LATEST WORKERS’ COMPENSATION LAW

By:   Roman P. Mosqueda, Esq.

            You are injured on the job.  Are you covered by the new workers’ compensation statute (SB 899)?

            An urgency statute, SB 899 was enacted to provide relief to the State of California from the effects of the current workers’ compensation crisis.

            It became effective upon the date of enactment of April 19, 2004, regardless of the date of injury.  It is unlike most bills in the past that only applied to the date of injury after enactment.

            But no changes in the workers’ compensation system in SB 899 can constitute good cause to reopen or rescind, alter, or amend any award of the Workers’ Compensation Appeals Board  (WCAB) that is already final.

            Constitutional issues are created by the retroactive application of many provisions of SB 899.  But because a workers’ compensation statute does not deal with life, liberty, or property, but with an administrative benefit-delivery system, it may surmount any constitutional challenge.

Effective Dates For

Particular Issues:

            Aside from the effective date of April 19, 2004, Senate Bill No. 899 provides for effective dates according to particular issues:

1.   Immediate medical treatment within one working day after an employee files a claim form, during the investigation of the claim, up to $10,000, or denial of the claim, whichever occurs first, under Section 5402 of the Labor Code: for claims filed on or after April 19, 2004;

2.   Entire elimination of the treating physician’s or chiropractor’s presumption of correctness in Section 4062.9 of the Labor Code, regardless of the date of injury: for any dispute in existence on or after April 19, 2004, without affecting any prior WCAB decisions;

3.   Liberal construction of the law in favor of extending benefits to injured workers in Section 3202 of the Labor Code: remains unchanged for all dates of injury on April 19, 2004;

4.   Apportionment of permanent disability based on direct causation by the injury arising out of and occurring in the course of employment in Section 4663 of the Labor Code: effective on April 19, 2004;

5.   Job displacement benefits, instead of vocational rehabilitation, in terms of educational-related retraining or skill-enhancement vouchers up to $10,000.00: apply to injuries after January 1, 2004;

6.   Aggregate temporary disability benefits for a single injury of not more than 104 compensable weeks within a period of 2 years from beginning date of payment, except for certain injuries or conditions for which temporary disability may extend no more than 240 compensable weeks within a period of five years from the date of injury, such as acute and chronic hepatitis B or C, amputations, severe burns, HIV, certain eye injuries, pulmonary fibrosis and chronic lung disease: effective for dates of  injury on or after April 19, 2004;

7.   Changes in permanent disability (PD) benefits and use of American Medical Association (AMA) Guides To The Evaluation Of Permanent Impairment, Fifth Edition, to define permanent disability, in Section 4660 of the Labor Code:  apply to claims for injuries occurring on or after the effective date of the revised permanent disability schedule to be adopted by the Administrative Director of the Division of Workers’ Compensation; changes include increased PD benefits for those with 70% to 99.75% disability, and decreased PD benefits for minor permanent disability;

8.      Limitation of 24 physical therapy, 24 occupational therapy and 24 chiropractic visits per industrial injury in Section 4604.5(d)(1) of the Labor Code: applies to injuries occurring on or after January 1, 2004;

9.      Increase in employer’s control of medical treatment by the establishment of a medical provider network in Section 4616 of the Labor Code; otherwise, after 30 days from the date the injury is reported, the employee may be treated by a physician of his/her own choice, or at a facility of his/her own choice within a reasonable geographic area: effective on January 1, 2005 for all dates of injury at that time;

10.  Use of the updated American College of Occupational and Environmental Medicine Practice Guidelines (ACOEM), prior to adoption of guidelines by the Administrative Director on reasonably-required medical treatment to cure or relieve the injured worker from the effects of his/her injury, in Section 5307.27 of the Labor Code:  use of ACOEM Guidelines beginning March 22, 2004;

11.  Penalty amount for compensation unreasonably delayed or denied at 25 percent of the payment that was delayed or denied (not the entire specie of benefits) in the new Section 5814 of the Labor Code: effective on June 1, 2004, regardless of the date of injury;

12.  Qualified Medical Evaluator (QME) selection process:

      (a)     for represented injured worker, when selection of an Agreed Medical Examiner (AME) cannot be reached, a panel of QME is requested, each party striking one of the names, and the remaining physician becoming the evaluator, in Section 4062.2 of the Labor Code:  effective on or after January 1, 2005;

      (b)   For disputes involving injuries prior to January 1, 2005, the law under current Section 4062 of the Labor Code for represented employee applies; and

      (c)     for unrepresented employees, the employer cannot seek agreement from the employee for an AME, a request form must be submitted by the employee to the Administrative Director, or by the employer, if the employee does not submit the form within 10 days after the form had been furnished by the employer, and selection of a physician from a panel of QME, in Section 4062.1 of the Labor Code: effective on April 19, 2004.

Conclusion:

            The workers compensation system in California has been revised so many times that applicants’ attorneys like the Author have to continuously study and attend seminars on the current revisions.  Many of the provisions of SB 899 are confusing even to attorneys and WCAB judges.

(The Author, Roman P. Mosqueda, has completed attending specialization classes in workers’ compensation law.