2020 Legal Update
Some Important Updates in the World of Workers’ Comp for 2020
2020 is here! Although there are many updates in our wonderful world of California Workers’ Compensation, here are a few that might impact your practice, whether you are an adjuster, employer, or someone just interested in workers’ compensation.
California Assembly Bill 5 – Uber Beware!
One of the most important changes, if not the most important change, in California Worker’s Compensation practice is the passage of California Assembly Bill 5 or AB 5. The bill impacts California’s “gig economy.” As of January 1, 2020, workers long-considered independent contractors, such as rideshare drivers, are now legally classified as employees. AB 5 impacts Workers’ Compensation because, when these former independent contractors become employees, they will be entitled to workers’ compensation benefits. It would be logical to expect an increase in workers’ compensation claims filed by these newly classified employees. However, it ain’t over ‘til it’s over: Uber and Lyft are challenging AB 5 by trying to reverse this with a ballot measure next year!
Colamonico v. Secure Transportation – Don’t Forget to Object!
Until recently, the Workers’ Compensation Appeals Board (WCAB) has usually found that defendants cannot raise the reasonableness of a medical-legal cost (medical-legal evaluations, copy service charges, etc.) if they fail to issue a timely objection, along with an Explanation of Review (EOR). In Colamonico, defendant failed to timely issue EORs for a lien claimant’s copy services, and initially, the Worker’s Compensation Judge determined that defendant waived all objections to the reasonableness of the unpaid portions of the billing. The WCAB reversed the judge’s decision and held that, for a medical-legal lien claimant to prevail, they must establish: (1) the existence of a contested claim; (2) the expenses were incurred for the purpose of proving or disproving the contested claim; and (3) the expenses were reasonable and necessary at the time they were incurred. Consequently, Colamonico impacts our practice since failure to object to a copy service bill will not automatically result in an award of payment to the lien claimant. Keep in mind that it is good practice anyway to issue timely objections, if necessary, as soon as these bills are received!
Meadowbrook Insurance Company v. WCAB – Don’t Forget Those EORs!
Senate Bill 863 gave injured workers the right to interpreter services at medical treatment appointments. However, a new fee schedule for interpreter services has not been adopted, despite the amendment of Section 9759.3 of the California Code of Regulations to cover interpreter services at medical treatment appointments. The Appeals Board has also held that interpreter lien claimants are not required to get a second review of their bills, and that interpreter fee disputes are not subject to Independent Bill Review (IBR).
In Meadowbrook, the Court of Appeal held that, when an interpreter lien claimant fails to follow required bill procedures, its bill will be considered satisfied. The court said that Sec. 9795.3 already has the appropriate fee schedule for interpreting services. Because there is a fee schedule, the interpreter is required to request a second review of its bill when there is a payment dispute. If the interpreter fails to do that and requests an IBR, its lien is barred under Labor Code Section 4603.2(e)(2). Specifically, the court noted that interpreter lien claimants and others must request a second review within 90 days of an EOR when there is a payment dispute. Failure to do so deems the bill satisfied. This decision is very helpful to defendants because an interpreter’s bill is considered satisfied if the interpreter does not request a second review. Just remember that EORs must be timely issued in response to the bill!
California Assembly Bill 749 – Time to Tinker with Those ol’ Settlement Provisions!
AB 749 deals with the “no rehire” provisions we usually see in settlement agreements where employees agree not to reapply for their jobs. The new law took effect January 1, 2020, and prohibits and nullifies “no rehire” provisions in settlement agreements. Keep in mind that an employer will not be required to rehire and continue to employ a person when there is a legitimate reason for refusing to rehire or for terminating employment. What is unclear, however, is whether a workers’ compensation claim is considered an employment dispute under AB 749. But Labor Code 132a claims might very well be, so watch out! To be on the safe side, these “no rehire” provisions should be removed from all future settlement agreements.
There you have it – a few of the important updates in the world of Workers’ Comp for 2020!