
 Source for this information was CWCI
and Work Comp Central.
Utilization Review
 Attempt to authorize treatment at lowest
level possible (the examiner). Do not send
everything to UR.
 Ensure your Insurance Company, TPA
and/or UR Company are providing decisions
timely regarding treatment request.
 New Rules & Regs
 Maintain log of request and decisions
 Audits
Medical Treatment
 Where we have been
 Where we are now
 Where we are going
Return to Work Issues
 Injured workers’ earnings capacity
 Overlapping laws-ADA, FEHA, etc.
 Need law changed to use MMI date,
not RTW date regarding assessing
possible accommodations timely.
Case Law Update
 The following cases can be accessed in
full text by going to www:dir.ca.gov
and clicking on Workers’ Compensation
Appeals Board and then WCAB
decisions:
 Paul Cruz v. Mercedes Benz of San
Francisco – SDO 501425 (Issue: what
constitutes an amputation such that the
104 week cap on td does not apply)
Case Law Update
 Nelly Romero v. Costco Wholesale,
OAK 328271. (Issue where the
injured worker has already been
supplied one QME panel, has made
but not kept an appointment with a
doctor on that panel, then obtained
an attorney, can the attorney get a
second panel?)
Case Law Update
 Valeri Hawkins v. Amberwood Products,
SCIF, SAL 107814. (Issue: Under
Labor Code 4656 (c) (1), when does the
two year period limiting TD to 104
weeks commence?)
 Bruce Knight v. UPS, Liberty Mutual Ins.
Co., AHM 127807, 129147. (Issue:
Where the injured worker is not
provided with MPN information can he
treat outside the network?)
Case Law Update
 Joey M. Costa v. Hardy Diagnostic,
SCIF, GRO 31810. (Issue: Is the
presumption that the AMA rating is
correct rebuttable and if so what
evidence can be used to rebut it and
are costs reimbursable to the
applicant?)
Case Law Update
 The following case is a noteworthy
panel case:
 Fred Norwood v. City of Los Angeles,
ANA 394295, 394296, AHM 70183,
23582, 70336. (Issue: Does the
payment of IOD benefits count
against the 104 week limitation on
TTD?) Note: A similar case is now
pending review at the appellate level.
Case Law Update
 The following cases are appellate
court decisions:
 Andersen v. WCAB, City of Santa
Barbara, 149 Cal.App.4th 1369.
(Issue: Did the City violate Labor
Code Section 132a where it required
an industrially injured worker to use
vacation time rather than sick leave
for medical appointments?)
Case Law Update
 County of San Joaquin v. WCAB
(Davis), 147 Cal.App.4th 1459.
(Issue: Is a person injured while
performing jury duty entitled to
indemnity benefits based on the
county’s jury compensation rate or
his regular earnings?)
Case Law Update
 Six Flags, Inc., v. WCAB (Mac
Bunyanuda et al.) 145 Cal.App.4th 91.
(Issue: The constitutionality of Labor
Code Section 4702 that allows death
benefits to be paid into the estate of
a deceased industrially injured worker
with no dependants.)
Case Law Update
 The following case is pending before the
Supreme Court of the State of California:
 SCIF v. WCAB (Sandhagen), Supreme Court
Case No. S149257. (Issue: May an employer
who has not acted timely on an injured
worker’s request for treatment under the UR
process, nevertheless obtain a medical-legal
opinion under Labor Code Section 4062?)