Although your humble author is an admitted cynic, as a compensable consequence of  California Workers’ Compensation Defense practice, he is always happy to report a victory for employers (read: California’s survival).

Assembly Bill 375, introduced by Assemblywoman Nancy Skinner (D – 14th District), was voted down in the senate last Friday (September 9, 2011).

AB 375 would have created yet another presumption, this time for hospital workers.  If enacted, infection of certain bloodborne diseases would have been presumed compensable, even if the injury arises 180 days after the last day of work.

Admittedly, this is a limited victory.  It lightens no load for employers while merely checking one of the many encroachments against the employer survival rate.  However, a victory is a victory and even a cynic can be happy about that.

Roberto Ceniceros, of Business Insurance has an interesting article on an issue that quickly became one of the more frustrating parts of California Workers’ Compensation practice.  The conflicts between employees and insurance companies, or the employee’s self-insured employers, can be heated and difficult, but that’s the nature of the game.  The frustration comes in when the parties have agreed and want to settle, but Medicare tells them they can’t.

This was the subject of an earlier post, but the efforts to change this system are the subject of Mr. Cenicero’s article.  H.R. 1063 sponsored by (former) Congressman Tim Murphy, the bill is now referred to the House Subcommittee on Health, and would limit the amount of time CMS could respond to a request for Medicare Set-Aside approval.

Presently CMS will not respond to a request for approval of a settlement amount $25,000 or less if the applicant is a current Medicare beneficiary or will enroll in Medicare within the next 30 months and the settlement amount is over $250,000.  The CMS explanation may be read here.

As the saying goes, if wishes were fishes, we’d all be full (except, of course, those of us who do not eat fish).  That being said, both sides of the ongoing struggle of California Workers’ Compensation can wish for H.R. 1063 to eventually see the President’s signature.  For those who need a brush-up on how this process works:

SB-899 and the reforms of 2004 were a triumph for the State of California.  By no means did these reforms fix all the problems in California Workers’ Compensation, but at least some efforts were made to make California semi-profitable (read: survivable) for employers.

One of the regular targets for the chipping-away efforts of applicants, their attorneys, and their treating physicians, is Labor Code § 4656.  § 4656 limits applicants to 104 weeks of temporary disability within a 5 year period.

Temporary disability is meant to provide some semblance of income, 2/3rd of the injured workers’ average yearly wages, while the worker is recovering – treatment, improvement, etc.

That means that someone is paying the employee 2/3rd of his or her income and receiving no labor or benefits in return.

Assembly Bill 947, being pushed by Assemblyman Jose Solorio, would increase the cap on temporary disability to 240 weeks.  You can read the amended text here.  That means the self-insured employer or insurance company would be paying the worker three years worth of salary over the course of five years without seeing any productive labor in return.

Today, the Senate Appropriations Committee will have a hearing on the bill.  Having already worked its way through the Assembly your humble author can only hope that this bills finds a sudden and tragic demise somewhere in the Senate.

Keith Goble of Land Line Mag has an interesting article today on the freezing of a new bill which would have effectively stopped the owner-operator business model of drayage trucking:  Assembly Bill 950.  AB 950 would “deem drayage truck operators as employees of those persons who arrange for or engage their services, with the exception of public agency employers.”

With employment, of course, come various forms of liability, including workers’ compensation liability under Labor Code § 3700.  No doubt this increased liability would translate to higher consumer prices and lower contract amounts for the individual drivers.

By falling under the category of independent contractors, drayage truck owner-operators escape the jurisdiction of the California workers’ compensation system.  The independent contractor exception is one of the last few safe harbors remaining for individuals to retain control over their small businesses.

Fortunately, this bill has been ordered to the “inactive” file.  Hopefully, it will be some time indeed before there is another encroachment from Sacramento onto the interactions between private citizens doing business.