Workers' Compensation Law - Legislative Changes for 2008

Legislative Changes for 2008

This year turned out to be another very light year in terms of workers' compensation legislation with only 3 significant pieces of legislation approved by Legislature being signed by the Governor. There were several significant bills that were vetoed by the Governor including:
1. SB 557: Would have allowed audiologist to serve a QME's but still required a medical doctor to provide a diagnosis
2. SB 936: would have virtually doubled PD benefits over a period of 3 years. Very similar to a bill that passed the legislature last year only to be vetoed by the Governor
3. SB 622: Would have imposed up to a $25,000 penalty on employers who erroneously identified employees as independent contractors and also would have crated civil liability for injuries for those employers.

The bills which were signed, along with their prior versions (where applicable) are as follows:

Extension of TTD Cap for payment of the 104 total of TTD:

Effective 1/1/08	Effective until 1/1/09
(2) Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.	(c) (1) Aggregate disability payments for a single injury occurring on or after the effective date of this subdivision, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.

This legislative change provides two significant changes from the prior version (that is still effective for injuries occurring prior to 1/1/08). Not only will there be a significantly increased time for an injured worker to collect the full allotted 104 weeks of TTD, but also eliminated is the issue addressed by the W.C.A.B. in its en banc decision in Hawkins v Amberwood Products. In that decision the W.C.A.B. held the 104 period for payment of TTD commenced with the first payment of TTD not the beginning date that TTD covered. The version of Labor Code § 4656(c) that becomes effective on 1/1/08 eliminates the provision that the 104 week period commences with the first payment of TTD and simply limits the total TTD payment to 104 week during 5 years from the date of injury. An additional consequence of this change is the elimination of the possibility that TTD could extend beyond 5 years from the date of injury. Under the pre 1/1/08 version of this section, if TTD commenced at the 4 year mark after the date of injury, TTD could continue beyond the 5 years until the 1-4 weeks was paid. Under the soon to be implemented section, the 5 year anniversary becomes a statutory limitation on the payment of TTD that cannot be exceeded.

It is important to note that the new Labor Code § 4656(c) is effective only for injuries on or after 1/1/08. There is no legislative expression of intent to have the changes apply to injuries prior to the effective date of the section. Legislation, unless passed as an urgency measure (such as SB 899) becomes effective on the first day of the new year after passage and unless there is a specific expression of legislative intent (as also occurred with SB 899) the legislation does not affect injuries occurring prior to the effective date. You should anticipate arguments that this provision should apply to injuries prior to 1/1/08 where TTD might be payable after 1/1/08. However there is no legal basis for extending the application of the new Labor Code section to any injury prior to the effective date of the provision.

Extension of PT, OT and Chiro Care for Post Surgical Cases:

EFFECTIVE 1/1/08

EFFECTIVE UNTIL 1/1/09

(d) (1) Notwithstanding the medical treatment utilization schedule
or the guidelines set forth in the American College of Occupational
and Environmental Medicine's Occupational Medicine Practice
Guidelines, for injuries occurring on and after January 1, 2004, an
employee shall be entitled to no more than 24 chiropractic, 24
occupational therapy, and 24 physical therapy visits per industrial
injury.
(2) Paragraph (1) shall not apply when an employer authorizes, in
writing, additional visits to a health care practitioner for physical
medicine services.
(3) Paragraph (1) shall not apply to visits for postsurgical physical medicine and postsurgical rehabilitation services provided
in compliance with a postsurgical treatment utilization schedule established by the administrative director pursuant to Section
5307.27.

The change in this section adds subsection (3) that allows increased benefits payable for post surgical physical medicine (which includes PT, OT and Chiropractic care) for injuries after 1/1/08. Like Labor Code § 4656(c), this provision does not have any retroactive effect and arguments extending PT, OT and Chiro treatment for injuries prior to 1/1/08 in the basis of this legislative provision should be rejected.

It is also important to be aware that the lifting of the 24 visit cap is not automatic and only applies to physical medicine and rehabilitative services that are in compliance with a postsurgical treatment utilization schedule established by the Administrative Director. Until such a schedule is adopted, there is no provision for legally extending the 24 visit cap for such treatment modalities unless it is done voluntarily by the employer. While it is likely that such a schedule will be adopted before most Injured workers are likely to undergo surgery for injuries after 1/1/08, there will be a population where such treatment is likely to be incurred prior to the adoption of a treatment UR schedule. This code section does not lift the limits on physical medicine and rehabilitative treatment allowing for unlimited treatment. Care should still be used in authorizing and paying for inappropriate post surgical treatment. There is not a complete lifting of the 24 visit cap as is likely to be asserted by some overly aggressive treaters seeing to find a loophole to the pre-1/1/04 days of unlimited PT, OT and Chiro care.

Once adopted the AD's schedule can still be used to review whether disputed treatment for post surgical care is appropriate for payment of not.

The final approved legislative change will provide for changes in the payment for some hospital treatment, especially burn centers. This section also requires the AD to adopt changes to the OFMS to increase these payment.

Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization

SHAW, JACOBSMEYER, CRAIN & CLAFFEY

475 – 14th Street, Suite 850

Oakland, CA 94612

Tel: (510) 645-7172

Fax: (866) 563-0092

jakejacobsmeyer@shawlaw.org