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By Julius Young, Esq., Richard M. Jacobsmeyer, Esq., Barry D. Bloom, Co-Editors-in-Chief, Herlick, California Workers' Compensation Handbook
This 2016 edition is the 35th edition of Herlick, California Workers’ Comp Handbook (hereinafter “Herlick”). The latest Herlick Handbook will ship to customers at the end of this month. You can purchase it here.
[Publisher’s Note: Citations below link to lexis.com; bracketed cites link to Lexis Advance.]
Legislatively, 2015 was not a major year for workers’ comp related bills. Governor Brown signed the following workers’ comp legislation:
Employees; Cheerleaders. The legislature has added Lab. Code § 2754 to provide that cheerleaders for California-based professional sports teams are deemed to be employees. See Herlick Ch. 2, § 2.5.
Undocumented Workers; UEBTF; SIBTF. The legislature has enacted Lab. Code §§ 3733 and 4756, which prohibit using citizenship status to deny paying compensation to an injured worker from the Uninsured Employers Benefits Trust Fund or the Subsequent Injuries Benefit Trust Fund. See Herlick Ch. 2, § 2.3.
Prescription Drug Formulary. The legislature has amended Lab. Code §§ 4600.1, 4600.2, and 5307.27 [LC 4600.1, 4600.2, 5307.27], and enacted Lab. Code §§ 5307.28 and 5307.29, mandating that the Administrative Director establish a drug formulary by July 1, 2017, as part of the medical treatment utilization schedule, for medications prescribed in the workers’ compensation system. See Herlick Ch. 4, § 4.06.
Notices in Additional Languages. The legislature has enacted AB 438, amending Lab. Code § 124 [LC 124] to add a requirement that no later than January 1, 2018 certain specified forms be made available in Chinese, Korean, Tagalog, and Vietnamese in addition to in English and Spanish. See Herlick Ch. 1, § 1.01[a].
Medical Provider Networks. The legislature amended Lab. Code § 4616 [LC 4616] to provide that beginning January 1, 2016, every MPN must provide on its website contact information for communicating with the MPN and medical access assistants and for how injured workers can obtain a copy of MPN notifications. See Herlick Ch. 4, § 4.11[a]. In addition, Lab. Code § 4616 has been amended to provide that an approved MPN modification plan is deemed approved for four years from the re-approval date. See Herlick Ch. 4, § 4.11. The legislature also amended Lab. Code § 4616.2 [LC 4616.2] to provide that an MPN must file a written continuity of care policy with the AD, and that an employer or its claims adjuster must provide for completion of care by a terminated provider as specified. See Herlick Ch. 4, § 4.11.
Home Health Care Payment Schedule. The legislature has amended Lab. Code § 5307.8 [LC 5307.8] to provide that the AD is authorized to adopt a schedule for payment of home health care services that is based on the maximum service hours and fees set forth in provisions of state law governing in-home supportive services or other specified state or federal home health care services fee schedules. See Herlick Ch. 4, § 4.17.
Governor Brown vetoed the following bills:
> AB 1451 (to add Oceanside lifeguards to workers enumerated in Lab. Code § 4850 [LC 4850])
> AB 305 (to prohibit apportionment of physical injuries for pregnancy or menopause; it would also prohibit apportioning psychiatric injuries to sexual harassment, pregnancy or menopause and the measure would also require that the impairment rating for breast cancer be no less than the comparable rating for prostate cancer)
> AB 1542 (to restore the QME specialty designation for clinical neuropsychologists)
2015 continued to see significant California workers’ comp regulatory activity, including the following:
Medical Treatment Utilization Schedule. The Division of Workers’ Compensation has promulgated amended and new regulations regarding the medical treatment utilization schedule. See Herlick Ch. 4, § 4.01.
Official Medical Fee Schedule. The Division of Workers’ Compensation has promulgated amended and new regulations regarding the official medical fee schedule. See Herlick Ch. 4, § 4.17.
Qualified Medical Evaluator. A revision of the QME regulations was approved by the Office of Administrative Law in August 2015. One controversial part of these new regulations was the removal of neuropsychology as a designated OME specialty. Given the statutory language as to the requirement for identification of QME specialties, the lack of recognition of that specialty by the statutorily identified entity appeared to require the Administrative Director to remove the classification. A proposed legislative fix, AB 1542, passed the legislature but was vetoed by Governor Brown.
Benefit Notices. Revised benefit notice regulations were promulgated and approved in September 2015.
Copy Service Fees; WCIS. Other regulations approved in 2015 include copy service fee regulations [see Herlick Ch. 4, § 4.17] and Workers’ Compensation Information System (WCIS) regulations.
ICD-10. The Office of Administrative Law approved ICD-10 regulations effective October 1, 2015. See Herlick Ch. 4, § 4.08, .
Still under consideration by the Division of Workers’ Compensation or slated for proposed development as this year’s Herlick Handbook went to press are regulations on the following topics:
> chronic pain medical treatment guidelines and opioid treatment guidelines
> hospital outpatient and ambulatory surgery fee schedules
> vocational expert fees
> home healthcare provider fees
> Appeals Board Practice & Procedure rule renumbering and amendments
III. Case Developments
Some of the significant recent cases and issues covered in Herlick Handbook include the following:
Independent Medical Review. In Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074 [241 Cal.App.4th 1074], the Court of Appeal upheld the constitutionality of the IMR process.
Independent Bill Review. In CIGA v. Workers’ Comp. Appeals Bd. (2014) 232 Cal.App.4th 543 [232 Cal.App.4th 543], the Court of Appeal upheld an Appeals Board decision that IBR did not apply to disputes over payment amounts that arose prior to the enactment of the IBR process effective 1/1/2013.
Utilization Review-Independent Medical Review. UR-IMR timeliness issues continued to be a source of dispute. The Appeals Board issued a significant panel decision in Bodam v. San Bernardino County (2014) 79 Cal. Comp. Cases 1519 [79 CCC 1519], in which it determined that any failure to comply with the timeliness requirements for a UR determination was sufficient to render a UR determination invalid and vest jurisdiction with the Appeals Board to determine medical necessity of treatment. In Bodam, the UR decision was not communicated to the treating physician with 24 hours by phone, fax or email as required by statute. However, on the issue of timeliness of IMR decisions under Lab. Code § 4610.6(d), different Appeals Board panels arrived at competing results. In Southard v. Hallmark Greeting Cards, 2015 Cal. Wrk. Comp. P.D. LEXIS 365 [2015 Cal. Wrk. Comp. P.D. LEXIS 365], and Saunders v. Loma Linda Univ. Med. Group, 2015 Cal. Wrk. Comp. P.D. LEXIS 311 [2015 Cal. Wrk. Comp. P.D. LEXIS 311], 2-1 decisions of identical panels issued, finding the time frames in Lab. Code § 4610.6(d) [LC 4610.6] mandatory with violations of the time limits vesting jurisdiction with the Appeals Board to decide medical treatment issues, while in Arredondo v. Tri-Modal Distrib. Servs., 2015 Cal. Wrk. Comp. P.D. LEXIS 209 [2015 Cal. Wrk. Comp. P.D. LEXIS 209], an opposite result was reached, also in a 2-1 decision by a differently constituted Appeals Board panel. In October 2015 the California Court of Appeal issued a writ in Hallmark Marketing v. Workers’ Comp. Appeals Bd. (Southard).
Due Process; Cross-Examination of Employee. In Ogden Entertainment Services v. Workers’ Comp. Appeals Bd. (Von Ritzhoff) (2014) 233 Cal.App.4th 970 [233 Cal.App.4th 970], the appellate court criticized and reversed the Appeals Board for failing to provided adequate due process to defendant where the employee refused to allow himself to be cross-examined on multiple occasions.
Premises Line Rule. In Schultz v. Workers’ Comp. Appeals Bd. (2015) 232 Cal.App.4th 1126 [232 Cal.App.4th 1126], an appellate court held the premises line rule applied to the employee, who suffered injuries in a single-car traffic accident, because he was a civilian working on a secure United States Air Force base not generally open to the public, he had entered the base in his personal vehicle after passing a guard gate using a security pass issued by his employer with the approval of the Air Force, he had travelled one mile inside the base when the accident occurred, and the undisputed evidence established that although he worked out of a fixed location, the employer had multiple locations on the Air Force base and the employee travelled sometimes in his own vehicle, as needed, throughout the base to perform work assigned by the employer.
Bunkhouse Rule. In Wright v. State of California (2015) 233 Cal.App.4th 1218 [233 Cal.App.4th 1218], the Court of Appeal reversed a trial court ruling on exclusive remedy finding a factual determination was necessary in a premises liability action as to whether a correctional officer was acting in the course of his employment under the bunkhouse rule when he fell on an allegedly defective concrete step while walking to work from an apartment he rented on the prison grounds. The employee presented evidence that he was not required to reside there as a condition of his employment. Accordingly, the trial court erred in applying the premises line exception to the going and coming rule on summary judgment and ruling that workers’ compensation was the exclusive remedy for the officer’s injuries pursuant to Lab. Code § 3600(a) [LC 3600], without considering the bunkhouse rule.
On-Demand Economy; Employee Status. In both Cotter v. Lyft, Inc. (N.D. Cal. 2015) 80 Cal. Comp. Cases 329 [80 CCC 329 ] and O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2015) 80 Cal. Comp. Cases 345 [80 CCC 345], appellate courts denied defendants’ requests for summary judgment on the issue of independent contractor status for passenger drivers, holding the question was one of mixed fact and law and required further evidence to resolve. Both cases were remanded for trial on the employment status of the drivers.
Firefighter Cancer Presumption. In Lozano v. Workers’ Comp. Appeals Bd. (2015) 236 Cal.App.4th 992 [236 Cal.App.4th 992], the appellate court held that application of the newly enacted standard for cancer presumptions for firefighters was procedural, not substantive, and therefore could be applied prospectively to cases arising prior to the effective date of the statute.
Staffing Firms; Self-Insurance. The court in Kimco Staffıng Services, Inc. v. State of California (2015) 236 Cal.App.4th 875 [236 Cal.App.4th 875], upheld as constitutional the statutory restrictions on self-insurance on temporary staffing agencies enacted as part of SB 863.
Injury AOE/COE; Causation; Standard. In South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 [61 Cal.4th 291], the Supreme Court affirmed the existing legal standards that a claim for injury resulting in death of an employee required only that the injury be a contributing factor and did not require the injury be a “substantial” factor in the cause of death.
Special Death Benefits. The court in Dept. of Corrections and Rehabilitation v. Workers’ Comp. Appeals Bd. (Thompson) (2015) 238 Cal.App.4th 1131 [238 Cal.App.4th 1131], upheld defendant’s appeal of a dependency benefit by the Appeals Board, where the Board found that a state prison employee’s death had an industrial cause, and that the special death benefit provisions of Gov. Code §§ 21258, 21530, 21537, 21541, and 21542 [GC 21258, 21530, 21537, 21541, 21542] for public employees’ retirement system (PERS) members were applicable. Consequently, the Board erred when it awarded the full workers’ compensation death benefit under Lab. Code § 4702 [LC 4702], to the surviving spouse without crediting the PERS special death benefit against the award pursuant to Lab. Code § 4707(a) [LC 4707], and without joining the PERS Board as a defendant as provided in Lab. Code § 4708 [LC 4708], for the purpose of making a joint calculation of workers’ compensation and PERS death benefits in a single proceeding after the Appeals Board resolved the issue of industrial causation for the death.
Lien Activation Fee. The Ninth Circuit in Angelotti Chiropractic, Inc. v. Baker (9th Cir. 2015) 791 F.3d 1075 [80 CCC 672], ordered a temporary restraining ordered against the DWC be dissolved, thereby allowing enforcement of the lien activation fee enacted as part of SB 863. As of the date this edition of Herlick Handbook went to press, the Ninth Circuit had denied a petition for rehearing and the Federal District Court has issued an order requiring the DWC to accept lien activation fees between 11/9/15 and 12/31/15. The Court order provides all liens filed prior to 1/1/13 for which no activation fee has been paid by 1/1/16 will be dismissed by operation of law pursuant to Labor Code § 4903.06(a)(5) [LC 4903.06].
Rebuttal of 2005 Schedule. In Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 CCC 1119], the Court of Appeal issued an opinion rejecting a Board ruling which had found that the 2005 rating schedule could be rebutted by vocational expert analysis using a “similarly situated” approach. In its ruling the Court of Appeal discussed the standard for rebutting the schedule under the Ogilvie case and indicated that the focus under one Ogilvie rebuttal method must be the lack of amenability for rehabilitation.
Time for Mailing IMR Appeal. The Appeals Board issued an en banc decision in Matute v. Los Angeles Unified School District (2015) 80 Cal. Comp. Cases 1036 [80 CCC 1036], holding that where Lab. Code § 4610.6(h) [LC 4610.6] provides that a verified appeal from an IMR determination must be filed with the Appeals Board within 30 days of the date of mailing of the determination to the aggrieved employee or employer, the term “mailing” is equivalent to and means “service by mail”. Therefore, the 30-day period is extended by five days pursuant to Lab. Code § 5316 [LC 5316] and Code of Civ. Proc. § 1013(a) [CCP 1013].
California workers’ comp law is quite complex, and a number of significant issues pertaining to the 2012 SB 863 reforms remain unresolved. Important developments to watch include the following:
> unfinished regulations on a number of topics noted above
> how the Appeals Board will define “catastrophic injury” for purposes of Lab. Code § 4660.1 [LC 4660.1]
> how the courts will resolve a controversy over when and how a worker may rebut the pre-2013 permanent disability schedule by use of vocational expert testimony and the proper methodology for such analysis
> whether a worker can obtain and use a medical opinion outside the QME process to establish injury AOE/COE
> how the courts will resolve the issue of whether various “new economy” workers are independent contractors or employees subject to workers’ compensation coverage
> how the courts will deal with medical marijuana in the workers’ compensation system
> how the rollout of an online portal for QME panel selection in represented cases affects the handling of cases
Readers can keep current on emerging California workers’ comp issues by reading the LexisNexis California Workers’ Compensation eNewsletter (sign up for free at www.lexisnexis.com/wcnews. The following blogs are also useful to keep abreast of current workers’ comp trends and issues:
WorkersCompZone, a blog written by Herlick Handbook co-editor Julius Young: www.workerscompzone.com.
The Rassp Report, the blog of LexisNexis author Robert G. Rassp: www.lexisnexis.com/rasspreport.
LexisNexis Legal Newsroom Workers’ Compensation Law, a blog by various contributors: www.lexisnexis.com/wc.
To follow regulatory developments, readers should bookmark the California Division of Workers’ Compensation website, www.dir.ca.gov.
The California WCAB Noteworthy Panel Decisions Reporter (LexisNexis) publishes brief summaries of Appeals Board panel decisions and is an indispensable tool to track how the Board is dealing with various issues. It can be ordered at the LexisNexis Store.
The editors thank Robin Kobayashi and the LexisNexis staff for their efforts in updating this year’s Herlick Handbook edition. Thanks to Jay Shergill for his help with the compensation table.
REQUEST FOR COMMENTS
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