2010 Relevant Statutory and Regulatory Changes

By
Brian G. Binkley

As with every new-year the state legislature introduces changes into the law that affect the Workers’ Compensation landscape. Although the changes for 2010 do not appear overly dramatic, knowledge and understanding of those changes can be beneficial in realizing cost-savings techniques and to ensure that all necessary mandates are enforced.

   Statutory Related Changes

The legislature has amended Labor Code §3600 mandating that if an employee is killed or injured by a third-party in the course of employment, no personal relationship will be deemed to exist between the employee and the third party based solely on the other person’s racial, religious or other like motive for the attack. The amendment is named "Taneka’s law," after a 26 year-old woman who was stabbed to death by a man who admitted he attacked her based solely claiming race. The new enactment will oppose denial of a workers’ compensation claim when the motive of an attacker was personal as opposed to work-related or work-connected.

The legislature also amended Labor Code §4850 which provides special benefits to peace officers in lieu of "temporary disability" (reimbursement for lost salary after an injury during recovery time). Certain public employees get their full salary for a year under this statute as opposed to 2/3 of one’s average weekly wages to statutory maximums for non-safety employees. The statute as amended eliminates the requirement that specified public employees (i.e. police officers, fire-fighters, etc as enumerated under LC § 4850(b)(1-12)) be members of specified public retirement systems in order to qualify for these benefits. This will allow a broader range of public employees who now qualify for these enhanced benefits.

The legislature has enacted Labor Code §4610.3 mandating that once an employer authorizes medical treatment, it may not, for any reason, rescind or modify that authorization after the care has been provided. This includes a subsequent determination that the physician who provided the treatment was not eligible to treat and applies regardless of whether the employer controls treatment through its Medical Provider Network ("MPN").

The legislature has also amended Labor Code §3722 making the punishment for failing to get workers’ compensation insurance much harsher. An uninsured employer will be subject to a penalty assessed by the Director of Industrial Relations consisting of 1) twice the amount the employer would have paid in workers’ compensation premiums during the period the employer was uninsured or 2) the sum of $1,500 (up from $1,000) per employee employed during the period of non-insurance, whichever is greater. This is in addition to criminal charges and fines that may be pursued. The change in penalty assessment is to become operative January 1, 2011.

   Regulatory Related Changes 

The two major regulatory changes in 2010 are in the areas of Qualified Medical Evaluations (doctor appointments which are used to determine benefits due, if any) and Medical Treatment Utilization (what kind of care is appropriate for certain injuries).

The Administrative Director has amended Title 8 California Code of Regulations §§ 1-159 covering almost all aspects of the workers’ compensation evaluation process including fees, scheduling and obtaining the reporting necessary to administer workers’ compensation benefits. Some argue that these rules were not properly amended and that they deny employers and, in some cases, employees rights allowed by the statutory changes effective in April 2004. In some cases, the time limits relating to the setting of appointments are now inviting "doctor shopping" or searching for a favorable instead of a fair doctor. Litigation is currently active and proceeding on these statutes as litigants try to fight for their interpretations and rights.

The Administrative Director has updated Title 8 California Code of Regulations §§9792.20-9792.26 to outline initial management and treatment of common injuries to the neck, upper back, shoulder, elbow, forearms, wrists, hands, low back, knee, ankle, foot and "stress" cases. This should serve to give employers and employees a fair idea of what treatment works and can be expected in the workers’ compensation system.