BRIEF LEGAL UPDATE

WORK COMP LEGISLATIVE UPDATE

As the 2017-2018 California Legislative Session came to a close in August 2018, there were several significant bills related to workers' compensation signed into law by Governor Jerry Brown which include:

SB 880/DEBIT CARDS: Modifies Labor Code Section 4651 to allow an employer with an employee's written consent to begin paying in 2019 the indemnity benefits with a renewable debit card. [Comment: Initially designed as a pilot program for SCIF, several carriers asked for the opportunity to use debit cards as an efficient and safe way to pay indemnity. Still a pilot program, it is set to expire 1/1/2023.]
AB 1749/PEACE OFFICERS: Modifies Labor Code Section 3600.2 allowing at the employer's discretion the ability to accept liability for compensation for an injury sustained by a peace officer due to engaging suspected law violators, or while protecting life or property, while outside California and not under the immediate control of his/her supervisor. [Comment: Bill was in response to the October 2017 shooting in Las Vegas in which several California peace officers were injured.]
SB1086/DEATH BENEFIT: Modifies Labor Code Section 5406.7 to permanently allow dependents of firefighters and peace officers to file for death benefits up to 420 weeks from date of injury, not to exceed one year after date of death from specific causes (i.e.cancer, tuberculosis, staph infection). [Comment: Makes permanent a 420 week filing allowance that was set to expire 1/1/2019. Non-firefighter/peace officer worker deaths remain at 240 weeks from date of injury.]
AB 2802/CHILD SUPPORT: Insurance Code Section 13550 provides for the establishment of the "Insurance Payment Intercept Program" in which insurers will work with Child Support Services on paying delinquent child support through deductions of insurance payments on disability income policies, life insurance policies, annuities, and property insurance policies. Please note the statute specifically excludes workers' compensation benefits, which are already addressed by statute. [Comment: This is noted to confirm this "program" does not technically alter existing statutory or case law regarding child support liens within the workers' compensation system.]

WORK COMP IN THE NEWS

VETOED WORK COMP BILLS

Governor Jerry Brown did veto in September 2018 three (3) closely watched work comp bills which were:

1. AB 2496/Janitor Presumption: Would create a rebuttable presumption that a janitor was an employee rather than an independent contractor. [Vetoed as duplicative of existing law, and premature as the recent Supreme Court's Dynamex case may redefine "employment.]

2. AB 479/Breast Cancer: Provided for doctors to use the AMA Guides to determine PD for industrial breast cancer. [Vetoed as unnecessary since AMA Guides are already used to address that issue.]

3. SB 899/Apportionment: Disallows apportionment based upon race, gender, and national origin. [Vetoed as unnecessary since the US Constitution already prohibits any apportionment based upon factors which are "protected classes".]

Despite the sound reasoning for vetoing these bills, they likely will be reintroduced next legislative session when a new Governor is in place.

WCAB OVERTURNED AGAIN

In a victory for the defense and honest statutory construction, the Court of Appeal overturned the WCAB in Dept. of Corrections v. WCAB (Fitzpatrick) (2018) by confirming per L.C. 4600 that determining whether an applicant is 100% in a pre - 2013 date of injury case is to be based upon the the AMA Guides and PDRS unless the rating schedule is rebutted. In this case, the Board inappropriately ignored L.C. 4600 and found 100% disability based upon the overall record per L.C. 4662(b) which allows 100% based upon the overall "fact".

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HEW&S NEWS

In Vazquez v. Pacific Specialty Insurance (2018), the law firm successfully obtained a take-nothing trial decision on 9/4/2018 by proving a self-employed house painter did not qualify as a residential employee as defined under Labor Code Section 3352(h) because he was injured on the third day of the job per the defense witnesses and documentary evidence, and not on the seventh day as he alleged. Attorney H. Neal Wells handled the case involving four witnesses in an all day trial.

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