Start of a New Year Brings Several Work Comp Changes

Friday, January 16, 2009 | 1

Happy New Year! Traditionally, most changes to the law become effective on the first of January each year. This year, there have been some significant changes in workers compensation practice, which we highlight in this edition.

Medical Fee Schedule Changes.
The start of 2009 brings changes to the Official Medical Fee Schedule, designed to bring fees into line with Medicare.

Effective Jan. 1, 2009, changes have been made to the Official Medical Fee Schedule regarding the calculation of and amount payable for ambulance fees; durable medical equipment, prosthetics, orthotics and supplies; and pathological and clinical laboratory fees.

You can find information about current rates on the California Department of Industrial Relations website, accessible through the Mullen & Filippi website by clicking on Resources, then Legal Links, then Workers Compensation Appeals Board.

Mileage Rate Decreases.
In a refreshing change, effective Jan. 1, 2009, the mileage rate for medical and medical legal travel expenses decreased to 55 cents per mile. This rate applies to all travel after Jan. 1, 2009, regardless of the date of injury.

In July, 2008, the rate had increased to 58.5 cents per mile because of the drastic increase in gas prices. This reduction in the rate recognizes the recent decrease in gas prices. Although the rate was not brought back down to the 50.5 cents per mile in effect before July, this is certainly a step in the right direction.

The End Of Vocational Rehabilitation.
We all knew it was coming. As of Jan. 1, 2009, the vocational rehabilitation benefit, as it existed before Jan. 1, 2004, is no more.

Labor Code section 139.5, which preserved the right to vocational rehabilitation benefits for injuries prior to Jan. 1, 2004, was repealed effective Jan. 1, 2009. The Rehabilitation Unit has been transitioned into the Retraining and Return to Work (RRTW) Unit, which will assist employees in obtaining supplemental job displacement benefits and educate and assist employers with return to work issues.

The Repeal of Section 139.5 was built into the statute, and should not come as a surprise to anyone. As far as what this means for existing claims, according to a news bulletin issued by the DWC in October, 2008, The DWC has informed the community at various times over the past year that the Rehabilitation Unit does not have statutory authority to order vocational rehabilitation services or benefits . . . beyond Jan. 1, 2009. Since there is now no enforcement method for compelling an employer to provide vocational rehabilitation services for pre-2004 injuries, those injured workers who have not yet sought such benefits are apparently now out of luck.

Or maybe not. WCAB Deputy Commissioner Neil Sullivan informed WorkCompCentral in October, 2008 that WCABs position is that it still has jurisdiction to determine whether injured workers are entitled to vocational rehabilitation even after Jan. 1, 2009. Whether this jurisdiction applies only to claims for vocational rehabilitation services which were in process before Jan. 1, 2009, or extends to claims for future benefits, is disputed.

We can anticipate that this will be an issue for litigation in the coming year.


The Mullen & Filippi Bulletin was reprinted from the law firm's website.