With the end of summer fast approaching, we hope that you all have had ample time to step away from your desks to soak up the sun or sit in the shade with friends and family. To those with kids, we hope that the recent transition back to school has been seamless. As we head toward the final quarter of the year, we at Mullen and Filippi wish you a safe and healthy end to the beautiful summer that we’ve all enjoyed.
IN-PERSON WALK-THROUGHS RETURN NEXT MONTH
On August 9, 2022, the Division of Workers Compensation (DWC) announced that all district offices other than Eureka will accept in-person walk-throughs beginning on September 6, 2022, pursuant to Title 8 CCR Section 10789.
Further, the DWC announced that it will no longer accept virtual walk-through appearances, which were put in place because of the COVID-19 pandemic, via the Lifesize platform.
Walk-throughs are available Monday through Friday, except when the district offices are closed on holidays.
The DWC continues to accept by mail or e-filing, any documents that require action by a judge, including walk-throughs.
QME EMERGENCY TELEHEALTH REGULATION IN EFFECT THROUGH OCTOBER 18, 2022
On July 20, 2022, the Department of Industrial Relations (DIR) announced that emergency regulation Section 46.3, which became effective on January 18, 2022, and was set to expire on July 18, 2022, will remain in effect until October 18, 2022.
Emergency regulation Section 46.3 allows medical-legal evaluations to be performed via telemedicine by electronic means, where the physician and the injured worker are not in the same physical space during the examination.
In its announcement, the DIR noted that the regulation assists injured workers and their employers to avoid delays and move claims toward resolution.
CWCI EXAMINES ISSUES IN REDUCING COMPENSABILITY DETERMINATION TIMELINE
The California Legislature is considering reducing the amount of time claims administrators have to investigate the compensability of claims before issuing a liability determination. If passed by the California Legislature, Senate Bill 1127 would reduce the investigation period for claims in which injured workers are given a liability presumption from 90 to 75 days, while the investigation period for other claims would remain unchanged.
According to a recent Impact Analysis Report by the California Workers’ Compensation Institute, the proposal to reduce the amount of time claims administrators have to investigate and make a liability determination may be easier said than done, because of the complex statutory and regulatory timeframes involved with the investigative process – many of which are beyond the control of the claims administrators.
The CWCI report examines various issues associated with the proposed reduction in the timeframe to investigate claims to evaluate the impact of the proposals. According to the CWCI, the key findings include:
- Accepted claims without litigation are the most frequent, least complex claims in the system. In 98.0 percent of these claims, compensability is determined within 90 days, while in 96.7 and 93.2 percent of these claims, the decision is made within 60 and 30 days respectively. When non-litigated and litigated non-COVID-19 claims are combined, more than 90 percent have a decision within 75 days. Decreasing the investigative period for such claims would have a limited impact in terms of expediting the compensability decision process.
- Investigation periods are longer for litigated and denied claims and require significantly more time to gather reports and documentation from outside sources. For example, at 75 days, only 49.2 percent of litigated claims that are eventually denied have a compensability decision, strongly suggesting that under current rules and regulations, 75 days is an insufficient amount of time for claims administrators to obtain the medical and factual evidence required to make a compensability determination.
- Under current law, employers are already liable for up to $10,000 of medical treatment for a claimed injury during the investigation period, regardless of the ultimate compensability decision, so reducing that time frame would also reduce the amount of time that workers whose claims are eventually denied could receive that $10,000 worth of medical care.
- Determining compensability is particularly challenging and time consuming for COVID-19 claims, especially those that are litigated. At the 45-day mark, 91.4 percent of accepted, non-litigated COVID-19 claims have a compensability decision, compared to 68.9 percent of the accepted COVID-19 claims that are litigated, a 22.5 percentage point difference. At 30 days, determinations have been reached on 85.5 percent of accepted, non-litigated COVID-19 claims, compared to 61.1 percent of the litigated COVID-19 claims that were accepted, a 24.4 percentage point differential.
- Efforts to reduce the investigation timelines as proposed in prior and current legislation would create compensability determination thresholds that are unnecessary for accepted claims and unrealistic for litigated claims.
The CWCI’s findings show that reducing investigative timelines as proposed in Senate Bill 1127 would not expedite compensability determinations for accepted claims and would create determination thresholds that are unrealistic for denied claims.
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.