Tag: Workers Comp

California employers will have less time to accept liability on certain presumptive injury claims and face penalties of up to $50,000 for unreasonably denying them, under a bill signed by Gov. Gavin Newsom on Thursday.

The governor also extended the presumption that COVID-19 is compensable through 2024 and signed a bill giving the insurance commissioner more authority to meet with county prosecutors, insurers and self-insured employers to discuss potential fraud.

S.B. 1127 cuts the window for employers to determine liability on claims for injuries that are presumed compensable when suffered by first responders, to 75 days from 90. The shorter time frame applies to presumptions in Labor Code Sections 3212 through 3212.85, and 3212.9 through 3213.2.

The bill allows firefighters and peace officers to receive up to 240 weeks of temporary disability benefits for presumptive cancer claims rather than the 104 weeks of TD available to other injured workers.

And it creates a penalty equal to five times the amount of delayed benefits, capped at $50,000, for unreasonably denying any presumptive injury claim identified in Labor Code Sections 3212 through 3213.2.

A.B. 1751 keeps the COVID-19 presumption in place for only one more year — until Jan. 1, 2024.

The governor vetoed two comp measures: A.B. 334, which would have given peace officers for the Departments of Fish and Game and Parks and Recreation a presumption that skin cancer is compensable, and S.B. 284, which would have included additional firefighters, peace officers and safety dispatchers in a PTSD presumption that took effect in 2020.

 

 

 

 

The California Division of Workers’ Compensation on Friday proposed changes to its qualified medical evaluator rules that would allow an extra 30 days to schedule appointments.

Instead of requiring a qualified medical evaluator to evaluate an injured worker within 60 days of being selected from a panel, the proposed rule would require that the exam be held within 90 days. The longer time frame will apply to requests for a comprehensive medical-legal evaluation and to requests for a follow-up evaluation.

The DWC said in an initial statement of reasons that it is proposing the change to increase the availability of physicians and reduce the number of replacement QME panels it has to issue.

“In 2021, when this regulation was in place we saw a decrease in replacement panel requests ostensibly because physicians had available appointments within these time frames,” the DWC said. “In 2019, the DWC replaced 24,995 panel codes because a physician was not available in 60 days, while in 2021, when the time for scheduling was 90 days, the DWC replaced only 10,267 panel codes for this reason.”

The proposed rules would also define remote health evaluations and outline criteria for when med-legal evaluations can be done using video conferencing or similar technology. The rules would allow remote exams when there’s a disputed medical issue involving causation, termination or indemnity benefits or work restrictions and the parties agree to the evaluation.

Remote exams must be consistent with the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and the physician must attest that there is no need for a physical exam.

The division said the rules will also allow for electronic service of documents.

The DWC is holding a public hearing on the proposed rules on Nov. 15.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

 

 

An appeals court in Texas on Wednesday ruled that a military contractor must prove a worker was an employee to avoid a “substantial jury award” over negligence stemming from a workplace accident in 2016.

Addison, Texas-based King Aerospace, hired by the U.S. Army to maintain aircraft, was sued by Jorge Hernandez, who fell from a ladder while painting the wing of a plane and was seriously injured. The negligence suit, of which King fought, stating it was the employer, a subscriber to the workers compensation system in Texas, and thus immune to lawsuit per the exclusive remedy clause in workers comp law, resulted in a jury award of “over a million dollars,” according to Jorge L. Hernandez. v. King Aerospace, filed in the Court of Appeals of Texas, Eighth District, El Paso.

King contracts with the U.S. Army to service aircraft at Fort Bliss Army Base. While King directly hires many of its own permanent employees, it often needs additional skilled individuals on a temporary basis, including aircraft maintenance specialists. King often relies on Aircraft Technologies Group, which employs trained and experienced maintenance specialists. Mr. Hernandez was an ATG employee who had been selected by King to work on several projects beginning in 2013, according to the ruling.

A jury trial found that Mr. Hernandez was not an employee of King and despite that finding, a trial court ultimately concluded that Mr. Hernandez was King’s employee and entered a take nothing judgment in King’s favor.

The appeals court, in reversing and remanding, wrote that “a genuine issue of material fact governs the employment question” and that “the record contains some conflicting evidence of probative force over whether Hernandez was an employee of King at the time of the accident.”

“Even considering the contrary evidence that King advances, it did not conclusively establish that it was Hernandez’s employer at the time of his accident for purposes of the exclusive remedies provision in the Workers’ Compensation Act. As a result, we agree with Hernandez that the trial court erred in disregarding the jury’s verdict,” the court wrote.

 

 

 

 

 

The Department of Industrial Relations’ Division of Workers’ Compensation and its Anti-Fraud Unit suspended 178 medical providers during the first eight months of 2022. 

Providers are suspended from the workers’ compensation system when they have been convicted of fraud-related crimes, have been suspended from the Medicare or Medicaid programs due to fraud or abuse, or have lost their professional license, according to a statement issued Thursday.

Since 2017, a total of 649 providers have been suspended from participating in California’s workers’ compensation system.

DWC has also initiated new lien consolidation cases estimated at $75 million for providers who were convicted of fraud-related crimes in 2022. During lien hearings, medical providers have an opportunity to prove the billing is legitimate. If the providers are unable to produce such evidence, the liens are dismissed. 

A total of 63,000 liens have been dismissed since 2017 with a value of nearly $775 million.

There are currently 86 criminally charged providers with 516,000 liens designated as stayed. The stays prevent criminally charged providers from seeking payment for their liens while the criminal case is pending.

 

 

An Oregon State University study found an association with increasing temperatures and increased rates of injury claims that were more pronounced among workers in the agricultural and construction sectors.

The study analyzed about 92,000 accepted claims and found that the rate of injuries is about 4% higher when the maximum heat index exceeds 75 degrees. The incident ratio for agriculture and construction workers is 14% higher.

When the heat index hits 115 to 119 degrees, the incident rate is 11% higher than the average rate at temperatures of 74 degrees or cooler.

“While it is well understood that agricultural and construction industries have high rates of traumatic injuries, the findings suggest that these industries have gradually higher IRRs as temperatures increases,” the study says. “The question that needs to be investigated is why.”

Researchers said they also found a relationship between the presence of wildfire smoke and increased rates of injury claims among all workers. However, once the heat index was included in the same model, the results for wildfire smoke became “insignificant.”

“This could be due to the high correlation between heat levels and wildfire smoke or the exposure metrics used for wildfire smoke,” the study says.

The Biden administration in September 2021 announced that the Department of Labor and the Occupational Safety and Health Administration are implementing an enforcement initiative on heat-related hazards, launching a rulemaking process to develop a workplace heat standard and developing a national emphasis program on heat inspections.

California Gov. Gavin Newsom earlier in September signed A.B. 1643 creating a study group to analyze the effects of high heat on workers and the state’s economy. The group will be tasked with addressing issues such as the amount of time missed from work due to heat, the frequency of workplace injuries at different temperatures and potential underreporting of heat-related injuries and illnesses. The final report is due Jan. 1, 2026.

 

 

California workers compensation insurers and self-insured employers can add licensed clinical social workers to their medical provider networks, under a bill signed by Gov. Gavin Newsom on Tuesday.

S.B. 1002 authorizes “qualified licensed clinical social workers to assess, evaluate and treat the behavioral and mental health needs of injured workers within the workers compensation system, thereby providing additional and readily available resources to injured employees who need mental health services.”

The bill allows licensed clinical social workers to join MPNs, workers compensation health care organizations and joint powers authority provider listings. Social workers must have earned a master’s degree or equivalent and either logged two years of clinical experience or satisfied the standards of the Association of Social Work Boards to be eligible to join a provider network.

Social workers are not authorized to determine disability, and they can only treat or evaluate an injured worker with a physician referral.

S.B. 1002 also amends Labor Code Section 4600(a) to add “licensed clinical social worker” to the list of medical services that must be provided when reasonably required to cure or relieve a worker from the effects of an industrial injury.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

 

 

The Occupational Safety and Health Administration is proposing $201,379 after finding a candy manufacturer’s plant in Bellwood, Illinois, continues to expose workers to amputation hazards and failed to utilize lockout procedures for the third time in five years.

OSHA said Wednesday that it has issued five citations to Wilkes Barre, Pennsylvania-based Ferrara Candy Co. for one repeat violation and four serious safety violations after responding to a complaint of unsafe working conditions in April.

OSHA inspectors found workers exposed to amputation hazards because the company failed to utilize energy control procedures – such as lockout/tagout – before workers cleared jams and serviced equipment.

In addition to citations for failing to provide specific lockout/tagout procedures, OSHA cited the company for not providing access to an eyewash station and for allowing workers to operate powered industrial vehicles while in disrepair.

The company has 15 days to contest the citations.

 

 

An Indiana-based contractor who conducted work in Kentucky but failed to disclose the out-of-state operations to its workers compensation insurer is on the hook for a workplace injury, a federal appeals court ruled Tuesday, affirming a lower court decision.

Custom Mechanical Construction Inc. in Evansville, Indiana, had an insurance policy with Accident Fund Insurance Co. of America at the time of the workplace accident, after which the worker, who fell and suffered serious injuries, filed a workers comp claim. Schultheis Insurance Agency and agent Lee Sublett procured the policy for CMC, but Schultheis failed to inform Accident Fund that CMC did business in Kentucky, according to Accident Fund Insurance Co. of America v. Custom Mechanical Construction Inc. et. al, filed in the U.S. 7th Circuit Court of Appeals.

Although most of its jobs are in Indiana, CMC has been registered to do business in Kentucky since 2009. Mr. Sublett has worked with CMC since it opened in 2005 and claimed “he was not aware that CMC performed work in Kentucky until the accident at the center of this litigation, but it is undisputed that CMC completed jobs in Kentucky over the years,” according to the ruling.

Accident Fund filed suit in federal court, seeking a declaration that its policy does not cover the claim. The district court granted summary judgment in favor of Accident Fund. On deciding whether CMC’s insurance policy with Accident Fund covers workers comp claims for workers who are injured outside of Indiana, the appeals court affirmed, as “CMC indisputably never notified AFICA that it had work (or began work) in Kentucky.”

 

 

 

A Brockton, Massachusetts-based contractor failed to adequately train its workers on a demolition plan and safety management system, resulting in a worker dying in a floor collapse this year, the Occupational Safety and Health Administration announced Tuesday.

JDC Demolition Company Inc., while working on the eighth floor of the Government Center garage in downtown Boston on March 26, saw its 11,000-pound excavator and operator fall 80 feet from a partially demolished floor.

OSHA found that on the morning of the collapse, another heavy equipment operator told the foreman they had concerns about the floor’s safety and despite an employee raising safety concerns to the foreman, another employee was assigned to operate the excavator.

That worker, who died on his first day at the job site, never received a safety briefing and was not trained to follow the engineer’s demolition plan, according to OSHA.

OSHA also found that JDC Demolition deviated from the demolition plan by imposing unsafe loads, in the form of heavy equipment, on the partially demolished seventh, eighth and ninth floors. The demolition plan prohibited the placement of heavy equipment on partially demolished floor bays.

As a result, OSHA cited the company for eight egregious-willful violations, two serious violations and one other than serious violation of workplace safety standards and proposed $1.2 million in penalties.

The willful citations address the training and loading violations; the serious and other than serious violations are regarding the inadequate accident prevention program, uncovered floor holes and insufficient recordkeeping.