A key California Assembly Committee approved a bill that would provide additional temporary disability (TD) for improperly-denied medical treatment, but the bill still has a long way to go before it would become law.
Lawmakers in the California Assembly Insurance Committee voted to “pass” Assembly Bill 1213 out of committee last week, which would provide for additional temporary disability in some medical treatment disputes. In summary, the bill states that:
- When utilization review denied medical care, and
- When Independent Medical Review or the WCAB overturns a denial of medical care,
- Any temporary disability benefits owing from the date of the UR denial through the date of the Independent Medical Review decision would not count toward the 104-week cap on temporary disability benefits.
Before we get to the pros and cons of the bill, it’s important to note that this bill still has a long way to go before it becomes law. It must first go through the remaining Assembly committees, be approved by the Assembly, go through the Senate committees, be approved by a Senate vote, go through the “conference” process which resolves differences between the Assembly and Senate versions of the bill, and lastly, must be signed into law by the governor.
So while the Assembly Insurance Committee is an important step along the path of a bill becoming law, it is far from the finish line.
To be clear, this bill says that “any temporary disability paid or owing from the date of the denial until the treatment is authorized shall not be included in the calculation of the aggregate disability payments under this section.”
In other words, this bill does not create temporary disability where there is none. If someone is working while IMR is mulling a dispute that it later overturns, they are not entitled to TD because of this bill. That is because there was no “temporary disability paid or owing” at the time of the dispute.
PROS AND CONS
As our friends at WorkCompCentral reported, the lobbyists on both sides of the aisle had plenty of commentary on this one. Defense lobbyists pointed out that employers have no control over the IMR process, and that the bill could incentivize unwarranted IMR disputes because of the potential for more TD.
The pro-labor backers of the bill argued that it would only impact a small number of cases, as only 53 UR reversals occurred in the calendar year of 2021 in cases where workers had already amassed 104 weeks of TD. Even in those cases, the amount of TD would arguably be limited, as IMR has 75 days to issue a decision.
That being said, “limited” TD exposure is relative – if an employee has a TTD rate of $1,000/wk, then your carrier would owe about another $11,000 in extra TD, on top of the $104,000 they already paid in TD to an applicant who already used all 104 weeks.
MORE CONS: UNNECESSARY CONFUSION, MORE TRIAL EXHIBITS, MORE LITIGATION
Personally speaking, it’s easy for this defense attorney to see where this would create confusion at the trial level:
- What if the applicant was able to work regular full duty or modified duty while awaiting the results of the IMR dispute, in scenarios where one doctor says applicant is TD, and the other says they can do modified duty?
- If we use our applicant who has a TD rate of $1,000/wk, this bill would add an $11,000 dispute to the case for each IMR dispute that occurred while TD.
- What if the applicant refused to go to work even though regular or modified duty was available? (We see this fact pattern all the time – people contending they were fired, only for the HR manager to tell us “they were never fired and are welcome to come back to work. We can accommodate them too!”)
- What if applicant was caught on sub rosa working a second job while collecting TD? What if applicant was working for another company as an independent contractor during an IMR dispute?
- What if the IMR decision overturning care occurs in the middle of the 104 weeks?
- What if the applicant’s attorney files multiple IMR disputes, and accidentally contends that all resulted in authorizations (when in fact only a few did)?
These scenarios and questions will create headaches for trial judges, and will result in the need for many more exhibits in litigated cases. The last thing our system needs is cases-in-chief trial with more $11,000 disputes due to IMR reversals.
Honest practitioners at the WCAB will tell you that our trial judges need less headachy issues, not more. Trials are more efficient when hundreds of pages of additional exhibits are not necessary.
Assembly Bill 1213 is flawed from the start. It’s unnecessary and threatens to create more litigation while contradicting the legislative intent behind the 104-week cap.
Your humble blogger predicts this bill will end in a veto, if it makes it through the Assembly and Senate. However, only time will tell! We at Bradford and Barthel will continue to monitor the state Legislature this summer and will have more updates right here on the firm’s blog – so stay tuned!
Got a question about workers’ compensation defense issues or pending legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at firstname.lastname@example.org or at (818) 654-0411.
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