Author: WorkCompAcademy

Governor Brown signed SB 623, a new workers’ compensation law that will become effective this January.

According to the author, existing regulations were adopted upon the enactment by the voters of Proposition 187 in 1994, and initiative that restricted the rights of undocumented immigrants in a number of ways. Despite the courts’ subsequent invalidation of that initiative, the regulations at issue in the bill have remained on the books. California regulations still prohibit an undocumented worker from receiving benefits from both the UEBTF and the SIBTF, as the regulations have not been updated since 1998. As such, these regulations have been out of compliance with state law since 2003. It is unknown, however, if this has resulted in the loss of any benefits for undocumented injured workers.This bill was intended to expressly overrule those regulations.

The California Applicants’ Attorneys Association (CAAA) and the California Chamber of Commerce strongly supported SB 623, arguing that SB 623 would clarify current law so that no injured worker is refused benefits from the Uninsured Employers Benefit Trust Fund (UEBTF) and the Subsequent Injuries Benefit Trust Fund (SIBTF) based on their immigration status. CAAA argues that it is time for the out-of-date Division of Workers’ Compensation regulations which allowed undocumented workers from being excluded from these benefits. There was no opposition to this bill shown in the legislative record.

The practical effect of this bill is to state unequivocally that the plain reading of the regulations is not the law. This bill declares the intent of the Legislature to override regulations which prevent undocumented workers from accessing benefits from the UEBTF and the SIBTF Thus the bill adds section 3733 to the Labor Code.

Existing federal law provides that a State may provide that an individual who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible through the enactment of a State law which affirmatively provides for such eligibility. (8 U.S. Code § 1621(d))

The Centers for Medicare and Medicaid Services’ and the California DWC scheduled switch next month to a larger set of medical billing codes could ease Medicare secondary payer compliance for workers compensation claims, according to an article in Business Insurance. Starting Oct. 1, medical providers will switch from ICD-9, which includes about 17,000 diagnosis and procedure codes, to ICD-10, which includes more than 155,000 diagnosis and procedure codes. Many ICD-10 codes also specify the types, locations and severity of conditions and injuries.

Experts say the new codes will have the largest impact on workers comp payers who deal with Medicare secondary payer compliance. “The amount of detail it will provide the workers comp community will be amazing compared to what we’ve been using before,” said Rafael Gonzalez, Tampa, Florida-based vice president of strategic solutions at Helios Settlement Solutions, a unit of pharmacy benefit manager Helios.

The Medicare Secondary Payer Act requires insurers and self-insured employers to notify CMS of any workers comp or liability claim settlement involving a Medicare-eligible individual. CMS can issue liens requiring that settlements be used to reimburse the agency for medical care it paid on a claimant’s behalf, or that payers set aside money to pay for future medical care related to a compensable injury.

Medicare secondary payer experts say workers comp insurers and self-insured employers often are asked to reimburse Medicare for injuries or illnesses unrelated to a workers comp claim because those conditions are lumped in with the claimant’s occupational injury in medical records.

Rita Wilson, CEO of Delray Beach, Fla.-based Medicare secondary payer compliance firm Tower MSA Partners L.L.C., said ICD-10 will be particularly helpful in allowing workers comp insurers and self-insured employers to specify for which injuries they accept responsibility and those that should be paid by Medicare.

“Better accuracy and greater granularity and detail in determining and describing the injury are going to be advantageous for us, the provider community and for the payers,” Ms. Wilson said.

The California Senate voted 24-15 to approve a bill (AB 305) that would prohibit medical problems primarily affecting women from being considered pre-existing conditions when calculating workers’ compensation benefits. The bill now returns to the Assembly for a final vote.

This bill prohibits apportionment if pregnancy or menopause is contemporaneous with the injured worker’s claimed injury. This bill also requires that breast cancer not be less than the comparable impairment rating for prostate cancer. It also prohibits apportionment in cases of psychiatric injury caused by sexual harassment or any of the conditions listed above if the conditions are contemporaneous with the psychiatric injury.

Senate Floor Amendments of 9/3/15 remove “osteoporosis casually related to menopause” from the list of conditions where apportionment is prohibited.

According to state Sen. Marty Block (D-San Diego), the bill is part of an effort to end gender bias in the workplace. Some proponents of the bill have argued that the AMA Guides are not objective, specifically in the area of gender-specific injuries. Specifically, proponents point to the fact that the AMA Guides rate the removal of female breasts at a WPI of 0%, while the removal of a prostate would rate a 16%-20% WPI, arguing that such a rating shows bias against women.

Opponents argue that AB 305 is an attempt to undermine an employer’s use of apportionment when determining liability for permanent disability awards. Specifically, opponents note that apportionment is more than a decade old and ensures that employers do not need to pay for non-industrial injuries. Further, opponents point to case law and statute which protects injured workers from abusive apportionment, including apportionment on the basis of gender. Opponents further argue that AB 305 will increase litigation, raise indemnity costs on employers, and increase systemic instability and subjectivity.

Norman McAtee sustained industrial injury to his neck, back, psyche and other body parts while working for Briggs and Pearson Construction as a carpenter. On March 30, 2011 he received a stipulated award of I 00% disability and future medical treatment.

McAtee had unsuccessful back surgery, and he has chronic pain. A nerve stimulator was not effective. Thus he has used narcotic analgesics for several years and has tried various formulations, including Duragesic patches which are helpful and improve his functioning.

McAtee appealed a December 2, 2014 IMR determination that modified PTP requests for additional Duragesic. The IMR rationale states that “Guidelines go on to recommend discontinuing opioids if there is no documentation of improved function and pain.” The rationale further states, “within the documentation available for review, there is no indication that the medication is improving the patient’s function or pain (in terms of specific examples of functional improvement and percent reduction in pain or reduce NRS), no documentation regarding side effects, and no discussion regarding aberrant use.” The WCJ denied the appeal, but a WCAB panel reversed in the case of McAtee v Briggs and Pearson Construction.

On appeal, McAtee argued it was shown at trial that the December 2, 2014 IMR determination resulted from plainly erroneous or implied findings of fact as described in Labor Code section 4610.6(h)(5). The WCAB agreed. The !MR findings are mistakes of fact as a matter of ordinary knowledge and not a matter that is subject to expert opinion. The PTP “specifically documents applicant’s improved function and reduced pain with his use of the Duragesic patches.” These indications of improved function,reduced pain with use of the medication, along with documentation concerning potential side effects and aberrant use, show that the contrary !MR findings were mistakes of fact as a matter of ordinary knowledge.

Reconsideration was granted, the decision was reversed, and hereby remanded to the Administrative Director pursuant to Labor Code section 4610.6(i) for Independent Medical Review by a different reviewer.

Ride-sharing service Uber has agreed to pay a $77,925 fine to the state of Alaska over unpaid workers’ compensation insurance for its drivers. Uber operated in Anchorage for about six months before pulling out of Alaska. In the Aug. 25 settlement, Uber admitted no wrongdoing. The company agreed not to return to Alaska until it is in compliance with state workers’ compensation laws.

The state Department of Labor and Workforce Development said it began an investigation into Uber’s business practices when the company began offering rides in Anchorage in October 2014. But the investigation never made it to a hearing because Uber pulled out of Alaska in March 2015, facing a judge’s order that it operate for free and failed negotiations with the city of Anchorage.

Rhonda Gerharz, the chief investigator for the special investigations unit of the Department of Labor and Workforce Development, said that when Uber was offering rides in Anchorage, the company was operating under the assumption that its drivers were contractors and not employees. The Department of Labor disagreed, but Uber wasn’t charged with violating state laws because the company stopped operating in Alaska while the investigation was ongoing — the matter never got to a formal hearing. “It’s just an allegation,” Gerharz said. “It’s a settlement agreement because Uber left the state.”

Other states, including California, have also ruled that Uber drivers are employees of the company and not contractors.

The workers’ compensation insurance issue was just one of many roadblocks the company faced when it tried to start its service in Anchorage. The city went to court to stop Uber from operating because it didn’t comply with the city’s taxi ordinances — rules requiring drivers to get city-sanctioned background checks, have video cameras in their cars and have a certain amount of collision and liability insurance.

In October 2014, an Anchorage Superior Court judge ruled Uber could only operate in Anchorage if it continued its initial free ride program. The judge prohibited Uber from charging for rides until it could come to an agreement with the city over the details of its operations. Uber paid its drivers but did not charge its customers in Anchorage for about six months before pulling out of Alaska entirely.