WCDefenseCA

Happy Wednesday, dear readers!

Your humble blogger has some rather unfortunate news for you.  On September 29, 2022, Governor Newsom signed SB-1127 into law.  As my readers may recall, this most humble of blogs touched on earlier versions of the bill, but the one signed into law isn’t much better.

As enacted, SB 1127 reduced the normal investigation period of 90 days to 75 and imposes up to $50,000 in penalties for “unreasonably denied benefits” as part of a denial in certain presumption cases (generally firefighters and law enforcement and the such).  It also increases TD from 104 weeks to 240 weeks for firefighter and law enforcement presumption cases as found in Labor Code section 3212.1.

Defendants affected by the presumption cases will be put in the untenable position of having to investigate the causation of a claim within 75 days or face up to $50,000 in penalties for not accepting the claim.  We can all do the math – if a particularly responsive adjuster manages to get a delay letter out on the same day as receiving the claim form, that’s at least 15 days before a panel can be requested.  In pro per cases, that has to be done by mail, but let’s assume this is an issue in a represented case and a panel can be obtained immediately. 

Well, there’s another 15 days for the strike process, which makes 30.  Now the employer has 45 days left to get a report upon which to issue a denial.  The regulations allow for up to 90 days for an appointment and another 30 days for a report after that. 

How is the employer supposed to get a QME report upon which to contest causation before it’s forced to deny the claim pending the investigation?  Well, it’s not.  The purpose of SB 1127 is to turn joint powers groups, local municipalities, cities, counties, fire districts etc., into piggy banks for the presumption class of employees.

Now, dear readers, if you’re thinking excitedly “that’ what you get!” after you got a parking ticket and were forced to pay it, don’t get too excited.  As is often the case with Sacramento, this is a test – the face-value beneficiaries of this legislation are sympathetic (police and firefighters, mostly) and have a robust and strong union.  But rest assured, this is a test of how the system will work.

Once this is firmly in place and part of the routine for the public sector, such legislation will surely follow to further plunder the private sector.   Sacramento will of course consider pushing the investigation period down to 75 days for all employers and impose similar penalties for failing to accept a case.

So, how should we change claims handling in light of SB 1127?  Well, for starters, we should be reserving more for potential TD exposure.  Additionally, the employers and supervisors should be updated on claims handling procedures and reminded of how important it is to report the receipt of a claim form/notice of injury IMMEDIATELY.  Claims handling should continue to thoroughly document the files and be prepared to challenge claims of “unreasonable” rejection of liability with asserting a record of diligent investigation – prompt requests for panel and writing to the QME, possibly even deposing treating physicians if necessary. 

Buckle in, dear readers, this is going to be a bump ride!

On a side note, to my beloved readers observing Yom Kippur today, your humble blogger wishes you an easy fast – G’mar chatimah tovah!

Happy Monday, dear readers!

Your humble blogger hopes you are having a great time as we approach the start of May.  The year is zipping right by us as we cruise into the future.  Speaking of, it’s no secret that your humble blogger is a big fan of gadgets and technology.  When that interest intersects with the self-destructive obsession with workers compensation, his beloved readers are typically burdened with a blog post… so here we go!

In September of 2020, Governor Newsome signed into law SB 1159 which created various presumptions for COVID exposures.  Some are for the initial outbreak, and some are for certain professions such as law enforcement and healthcare workers among others.  But there’s another section having to do with outbreaks, defined as at least 4 employees (or 4% of the employees at a specific workplace, whichever is greater) testing positive within a 14 day period.

How is the employer supposed to rebut the presumption of industrial exposure in an outbreak case?  Well, we have the tools at our disposal that existed before the outbreak: discovery such as depositions, social media investigation, and investigator interviews.  But, despite the best efforts of Sacramento, the market tends to respond when there is a need.

A company called Estimote has possibly built a better mousetrap by creating collar tags that are worn by employees in the workplace.  The collar tags are supposed to vibrate when two tags are within 6 feet of each other, and also provide contact tracing.  So, if Jill at the office reports a positive Covid test, Jack at HR can check her history for the last 14 days and show which other devices have been within 6 feet of Jill.

Is this a certainty?  Of course not.  Employees can still be exposed to Covid by customers or visiting vendors who probably won’t be wearing these devices.  But the presumption is rebuttable and perhaps this evidence will provide some basis to offer a denial.

While it’s possible that an employee is infected because of contact at work, neither the workers’ compensation system nor life in general operates on possibility – the standard is always probability.   If an employer can effectively demonstrate that an applicant did not have contact within 6 feet of any other Covid positive employees in the past 14 weeks, doesn’t that drastically reduce the likelihood that the exposure occurred at work?

Ultimately, employers will have to weigh the cost of obtaining, setting up, monitoring, and, most importantly, enforcing, such a system against the likelihood of reduced workers’ compensation costs. 

Straight on to Wednesday, dear readers!

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!