December is the 12th and final month of the year in the Julian and Gregorian calendars. The origin of its name comes from the Latin word decum, or ten, as it was originally the tenth month of the year in the Romulus calendar, which began in March. Interestingly, the two-month period following December was a month-less period. Subsequently, the months of January and February were added to the beginning of the calendar year, but December retained its name.
Although the months that encompass our Holiday season have shifted, our gratitude and hope for each of you remains the same. We wish you all a Happy Holiday and New Year!
DWC POSTS ADJUSTMENTS TO MEDICAL TREATMENT UTILIZATION SCHEDULE (MTUS)
The Division of Workers’ Compensation (DWC) recently posted an order to update the evidence-based treatment guidelines of the MTUS, adjusting the hospital outpatient department, ambulatory surgical center, and the ambulance services sections of the Official Medical Fee Schedule (OMFS) after the Centers for Medicare and Medicaid Services updated its hospital billing rules, as required by Labor Code Section 5307.1.
The order for adjustments to the OMFS for hospital outpatient departments and ambulatory surgical centers applies to services rendered on or after October 1, 2021; whereas the order for adjustments to the OMFS for ambulance services is effective for services rendered on or after January 1, 2022.
SIBTF DRIVES COST OF DEPARTMENT OF INDUSTRIAL RELATIONS ASSESSMENT INCREASE
On November 29, 2021, the Department of Industrial Relations (DIR) sent letters to carriers and self-insured employers that show that the DIR needs to collect $1.377 billion from California employers for the fiscal year that ends June 30, 2022. This represents an increase of $270 million compared to the $1.107 billion assessment for the fiscal year that ended in June 2021.
The Subsequent Injuries Benefit Trust Fund (SIBTF) was created in 1945 to encourage employers to hire employees with pre-existing disabilities. The SIBTF, which is administered by the DWC, pays a portion of the permanent disability benefits owed when the combined effect of a preexisting condition and a subsequent injury results in at least 70% permanent disability.
The SIBTF is driving nearly three-quarters of the increase in the DIR assessment for the current fiscal year. The $201 million increase in the assessment for the SIBTF for the current fiscal year accounts for almost 75% of the overall increase in the DIR assessment.
According to WorkCompCentral, the DIR is working on a study of SIBTF claims, trends, and an analysis of decisions made in other jurisdictions to maintain second injury funds or eliminate them. Over a dozen states, including New York and Florida, have closed programs similar to the SIBTF over the last 30 years.
The $372.1 million assessment represents the amount the amount the DIR believes it will require to cover the cost of the SIBTF program from the second half of 2021 through the first half of 2022. Of this amount, $328.3 million will be collected from employers after accounting for fund balances and overpayment credits.
COVID-19 CLAIMS CONTINUE TO FALL AFTER SUMMER SURGE
The California Workers’ Compensation Institute (CWCI) reported that the summer surge of COVID-19 claims appears to have run its course, as the number of COVID-19 claims reported to the DWC in October have reduced dramatically. The projected claim count for October fell to just 3,621 cases, which is 56% less than the 8,197 claims projected in the summer peak month of August.
Recent figures from the CWCI’s COVID-19/Non-COVID-19 Interactive Application, based on claims reported to the DWC as of November 15, 2021, “show that after declining steadily from January through May of this year, the number of work-related COVID claims increased more than tenfold between May and August, climbing to the highest level since January as the state’s economy fully reopened and the Delta virus spread throughout the state. Additional claims from September and October are still being reported, but the COVID-19 claim totals reported as of November 15 show that the DWC has recorded 3,671 claims with September injury dates and 2,743 claims with October injury dates.”
Although COVID claims have accounted for 15.6% of work-related claims since the onset of the pandemic in early 2020, the recent data suggests that vaccines and workplace safety measures are having positive effects. Indeed, COVID-19 claims represented 15.6% of all work-related claims through October and just 6.1% of all claims with October dates of injury.
NEW CASE BRIEF AVAILABLE
This month, Managing Associate Attorney Brock Roverud and Associate Attorneys Clair Meredith, Ashley Mohammadi, and Treanna Garza of our Fresno office provide a discussion of the recent WCAB decision in Harrison v. Canyon Springs Pools and Spas, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 234. In Harrison, the WCAB denied reconsideration and affirmed a WCJ’s finding of good cause to set aside an Order Approving Compromise and Release based on mutual mistake, when the Compromise and Release contained a zero-dollar Medicare Set-Aside. Our Fresno team provides an in-depth analysis as to when a zero-dollar MSA is appropriate and why defendants should be particularly cautious when relying on a zero-dollar MSA for settlement.
In our last Bulletin, we discussed the Applied Materials decision, in which the Court of Appeals for the Sixth Appellate District found an injured workers’ Post Traumatic Stress Disorder (PTSD) from a sexual relationship with her primary treating physician to be a compensable consequence of her industrial injuries. However, the WCAB did not have substantial evidence to find that Applicant was permanently totally disabled (TPD) on a psychiatric basis.
Unbeknownst to this author at the time of our last publication, Nic Tse, an Associate Attorney in our Oakland office, was the defense attorney in the Applied Materials case.
On Petition for Review, Mr. Tse successfully argued that the WCAB erred in awarding a 100% PTD, arguing, in part, that the 2005 rating schedule controlled pursuant to the Fitzpatrick decision and that applicant was not permanently totally disabled “in accordance with the fact” pursuant to the LC Section 4662.
Congratulations, Nic on this defense win!
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.