Parker, Kern, Nard & Wenzel
Legal Updates


New Laws for 2018

By
Monica E. Thissen

With a new year also comes new laws, some of which are only designed to clarify the meaning of the existing code section and some that create entirely new law and procedure. Below is a brief breakdown of changes that may potentially affect our readers.

Labor Code 3364 Sheriff’s reserve volunteers
Labor Code 3351 et. seq. define who should be included and excluded as an “employee” for the purpose of obtaining workers’ compensation benefits. Under 3352(a)(3), a person holding an appointment as deputy clerk or deputy sheriff appointed for his or her own convenience, and who does not receive compensation from the county, municipal corporation or citizens of same, is not an employee of the county or municipal corporation. New Labor Code 3364 states that not withstanding that subsection of Labor Code 3352, states that if a volunteer, unsalaried member of a sheriff’s reserve who is not deemed an employee of the county under 3362.5, shall be entitled to workers’ compensation benefits for any injury sustained while engaged in the performance of any active law enforcement service under the direction and control of the sheriff, upon the adoption of a resolution of the board of supervisors declaring that the member is deemed an employee of the county for the purposes of this division.

Labor Code 4600.05 Immediate support from nurse case manager for employees injured by act of domestic terrorism
This newly added code section states that if the Governor has declared a state of emergency pursuant to Government Code 8558(b) in connection with an act of domestic terrorism, an employer pursuant to 3300 shall provide immediate support from a nurse case manager for employees injured by the act of domestic terrorism (as defined by 18 USC 2331), whose injuries arise out of and in the course of employment, to assist injured employees with obtaining medically necessary treatment pursuant to the MTUS and to assist medical providers in seeking authorization for same. Once a state of emergency has been declared and an employer has been notified of a claim of injury arising from that emergency, shall provide notice to the claimant within 3 days advising of the assignment of the NCM and assistance that will be provided. Additional regulations shall be adopted to implement this section.

Labor Code 4610 Utilization review
As amended, 4610(b) states that for all dates of injury occurring on or after 1/1/18, emergency treatment services and medical treatment rendered for a body part or condition that is accepted as compensable and is addressed by the MTUS, provided by a member of the MPN or HCO, a predesignated physician or if the treatment is rendered by a physician or facility selected by the employer, within the 30 days following the initial date of injury, shall be authorized without prospective utilization review except as provided in subdivision (c), as long as the services rendered are consistent with the MTUS. The treatment provider must still report per 6409 and complete an RFA within 5 days following the initial visit.

Exceptions in subsection (c) include the following:

  1. Pharmaceuticals, unless they are expressly exempted by statute or authorized by the drug formulary pursuant to 5307.27.
  2.  Nonemergency inpatient and outpatient surgery, including pre and post surgical services.
  3.  Psychological treatment.
  4.  Home health care services.
  5.  Imaging and radiology services, excluding x-rays.
  6.  Durable medical equipment whose combined cost exceeds $250 according to OMFS.
  7.  Electrodiagnostic medicine, including but not limited to EMG and NCV.
  8.  Any other service designated and defined through rules adopted by the AD.

4610(d) regarding bills for emergency treatment services, has also been amended to allow the provider 180 days (previously 30 days) to submit the request for payment to the employer, its insurer or claims administrator.

Further subsections of this code section state that the employer may remove a physician’s ability under this section to provide treatment that is exempt from UR during the first 30 days if the physician fails to submit the report required by 6409 and RFA within 5 days of the initial examination. An employer may also perform retrospective UR for any treatment provided pursuant to subdivision (b) solely for the purpose of determining whether the treatment prescribed is consistent with the MTUS and/or drug formulary. If a physician is found to have a pattern and practice of failing to follow the MTUS in prescribing treatment, shown by retrospective UR, the employer may remove the ability of the physician to provide further medical treatment to any employee that is exempt from prospective UR by notifying the physician of the UR results and that prospective UR is required for all subsequent treatment. Retrospective UR finding the treatment provided to be inconsistent with the MTUS may constitute a showing of good cause for an employer’s petition requesting a change of PTP and may serve as grounds for termination of the physician or facility from the MPN or HCO.

Labor Code 4615 Liens on behalf of providers criminally charged with fraud
This code section has been amended to include not only physicians and providers of medical treatment or medical-legal services, but also to entities controlled by an individual charged with criminal fraud, meaning they are an officer or director of the entity or a shareholder with a 10% or greater interest in the entity. Upon the filing of criminal charges against the provider or entity, liens filed by or on behalf of a physician, provider, practitioner, or entity shall be automatically stayed until the disposition of the criminal proceedings. If the charged provider is found guilty or pleads guilty to the crime, those liens shall be dismissed automatically by operation of law, even if an appeal is pending. The automatic stay, however, does not preclude a physician, practitioner, or provider from requesting the chief judge of the DWC, or his or her designee, lift the stay in order to dismiss the liens with prejudice.

The mileage reimbursement rate is now $0.545 cents per mile for all dates of travel in 2018 regardless of date of injury.

The maximum weekly total temporary disability rate for dates of injury on or after 1/1/18 is $1,215.27 (an increase of $42.70), and the minimum rate is $182.29 (an increase of $6.41).