WCDefenseCA

Happy Monday dear readers!

Here we are, at the very end of February, ready to delve into March (keep an eye on those ides, no?)  So what better way to finish off this month than with a blog post about another horrific piece of legislation brewing in Sacramento.

Aside from the various COVID-19 related presumption laws, shortening investigation periods from the 90 days afforded under Labor Code section 5402 to 30 or 45 days (depending on the applicable section), defendants are already hard-pressed to properly investigate a claim within the time allotted.

Let’s say an employee makes a claim for Monday-morning back injury, and the supervisor was aware that the employee was helping a family member move that weekend.  Cause for suspicion, no?  Well a proper investigation would include but medical and factual inquiries.

If the parties want to go to a QME on the issue, there’s 15 days from the delay notice, another 30-60 days to get an appointment on the books, and then another 30 days or so at least for the report.  Best-case scenario, if a delay notice goes out on the same day the claim form comes in, we’re looking at 75 days for a report.  Realistically, though, the parties will not even have a QME evaluation set for within the 90-day period most of the time.

Aside from this, there is the matter of the factual investigation – a deposition, obtaining records, tracking down witnesses.  To complete a full investigation within 90 days is a challenge on its own.

So now let’s take a look at SB1127, which sounds a lot like SB335, originally discussed in your humble blogger’s earlier blog post.  SB1127, introduced earlier this month, would wreak havoc in a lot of ways:

• It would increase the maximum weeks of temporary disability from 104 to 240 for post 1/1/23 injuries as found in Labor Code section 3212.1 (cancer and leukemia);
• It would reduce the investigation period of Labor Code section 5402 from 90 days to 60 days; and
• It creates Labor Code section 5414.3, which imposes penalties of 5 times the amount of benefits “unreasonably denied” for injuries under Labor Code section 3212 and 3213.2 (firefighters, law enforcement, etc.), up to a maximum of $100,000.  Most importantly, this would apply to all injuries, regardless of the date of the injury or the so-called “unreasonable” denial.

So let’s ask a basis question – if the employer has only 60 days to deny the claim, and cannot conduct a full investigation within those 60 days, is a denial on day 59 on the basis that “we have not completed our investigation and are awaiting additional records, reports, etc.” be “unreasonable?”

Your humble blogger imagines that, if SB1127 becomes law, we will see a lot more denials, but also a lot more depositions of claims examiners to build up these penalty claims.

As always, your humble blogger hopes that sense will prevail, and rather than squeeze every last drop out of California’s employers Sacramento will instead focus its efforts on creating a climate in California that allows businesses to thrive. As the saying goes, Hollywood makes entertainment, Silicon Valley makes technology, most of California makes food, and Sacramento makes it difficult.

Happy Friday, dear readers!  Looks like we made it another week, although I’m sure many of us are already checked out, mentally and/or physically, for the 3-day weekend!

So, for those still with us, let’s do a quick pop quiz to get our minds working.  What weighs more, a pound of gold or a pound of feathers?  Now, you might instinctively say that they are equal in weight, but I assure you that a pound of feathers weighs much more.  You see, a pound of gold is just a pound of gold, but carrying around a pound of feathers also means carrying around the guilt of what you did to those poor birds…

Well, for those of you who are still with me and haven’t decided to banish me from your life forever, may I respectfully direct your attention to the latest poison slowly emanating from Sacramento?  To wit, Senate Bill – 213. 

SB213, the latest in Sacramento’s bizarre crusade to make access to a solvent hospital in California a thing of the past, would define “injury” to include infectious disease, and such an injury would be granted a rebuttable presumption of industrial causation for any “hospital employee who provides direct patient care in an acute hospital.”  Among the conditions that would be so presumed includes methicillin resistant staphylococcus aureus skin infections, bloodborne infectious diseases, tuberculosis, meningitis, and COVID19.

The proposed legislation would also create a presumption for a variety of types of cancer, musculoskeletal injuries, PTSD, and respiratory disease.

In other words, if SB213 becomes law, hospital employees’ skin and contents will be presumed to be injured on an industrial basis, shifting the burden on the defendant to prove that the injury is not industrial. 

Hopefully, SB213 wakes up to find itself on “bad-ideas-that-will-never-become-law Island,” and it will certainly not want for friends.  At some point, the legislature needs to stop thinking of employers as some endless piggy-bank to be looted.

Many of California’s employers might look at SB213 and think that hospitals are a special case and that such an attitude of turning employers into involuntary general health insurers will not affect them, but this is not true.  California already has various presumptions for law enforcement, firefighters, and corrections officers.  We saw a widespread COVID19 presumption apply to all employers in the case of outbreaks, with efforts already growing to delay the sunset of that law. 

Unless Sacramento’s behavior is put in check, the scope and breadth of presumptions will continue to grow, or, at least, your humble blogger, occasionally called the WC Oracle by the handsome man in the mirror, thinks so.

Have a good weekend!

Happy Monday, dear readers! Here we are starting yet another week on a beautiful Monday in our beloved swamp of workers’ compensation. 

So, if you’re following the COVID news beyond the borders of California, you’re likely seeing a long list of countries (and states) that seem to be rolling back restrictions on COVID19.  England has already dropped almost all of its COVID19 restrictions, as has Ireland, as has Denmark, as have many states and counties. 

If that’s the global trend, why do we need to extend the sunset period for SB1159 and the presumption laws?  Why do we need to continue to burden employers with tallying total employees and for periods related to every covid exposure?  Why do we continue to make employers such as fire departments, police departments, and hospitals, general insurers against something to which we are all exposed?

That is the effect of proposed AB 1751, introduced by Assemblyman Tom Daly, which would extend SB1159 from sunsetting on January 1, 2023 to January 1, 2025.   California’s employers’ have been through the wringer already.  The golden state already makes it hard enough to keep the lights on, and COVID19 and the related lockdowns were brutal, keeping customers and clients away. 

With SB1159, California burdened employers further with a tremendous administrative undertaking in keeping track of numbers for outbreak purposes, reducing investigation periods from 90 days to 30 or 45 depending on the circumstances, and, in light of the See’s Candy case, likely setting employers up for liability in the torts arena as well.

Sacramento seems intent to look out at a flock of geese laying golden eggs and get excited for the prospect to cook them.  After the tremendous toll California’s employers have borne for the last two years, shouldn’t Sacramento be focused on helping California’s employers recover from COVID19? 

In any case, dear readers, your humble blogger wishes AB 1751 a swift demise and you, his beloved readers, a good week!

Happy Monday, dear readers!

Your humble blogger is happy to greet you back from yet another weekend, and boy do businesses have something to look forward to in their Herculean efforts to keep the lights on!

As everyone knows, your garden variety employee can work up to 40 hours per week at a regular rate, and then gets paid overtime (1.5 the base hourly rate) for hours worked in excess of 40 per week.  However, that’s not good enough for some folks in Washington, D.C., so we have a bill introduced in Congress  which should be titled “The Trigger Mass Business Closures and Layoffs Bill” but instead is called the “32-Hour Workweek Act.”

Congressman Takano (California’s 41^st District) introduced H.R.4728 back in July of 2021 but has made the news recently drawing attention to the proposal.  So, let’s talk about the effects!

Well, for one thing, this is a significant increase in the cost of productivity.  The production captured in a 40-hour work week would go up in cost by 12.5%.  If you’re a California business already struggling to keep the lights on, how will the 12.5% increase in labor cost impact you?

Looking at it from the employee side, of course, we can anticipate many full-time employees being reduced in their work schedules to 32 hours to avoid the imposition of mandatory overtime for a 40 hour week.  So, if there were previously 4 employees working 40 hours per week, the business must now hire a 5th employee to have 5 people working 32 hours instead of 4 people working 40 hours.  Unless of course, the business has the misfortune of being in a place that has an ordinance similar to San Jose’s Section 4.101.040 which forces employers to prioritize making part-time employees into full-time employees before hiring more part-time employees.

And what effect would such a law have on the workers’ compensation world?  Besides the anticipated layoffs and business closures that would certainly follow the passage of such a law, any applicant who worked more than 32 hours per week prior to going out on TD, would likely claim that the law constitutes a wage increase and demand an appropriate increase in the TD rate.

And, of course, lay-offs and economic downturns always trigger massive claims for injury, whether post-term CTs or pre-term back strains. 

Hopefully, after the fanfare and attention that the internet gives such things now and then, H.R.4728 will die in committee and we will never hear of it again.  As for all the employers and employees who think a 32-hour work-week is a great idea, your humble blogger has a simple solution.  Negotiate with your employer and only work 32 hours per week.  One needs neither divine intervention nor an act of congress to negotiate a mutually agreeable arrangement.

And now, for no reason whatsoever, I offer the following meme…

See you on Wednesday, dear readers!

Happy Monday, dear readers!  We are just powering through 2021, aren’t we?

So, pop quiz for you, dear readers.  How many days does an employer have from receipt of the DWC-1 claim form to deny a claim?  Well, if you were to look at Labor Code 5402, you’d see that an employer has 90 days to issue a denial.  But if you were to look into the future, the answer might be different… very different.

Senate Bill 335 would amend Labor Code section 5402 to reduce the 90-day investigation period to 45 days.  The bill would also reduce COVID related investigation periods to 30 days (down from 45 for some cases).  Finally, employers would be liable for the first $17,000 (up from $10,000) in medical treatment prior to the denial of the claim.

Let’s just do some basic arithmetic (come on, dear readers, it will be fun!) 

An employee who has a history of back problems that pre-date the start of employment files a workers’ compensation claim for an injury to the back.  The employer is skeptical as to causation and plans to request a panel.  A delay notice issues about 10 days after receipt of the claim form, and the pro per employee requests a panel by mail.  About 20 days later, the panel arrives and the first available appointment is in 45 days.  The report will not issue for another 30 days after that. 

In order to get a QME opinion about causation, the likely wait is going to be 105 days from when the claim form is provided to the employer.  Mind you, dear readers, this is all very optimistic about the timeline.  The typical time from claim form to QME opinion is a lot longer, often requiring replacement panels because the available QMEs cannot set timely.

It is tough enough to do a thorough investigation with 90 days, what is the employer supposed to investigate in 45 days?  Most of the time, even a deposition is not available within 45 days, which means that more and more employers will have to issue a denial because an investigation cannot be completed in time.

Hopefully, SB335 goes the way all the other bad legislative ideas and becomes a footnote rather than law.  But this is another example of the worrying trend coming from Sacramento which seems determined to make workers’ compensation an unbearable burden on California’s remaining employers.  Certainly as other states court California businesses by offering lower taxes and less regulation, the cost of workers’ compensation insurance per $100 of payroll will be an added incentive to move out.

Happy Monday, dear readers!

Your humble blogger loves nothing more than sharing virtual real estate in this beloved swamp of ours, called Workers’ Compensation.  But, if I might invite you to join me for a stroll through “delusions of grandeur forest” I will arrogantly take sole credit for the recent change in the goal and purpose of AB1465.

My beloved readers will recall my rather scathing blog post in the proposed legislation which would have rendered Medical Provider Networks toothless and moot by creating a so-called “California MPN” to which injured workers could flock when an MPN doctor declined to prescribe an all-expense paid vacation to Hawaii… you know… to cure the symptoms and all that.

Anywho, after taking my share of harsh words from some of the applicant attorneys and lien claimants (and their respective writings), it appears that AB1465 has changed significantly from all but eliminating MPNs to merely requiring “the Commission on Health and Safety and Workers’ Compensation, on or before January 1, 2023, to submit a study … on delays and access to care issues in medical provider networks.”

To demonstrate the boundless generosity of your humble blogger, I will save Californians countless tax dollars by providing a link to the CWCI study issued just last month, showing that, based on just over 181k claims with dates of injury between January 2019 and June 2019, there was practically no difference in days to first treatment as between MPN and non-MPN cases.  The average difference was 5.9 days for MPN cases and 5.6 days for non-MPN cases.  For the folks keeping score at home, that’s a difference of 7.2 hours. 

Your humble blogger is pleased that this further blow to employers and insurers was avoided, if only temporarily, and (all delusions regarding my own influence and reach aside) is grateful that reason prevailed.

Now, your humble blogger must turn his attention to the torches-bearing physician’s aides and pitchfork swinging applicant attorneys assembling at his front door, so, dear readers, till Wednesday!