Change Is In The Air

Monday, September 22, 2008 | 0

By Mullen & Filippi

It’s September and change is in the air. The kids are back in school, the days are getting shorter, and both presidential candidates have declared change to be part of their political platforms. In this atmosphere, this edition of the Bulletin looks at changes affecting our community.

EAMS has launched

The biggest change affecting workers’ compensation practice in a long time is the launch of the new Electronic Adjudication Management System (EAMS).

EAMS went live on Aug. 25. Although the Department of Industrial Relations is still in the process of developing regulations, parties are being encouraged to begin switching over now. In particular, although not required until regulations are implemented, probably in mid-October, parties are encouraged to start using the new OCR forms, which are accessible on the WCAB’s website.

Note that the forms themselves are still being developed, and the WCAB has instructed that parties check its website for the current version of the forms, and to use only the version on the website. We are also learning that the various Board offices are implementing the new forms to different degrees – as of the date of publication of this Bulletin, the San Francisco Board only wanted OCR forms for the Declaration of Readiness and the Application for Adjudication; the Oakland Board wanted OCR forms for all documents filed. Before filing anything, we recommend that you check with your favorite attorney for current local requirements.

While major changes are seldom without challenges, and this is no exception, the WCAB anticipates that, when fully implemented, EAMS “will simplify and improve the DWC case management process.” That is a change to look forward to.

More Changes to Come?

Several workers’ compensation bills passed by the legislature are awaiting the governor’s signature, or veto, and have the potential for significant change.

WorkCompCentral reported on Sept. 3 that nine workers compensation measures have passed the legislature and await Governor Schwarzenegger signature or veto. Four are of particular concern to industry groups, including SB 1115, which would ban apportioning medical causation based on criteria generally considered discriminatory, including genetics, gender, and age; SB 1717, which would phase in increases in weeks of disability benefits, effectively doubling them after three years; AB 419, which would expand the categories of public safety officers eligible for Labor Code Section 4850 benefits; and AB 2969, which would require utilization review doctors to be licensed in California. SB 1115 is perceived as unnecessary, and duplicative of existing discrimination laws. All are perceived as potentially increasing workers’ compensation costs.

It has been widely reported that Governor Schwarzenegger vowed to veto all legislation presented to him until a state budget was passed. While the legislature finally passed a budget on September 16, 2008, late reports were that the governor was not pleased with it and intended to veto the budget. Although legislators claim they can override his veto, it is uncertain what effect the passage of a budget will have on the governor’s vow to veto other legislation. News reports on Wednesday, September 17, stated that he still intended to veto most of the legislation sent to him, although he may give further review to bills affecting business and the economy. We will just have to wait and see.

Some things remain the same.

Even when most of the world seems to be changing, we can take comfort that some things stay constant.

On Sept. 10, the California Supreme Court declined review of the Court of Appeal decision in Facundo-Guerrero v. WCAB (2008) 163 Cal. App. 4th 640. In that case, the Court of Appeal held that Labor Code Section 4604.5(d)’s limitation to 24 chiropractic, 24 physical therapy and 24 occupational therapy visits per injury, is a valid exercise of the legislature’s plenary power to determine the limits of the workers’ compensation system, and does not violate the state constitution. The court held that, while an employer may approve more than 24 visits, the decision to do so is solely within the employer’s discretion, and refusal to award more treatments cannot be the basis of a legal dispute. The Court of Appeal decision is now final and binding.

Mullen & Filippi is a workers' compensation defense law firm with offices throughout California. This column is reprinted with the firm's permission from its quarterly newsletter to clients.