This article is excerpted from an upcoming edition of Herlick, California Workers’ Compensation Handbook.
This 2019 edition is the 38th edition of Herlick, California Workers’ Comp Handbook.
2018 was the final year of Governor Brown’s term, and as a new administration takes over in 2019 there is uncertainty as to what a new administration may have in mind for California workers’ comp.
2018 saw a number of significant changes in key workers’ compensation people.
In early 2018 the Director of the Department of Industrial Relations, Christine Baker, suddenly resigned. Andre Schoorl was appointed acting director of the DIR.
Later in 2018, Governor Brown filled two of the open slots on the WCAB by appointing Juan Pedro Gaffney and Katherine Williams Dodd, both of whom were confirmed.
2018 was not a year for any major legislative reforms. Yet, there were a number of notable bills that Governor Brown did sign:
AB 1749, which clarifies that certain peace officers injured out of California while performing law enforcement duties are eligible to receive workers’ compensation benefits in the discretion of the employing entity.
AB 2046, which requires anti-fraud data sharing between governmental agencies and grants the Fraud Assessment Commission discretion to augment assessments with unused funds from the prior year assessment.
SB 880, which permits employers to conduct a pilot program of paying disability indemnity benefits by a prepaid card in lieu of paper checks.
SB 1086, which deletes a sunset clause on a law that provides an extended statute of limitations for workers’ compensation death benefits payable to the survivors of public safety officers who died as a result of work-related cancer or certain specified diseases.
AB 2334, which authorizes the Office of Self-Insurance Plans to report certain information.
AB 2802, which creates additional requirements and tools to intercept insurance payments in order to satisfy child support obligations.
Bills vetoed by Brown in 2018 include the following:
AB 479, which would have specified certain rating criteria in breast cancer cases.
AB 553, which would have required that all of the $120 million Return to Work Fund be spent each year.
SB 899, which would have excluded race, gender and national origin as apportionment factors.
AB 1697, which would have codified certain requirements for an anti-fraud analytics unit at the DWC.
AB 2496, which would have specified an employment test for janitorial workers, creating a rebuttable presumption that a worker in janitorial services is an employee.
California’s prescription drug formulary went into effect in 2018. The formulary was required by AB 1124, passed in 2015, which amended Labor Code § 5307.27 to require the Administrative Director adopt and incorporate an evidence-based drug formulary into the Medical Treatment Utilization Schedule (MTUS).
The formulary regulations and MTUS drug list can be seen on the DWC website as follows:
Also adopted in 2018 were provider suspension regulations:
As of late 2018 it was anticipated that the DWC would be unveiling regulations on a number of additional topics: interpreter billing, home health care providers, physician fee schedule, and medical-legal billing schedule. It was not clear, however, whether regulations on these matters would be completed by the time Governor Brown leaves office.
III. Case Developments
Some of the cases covered in this edition of Herlick Handbook seem particularly noteworthy, including the following Court of Appeals cases:
As always, there are too many interesting writ denied cases to list in totality, but a handful stand out include:
IV. Other System Developments
CAUTION: As we usually note, California workers’ comp law is very complex, and system stakeholders must navigate a maze of statutes, case law and extensive administrative regulations.
Important developments and issues to watch as of late 2018, include the following:
Barry D. Bloom
Richard M. Jacobsmeyer
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