Author: WorkCompAcademy

The Department of Industrial Relations released its 2014 Legislative Digest, which provides an overview of new laws and vetoed bills related to the work of DIR and its divisions, which include the Labor Commissioner’s Office, Cal/OSHA, the Division of Workers’ Compensation and the Division of Apprenticeship Standards. These bills were all reviewed during the second half of the 2013/2014 legislative session. Among the chaptered bills signed by the Governor in the digest are:

AB 1035 extends the time period to file a dependency case with the WCAB from 240 weeks to no later than 420 weeks from the date of injury for certain safety workers if the death was due to cancer, tuberculosis, a blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection; Governor Brown vetoed a similar bill last year.
AB 1746 requires that cases in which an unrepresented employee who is or was employed by an illegally uninsured employer be placed on the priority conference calendar at the WCAB. It must be held within 30 days after a DOR is filed in the case..
AB 2230 allows CIGA to levy an assessment of up to two percent of direct written premiums for the payment of covered claims and expenses.
AB 2732 makes technical, non-substantive, and clarifying changes to several Labor Code provisions amended or enacted by SB 863.

It is of interest that the Governor vetoed the following bills that pertain to Workers’ Compensation.

AB 2052 would have established or expanded presumptions of injury for safety officers In the veto message Brown said “This measure seeks to expand coverage to dozens of additional categories of officers without real evidence that these officers confront the hazards that gave rise to the presumptions codified in existing law. Presumptions should be used rarely and only when justified by clear and convincing scientific evidence.”
AB 2378 would have overturned the June 2013 decision by the California Court of Appeals in County of Alameda v. WCAB (Knittel) (2013) 213 Cal.App.4th 278, 78 Cal. Comp. Cases 81, which ruled that the period of salary continuation must be counted as part of the 104-week limit on TD benefits.
AB 2616 would have established a statutory presumption that a MRSA infection that develops in a hospital employee who provides direct patient care in an acute care hospital is work related. Brown’s veto message said “The determination that an illness is work-related should be decided by the rules of that system and on the specific facts of each employee’s situation. While I am aware that statutory presumptions have steadily expanded for certain public employees, I am not inclined to further this trend or to introduce it into the private sector.”

Other bills of interest that were signed into law include

AB 326 modernizes reporting requirements for employers reporting serious injury, illness or death. This law provides that employers may also report such incidents via email and removes the option to report via telegraph.
AB 1522 creates the Healthy Workplaces, Healthy Families Act of 2014, which provides that as of July 1, 2015, employees shall accrue compensated sick leave to care for themselves or for family members as defined in the bill. Under this bill, employers shall provide up to 24 hours (i.e., three days) of paid sick leave each year.

The Governor vetoed the following bill that pertains to Employment Law.

AB 2271 would have restricted employers, employment agencies, and persons who operate an Internet website from posting job advertisements that indicate an individual’s current employment is a requirement for a job. The veto message said “While I support the intent of this bill, it could impede the state’s efforts to connect unemployed workers to prospective employers as currently drafted. The problems facing our state’s long term unemployed are great. There is no doubt that those Californians want to get back to work and I want to help them get there – unfortunately this bill does not provide the proper path to address this problem.”

The 26 page DIR 2014 Legislative Report, or the website of the Legislative Counsel of California should be consulted for further more detailed information about these and other laws that take effect in January.

Governor Brown has announced some year end appointments, four to the Workers’ Compensation Fraud Assessment Commission and one to the Occupational Safety and Health Appeals Board.

Lilia García-Brower, 41, of Los Angeles, has been appointed to the California Fraud Assessment Commission, where she has served since 2007. García-Brower has been executive director at the Maintenance Cooperation Trust Fund since 2000. She was a teaching assistant at California State University, Northridge from 1999 to 2000 and a college counselor at Volunteers of America, Los Angeles from 1996 to 1999. This position does not require Senate confirmation and the compensation is $100 per diem. García-Brower is registered without party preference.

Donald Marshall, 60, of Fremont, has been appointed to the California Fraud Assessment Commission, where he has served since 2009. Marshall has been vice president at the Zenith Insurance Company since 2003, where he was manager of investigations from 1993 to 1996. He was director of special investigations at Gates McDonald from 1999 to 2003, vice president of CalFarm Insurance from 1996 to 1999 and special investigations coordinator at the California Casualty Insurance Company from 1991 to 1993. This position does not require Senate confirmation and the compensation is $100 per diem. Marshall is a Democrat.

John Riggs, 61, of Mission Viejo, has been appointed to the California Fraud Assessment Commission, where he has served since 2009. Riggs has been manager of worker’s compensation at Disneyland Resort in California since 2003. He was director of workers’ compensation at 99 Cents Only Stores from 2002 to 2003, a regional claims manager and vice president at the California Casualty Management Company from 1993 to 2001, claims manager at the Zenith Insurance Company Workers’ Compensation Branch from 1987 to 1993 and an independent claims consultant from 1986 to 1987. This position does not require Senate confirmation and the compensation is $100 per diem. Riggs is a Republican.

Douglas Williams, 65, of Lancaster, has been appointed to the California Fraud Assessment Commission, where he has served since 2011. Williams has been an application processor for the Labor Management Cooperative Trust, Market Retention Committee since 2012. He was a manager at Ironworkers Local Union 433 from 2006 to 2012, where he was a business agent from 2000 to 2006. Williams was a superintendent at Benson Wall Systems from 1997 to1999, a rigging foreman at Randall’s Erectors in 1997 and a lay-out foreman at South Coast Structural from 1996 to 1997. He was a journeyman at Junior Steel in 1996, a rigging foreman at Sheedy Drayage Company in 1995 and a journeyman at Plastal Manufacturing Company from 1994 to 1995 and at Atlas Industrial Contractors in 1994. This position does not require Senate confirmation and the compensation is $100 per diem. Williams is a Democrat.

Art Carter, 73, of San Francisco, has been reappointed member and chair of the Occupational Safety and Health Appeals Board, where he has served since 2009. Carter was legislative advocate for Art Carter and Associates from 1984 to 2004 and served as deputy chief administrative officer for the city of San Francisco in 1983. He served as chief of the California Department of Industrial Relations, Division of Occupational Safety and Health Administration from 1976 to 1983 and was secretary-treasurer for the Contra Costa County Central Labor Council from 1967 to 1976. This position requires Senate confirmation and the compensation is $121,778. Carter is a Democrat.

A federal judge dismissed a class action accusing the NFL of giving football players dangerous painkillers to mask their injuries.

According to the report in Courthouse News, U.S. District Judge William Alsup found the lawsuit brought by more than 500 former players must be settled under the collective bargaining agreements between the NFL and the players’ union, as the crux of the claim is that players’ teams mistreated them, and that the league did nothing to stop it in his 22 page ruling. The lead plaintiff was Richard Dent, a former Chicago Bear.

“One problem is this: no decision in any state (including California) has ever held that a professional sports league owed such a duty to intervene and stop mistreatment by the league’s independent clubs,” Alsup wrote. Alsup ruled that while the agreement’s medical care provisions may not be perfect, and its protections may not specifically discuss prescribing drugs and painkillers, “this is not a situation in which the NFL has stood by and done nothing.”

“The main point of this order is that the league has addressed these serious concerns in a serious way – by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves,” Alsup wrote in his 22-page ruling. “These benefits may not have been perfect but they have been uniform across all clubs and not left to the vagaries of state common law. They are backed up by the enforcement power of the union itself and the players’ right to enforce these benefits.” He continued: “Given the regime in place after decades of collective bargaining over the scope of these duties, it would be impossible to fashion and to apply new and supplemental state common law duties on the league without taking into account the adequacy and scope of the CBA duties already set in place.”

At a hearing in October that signaled Alsup’s decision, he said: “The union is supposed to be looking out for the plaintiffs. The labor union is the one that is supposed to be doing this.” Alsup ordered that the players’ union weigh in on whether the retired players could still arbitrate their grievances.

The union complied with that order, and Alsup, who found that the players’ retiree status should not bar them from arbitration, quoted the union’s letter in his ruling. “On this issue, the union’s letter has explained that ‘the current CBA and former CBAs have included various provisions negotiated on behalf of current and future players that continue to benefit those players after they retire from the NFL,’ such as provisions on retirement plans or termination pay,” Alsup wrote. “In fact, former players in other cases have been able to arbitrate their grievances against the NFL or individual clubs, notwithstanding their prior retirement from the league.”

Though Alsup found the issue should not be decided in federal court, he said: “This order does not minimize the underlying societal issue. In such a rough-and-tumble sport as professional football, player injuries loom as a serious and inevitable evil. Proper care of these injuries is likewise a paramount need.”

The players may file an appeal, or may file a motion to file an amended pleading. Thus this may not be the final word on this claim filed in San Francisco, or the Workers’ Compensation claims that may also follow.

A federal lawsuit alleging price gouging by the maker of hepatitis C drug Sovaldi mirrors a growing struggle to contain hepatitis C-related workers compensation prescription costs that can reach up to $150,000 per claimant. While Sovaldi, which entered the market a year ago, is a highly effective treatment that can cure patients of hepatitis C – unlike other treatments for the chronic liver infection – employers should carefully monitor its use to determine whether cheaper treatments are available or appropriate, experts say.

In the class action suit filed Dec. 9 in U.S. District Court in Philadelphia, the Southeastern Pennsylvania Transportation Authority in Philadelphia says it has paid more than $2.4 million for Sovaldi prescriptions for its employees in 2014. According to the story in Business Insurance, the agency accuses Sovaldi’s maker, Foster City, California-based pharmaceutical company Gilead Sciences Inc., of “selectively charging exorbitant prices” for Sovaldi, and is seeking unspecified restitution and monetary damages against Gilead for alleged unjust enrichment, violations of the Patient Protection and Affordable Care Act and other claims.

While the SEPTA suit relates to group health payments for Sovaldi, workers comp payers also are seeing rising costs related to the drug. Pharmacy benefit manager Express Scripts Inc. said spending for hepatitis C medications in workers comp increased 135% in the first six months of 2014 compared with the same period in 2013. About 66% of that increase is attributed to Sovaldi prescriptions, the company said in a statement. The cost increase occurred despite a reduction in the number of pharmacy prescriptions for hepatitis C medications at Express Scripts, where workers comp claims for the disease fell to 79 in the first half of 2014, down from 92 in the first half of 2013, according to the PBM’s data. Health care workers, emergency first responders and other workers who are regularly exposed to bodily fluids are most likely to file for workers comp benefits related to hepatitis C.

“Sovaldi is priced at an orphan drug price for a population that is not an orphan drug population. So it’s priced really at a premium that we can’t sustain,” said Brigette Nelson, senior vice president of workers compensation clinical management for Express Scripts in Cave Creek, Arizona. So-called orphan drugs are medications used for illnesses that affect only a small subset of the population.

Hepatitis C treatment costs can soar higher when Sovaldi, which costs $84,000 for a 12-week course of treatment, is paired with another new hepatitis C drug called Olysio, which is made by Titusville, New Jersey-based pharmaceutical company Janssen Therapeutics and costs $66,360 for a 12-week course of treatment. The U.S. Food and Drug Administration approved both drugs in late 2013. The medications often are used together to help increase the chances of curing a patient’s hepatitis C infection, said Phil Walls, chief clinical and compliance officer at Tampa, Florida-based PBM Matrix Healthcare Services Inc., which does business as myMatrixx.

Trying to limit drug costs for hepatitis C under a workers comp claim can be tricky. Experts agree that Sovaldi and other newer treatments are more effective than older, cheaper hepatitis C medications that include longer courses of treatment, have more side effects, require patients to take multiple doses a day and less likely to cure patients of the disease. “We’re not disputing that Sovaldi is a much better drug, because it is better tolerated than the previous therapies. It’s just the cost that we’re concerned about,” Ms. Nelson said.

Employers should work with their TPA or PBM to create prescription drug formularies that would automatically flag a claim for Sovaldi and initiate a review of whether the drug is appropriate for certain patients, Ms. Harer said. For example, patients recently exposed to bloodborne pathogens may be effectively treated with prophylactic antiviral medications that can prevent infection and are much less costly than Sovaldi and other hepatitis C treatments, she said. Mr. Walls said claim payers should consider using specialty drug pharmacies to fill prescriptions for Sovaldi or other hepatitis C drugs, since such pharmacies specialize in helping patients to adhere to drug treatments.

Proper adherence can make sure that a Sovaldi drug course works the first time, preventing a patient from needing to do another expensive round of the treatment in the future, he said. “You really need to be compliant with your therapy in order for the drug to be as effective as possible,” Mr. Walls said.

Ms. Nelson of Express Scripts said the company – the nation’s largest PBM – is pushing Gilead and other hepatitis C drug makers for more competitive prescription prices. “That’s the next step that needs to happen so that people have access to drugs at a cost that can be sustained,” she said.

The Terrorism Risk Insurance Act (TRIA) is a United States federal law signed by President George W. Bush on November 26, 2002. The Act created a federal “backstop” for insurance claims related to acts of terrorism. The Act “provides for a transparent system of shared public and private compensation for insured losses resulting from acts of terrorism.” The Act was originally set to expire December 31, 2005, was extended for two years in December 2005, and was extended again on December 26, 2007. The current law, under the Terrorism Risk Insurance Program Reauthorization Act, is set to expire on December 31, 2014.

The potential for the TRIA expiration was seen as a potential catastrophe in the insurance marketplace by some workers’ compensation experts. They reasoned that the peculiar nature of workers’ compensation policies precluded insurance carriers from excluding catastrophic losses from their policies, and as a result the increase risk of a massive claim loss should there be a repeat of an act of terrorism similar to the September 11 event could pose an unacceptable risk. As a result, the expectation was that carriers would simply exit the market rather than underwrite the risk leaving employers in an insurance marketplace with no or extremely expensive carriers.

According to a report in Property Casualty 360, It seems that this disruptive lack-of-insurance scenario will not occur on January 1.

Congress failed to act on TRIA before adjourning for the year, meaning TRIA will expire at the end of the year. This was a big surprise, as most felt the House would be the reason for TRIA not getting extended. Last week the House passed a TRIA extension bill, but it was the Senate that ultimately failed to take up a vote on the issue. Why did this happen? Unfortunately, Congress has a habit of tacking unrelated riders onto bills with the hope of getting these issues passed. In this case, the House added amendments to NARAB II legislation, which has to do with licensing of insurance agents and brokers. Some in the Senate were not comfortable with those issues, which kept the Senate from approving the House bill on TRIA.

So what happens now with TRIA? The new Congress will reconvene on January 6, 2015, and the expectation is they will take up TRIA. However, given what just happened, you cannot assume the new Congress will pass a TRIA bill. And even if they do, a new bill may look substantially different than what was on the table.

What does this mean to the workers’ compensation industry? Back in February, carriers started issuing policies that contemplated coverage without the TRIA backstops. Employers saw some carriers pull back from certain geographic locations — most notably in New York City, particularly in Manhattan. They also saw some carriers change the terms of their policies and only bind coverage through the end of the year, giving themselves the flexibility to renegotiate terms or terminate coverage if TRIA did not renew. There were legitimate concerns that the workers’ comp marketplace in New York City would be in chaos by the fourth quarter of 2014 as brokers scrambled to place coverage beyond January 1, 2015. The New York State Insurance Fund was in the middle of these discussions, as they were faced with the prospect of having to provide coverage for employers if the private marketplace did not respond.

As the year progressed, something else happened. The marketplace responded. While some carriers pulled back in certain geographic locations, others stepped up to take their place. While some carriers tied their policy expiration to the expiration of TRIA, other carriers did not. Ultimately, employers were still able to obtain workers’ compensation coverage in the private marketplace.

What does this mean going forward? There may still be some policies out there that have endorsements allowing the carrier to cancel or renegotiate terms when TRIA expires, but this does not appear to be a widespread issue. Since workers’ compensation is statutory, and carriers cannot exclude for cause, there cannot be terrorism risk exclusions on a workers’ compensation policy. The carrier’s only choice is to provide coverage or decline the risk. While this may not hold true for other lines of coverage, the workers’ compensation marketplace has adapted to the absence of TRIA. Carriers are likely paying more attention to their geographic concentration of exposures, which means employers will have fewer choices, and may see higher pricing. But, at the end of the day, employers should be able to obtain workers’ compensation coverage without the TRIA backstop in place.