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By Julius Young, Esq., Richard Jacobsmeyer, Esq., and Barry Bloom
This 2021 edition is the 40th edition of Herlick, California Workers’ Compensation Handbook. [Note: All chapter references below are to Herlick Handbook.]
Since the 2020 edition of Herlick Handbook, the California system has seen many changes due to COVID-19. This past year, many workers’ compensation stakeholders have changed their operational models. Large numbers of insurance brokers, employer HR departments, insurance and TPA claims departments, attorneys, and other companies servicing the workers’ compensation industry shifted to a remote work model.
Depositions often took place over Zoom, GoToMeeting, or other video platforms. Video and telephonic medical appointments became common. In early 2020 many QME and AME appointments were canceled due to COVID, but many resumed after regulatory guidance from the DWC.
Conferences and hearings were conducted by the Appeals Board over the phone. In mid-2020 the Appeals Board began to use a video conferencing software called LifeSize for expedited hearings and trials.
2020 California legislative battles centered around proposed COVID-19 presumptions and proposed changes to or exemptions from AB 5, the 2019 statute that adopted the “ABC” employment test that was used in the California Supreme Court Dynamex case.
Bills that were signed by Governor Newsom include the following:
SB 1159, effective September 17, 2020, which adds and amends several Labor Code sections to establish a rebuttable presumption for certain specified workers who contract COVID, and a presumption framework for other workers who contract COVID due to an outbreak as defined in the bill.
AB 685, effective January 1, 2021, which adds to and amends the Labor Code to require that under specified circumstances employers provide notification to employees when there have been workers who tested positive and requires certain notices to public health departments.
AB 1867, which under a newly added Labor Code § 248.1, mandates paid sick leave for certain workers who contract COVID, with a sunset on December 31, 2020.
AB 2257, effective September 4, 2020, which under Labor Code §§ 2775 to 2787 provides for exemptions from the application of the AB 5 “ABC” test for various professions and businesses.
AB 323, operative January 1, 2021, which under Labor Code § 2783 will provide newspaper carriers an exemption from the AB 5 “ABC” test.
AB 3012 amended Insurance Code § 1063.1 to expand “covered claims” to include: (1) benefits under the workers’ compensation law of state’s other than California if the injured worker is a California resident and not otherwise entitled to coverage from another organization similar to CIGA; (2) obligations for medical services provided by a medical facility owned by a state or federal agency; and (3) claims arising under a policy that has been statutorily allocated or assumed by a company that later becomes insolvent, if the claim would have been covered had the original company been liquidated.
Other signed bills which may be of interest to the workers’ comp community include the following:
SB 1383, which expands the right of certain workers to take job-protected leave to care for domestic partners, grandchildren, siblings and parents-in-law who have a serious health condition.
SB 1371, which makes non-substantive changes to multiple Labor Code sections.
AB 2043, which requires outreach efforts about COVID-19 to agricultural workers.
The WCAB adopted new Rules of Practice and Procedure which went into effect January 1, 2020:
There was some, but not a lot, of DWC regulatory activity since the 2020 edition.
On August 20, 2020, the DWC Administrative Director ordered evidence-based updates to the MTUS contained in Title 8, California Code of Regulations, sections 9792.23.6, 9792.23.8, 9792.23.11 and 9792.23.12, to be effective on September 21, 2020.
Those MTUS updates addressed treatment guidelines for interstitial lung disease, knee disorders, depressive disorders, and occupational asthma:
Emergency regulations adopted effective May 14, 2020 set forth a protocol for telehealth QME evaluations:
At the time this Foreword went to press, the DWC had not yet finalized a revision to the Medical-Legal Fee Schedule. Revision of the fee schedule for QME evaluations has been a controversial topic for the past several years, and the DWC has unveiled several proposals which were later retracted before formal rulemaking was begun. Stakeholder groups met in 2019 and 2020 in an effort to seek a payment formula that would be widely acceptable. In 2020 the DWC unveiled another proposal and then held an online forum, resulting in an outpouring of opposition from some groups, particularly many QMEs.
A 2019 report from the California State Auditor was critical of the DWC administration of the QME system. Reacting to this, the Joint Legislative Audit Committee held a January 2020 hearing to explore the issue, but there was no apparent progress on addressing problems in the QME system by September 2020.
3. Case Developments
Some of the cases covered in this edition of Herlick Handbook seem particularly noteworthy, including the following Supreme Court and Court of Appeals cases:
Among the Appeals Board panel decisions and Court of Appeal writ denied cases, the following stood out:
4. Other System Developments
Each year we must caution readers that California workers’ compensation law is very complex. Practitioners must navigate a maze of statutes, case law and extensive administrative regulations.
Important developments and issues to watch as of late 2020, include the following:
© Copyright 2020 LexisNexis. All rights reserved. Article excerpted from Herlick, California Workers’ Compensation Handbook, 2021 Edition.