Workers Comp Zone

THE TOP 10 DEVELOPMENTS IN CALIFORNIA WORKERS COMP 1ST HALF OF 2020

With 2020 half gone, its time for my annual mid-year look at the most significant events in California workers’ comp to date. In a year unlike any other because of changes wrought by the COVID-19 pandemic, many of the top developments must be seen through that lens. But there were others as well.

Here are my picks for the Top 10 Developments in California workers’ comp for the 1st half of 2020:

1. COVID changed operational models for almost all comp system stakeholders. In response to the pandemic, WCAB district offices began holding conferences and hearings by phone. Most medical treatment services were switched to telehealth, as video and phone visits became the norm. Defense attorneys and applicant attorneys agreed to handle most depositions on the Zoom platform. Many QME evals were canceled or rescheduled, though later on some began to happen via video. In most instances claims offices, judges, attorneys and their staff worked remotely.

2. There was an ongoing issue of how the comp system would handle claims that a diagnosis of COVID arose out of and in the course of employment. A raft of bills were introduced in the California legislature to create a presumption of industrially related COVID. But Governor Newsom was not to be left out of the conversation, and on May 6, 2020, Newsom issued Executive Order N-62-20 which declared a presumption of compensability for COVID for workers who contracted a verified COVID diagnosis while working outside the home during the shelter-in-place order. My post on Newsom’s order can be found here:

     http://www.workerscompzone.com/2020/05/06/newsom-orders-rebuttable-covid-presumption/

By mid year, several bills that would create a conclusive presumption of compensabiity , AB 196 (Gonzalez) and AB 664 (Cooper), had not yet advanced. However, SB 1159 (Hill), a bill to create a rebuttable presumption of COVID compensability, did receive a favorable California Senate vote on June 26 and proceeds to the California Assembly.

3. As telecommuting became more prevalent, the WCIRB moved to adapt by proposing an update to its classification codes.

4. AB5 remained a hot political issue. In early 2020, a number of bills were introduced in the legislature to exempt various occupations from AB5. Other bills were introduced to repeal or eliminate the reach of AB5, which enshrined the “ABC test” of employment (used in the 2018 California Supreme Court Dynamex case) into California law. But legislative AB5 repeal is not happening and the fate of some of the exemption bills is not clear. By mid-year it appeared unlikely that there would be any grand compromise between the gig-platform companies and labor and their allies. This sets up a major political battle between gig-economy companies and labor, likely to be one of the most expensive ballot campaigns California has ever seen. The November election will include the “Protect App-Based Drivers and Services Act”, sponsored by Uber. Lyft, Door Dash and others, which would essentially nullify AB5.

Meanwhile, a decision by the California PUC and a lawsuit by California AG Becerra were factors in the AB5 saga. My post on that can be found here:

     http://www.workerscompzone.com/2020/06/12/bark-or-bite/

5. On the regulatory front, the DWC acted to create emergency regulations. Emergency QME regs setting forth rules re telehealth evaluations went into effect May 14, 2020. Those regs can be found here:

     https://www.dir.ca.gov/dwc/DWCPropRegs/2020/QME-Regulations/QME_Regs.htm

And updates to the WCAB Rules of Practice and Procedure went into effect as of January 1, 2020:

     https://www.dir.ca.gov/wcab/WCABProposedRegulations/Rulemaking-August-2019/Rulemaking-August-2019.htm

6. A revision of the QME fee schedule remained a thorny issue, but may be headed to a resolution that will not please some QMEs. QME fee schedule revision has been a contentious issue for the DWC for several years. Forums and stakeholder meetings on the issue were held during 2018 and 2019 and a  2019 report from the California State Auditor was critical of DWC administration of the QME system. In early January a Joint Legislative Audit Committee conducted an oversight hearing on the 2019 findings of the State Auditor. And in January 2020 the DWC convened two additional stakeholder meetings to discuss possible formulas for a revised QME fee schedule. But a bill designed to address the issue, AB 1832, did not progress past January.

However, on June 25, 2020 the DWC  announced draft regulations and set up a forum for comment on them. In the announcement the DWC stated the following:

“The draft regulations include:

  • A 25% increase in the multiplier for setting fees for evaluations.
  • Standardization of the fee that can be charged for a missed appointment.
  • Flat fees for comprehensive, follow-up, and supplemental medical-legal evaluations.
  • Rates for review of medical records based upon the amount of pages reviewed.
  • Elimination of complexity factors from the Medical-Legal Fee Schedule.
  • An increase in the hourly fee for medical-legal testimony.

The implementation of a predominantly fixed fee for all procedure billing codes is anticipated to reduce frictional costs. Moving to a flat-fee-based schedule and removing complexity factors is contemplated to reduce the incidence of disputes over billing.”

By the end of June 2020 there were 82 pages of forum comments, many critical of the proposal.

7. The effect of COVID on workers’ comp costs and rates remained uncertain at mid year

8. Aside from bills pertaining to COVID presumptions and proposed tweaks to AB5, 2020 shaped up as a modest legislative year. Bills to expand presumptions for PTSD and skin cancer for certain law enforcement personnel had failed to advance by mid-year. SB 893, a bill to grant certain industrial presumptions to hospital employees who provide direct patient care,  failed a key legislative committee vote. CAAA’s vision of  bills “to reduce delays in care ” and “eliminate bias in apportionment” did not  materialize.

9. While 2020 has not shaped up to be a gangbuster year for workers comp in the courts, there were some decisions that should be noted:

Dennis v. State of California Department of Corrections (WCAB en banc) (invalidating AD Rule  10133.54 and finding that the WCAB, rather than the DIR Administrative Director, has jurisdiction over SJDB voucher disputes);

Brome v. California Highway Patrol (a filed workers’ comp psyche claim tolled the one year statute of limitations under FEHA, Government Code 12940);

•County of Santa Clara v. WCAB (Barbara Justice) (Hikida case doctrine did not apply on facts of the case and apportionment not prohibited where evidenced established underlying degenerative condition was partial cause of the disability). My past on the case, “Limiting Hikida”, can be found here:

     http://www.workerscompzone.com/2020/06/25/limiting-hikida/

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

 

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