Grinberg: AB 1213: Extra TD for IMR Overturns

Tuesday, May 9, 2023 | 1

I think if our dear friends and family members were to visit us in California, they would expect to see certain things. If they were here for a week without Sacramento trying to crush another swath of California’s businesses, they’d feel like they missed out.

Gregory Grinberg

So it only makes sense that we take a look at Assembly Bill 1213, which just passed through committee at the end of April. What does AB 1213 do? Well, what doesn’t it do?

A lot, to be fair, but primarily, AB 1213 exempts any periods of temporary disability pending independent medical review of treatment (and eventual overturn) from the temporary total disability cap of Labor Code Section 4656.

So let’s take a scenario. Applicant has a date of injury of Jan. 1, 2020. He goes on TD, which would be exhausted by Jan. 1, 2022, as per 4656(c). Well, if applicant’s primary treating physician submitted a request for authority on March 1, 2020, and utilization review came back with a denial on March 6, 2020, all the periods from the date of that denial to the IMR overturn would not count toward the 104-week cap.

What do we need to do if AB 1213 becomes law? Well, in every file, we set reserves and value cases based on a range of exposure, factoring maximum exposure, of course.  How can defendants adequately set reserves or value cases for settlement when there is almost a perpetual TD range?

It’s not all doom and gloom, of course. In 2021, IMR upheld 92.8% of UR denials. The ultimate impact is going to be limited. But this isn’t the only squeeze California’s employers and insurers are feeling from Sacramento. There seems to be pressure from every end to make $100 in payroll more and more expensive for businesses in California. 

Now, if life were fair, and California were interested in seeing justice for both employer and employees, when IMR denies a method of treatment and the PTP has no other suggestions that are likely to change applicant’s condition substantially in the next year, as contemplated by 8 CCR 9785(a)(8), then we would also have regular findings that applicant is permanent and stationary retroactively to the date of a UR denial, once the IMR appeal has been exhausted. We would also have TTD overpayment credit as a matter of right, rather than judicial discretion. 

What is good for the goose is good for the gander, after all, no?

But instead, we see a continuous stream of policies and rulings that disproportionately favor applicants at the expense of defendants in workers’ compensation.

The secret to youth, I have found, is to maintain that adolescent naivete that objects to injustice and life being unfair. That is how I maintain feeling like a 20-year-old.

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.